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2014 DIGILAW 893 (PNJ)

Ved Parkash v. State of Haryana

2014-05-21

BHARAT BHUSHAN PARSOON

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JUDGMENT Dr. Bharat Bhushan Parsoon, J. :- Details of the Appeal This appeal is directed against judgment of conviction dated 28.1.2010 and order of sentence dated 29.1.2010 passed by Special Judge, Ambala vide which accused-appellant Ved Parkash was held guilty in case FIR No.58 dated 22.9.2006 registered at Police Station, State Vigilance Bureau, Ambala for commission of the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter mentioned as the Act) and was sentenced as under: ----------------------------------------------------------------------------------------------------------------------------------------- Offence Sentence In default ----------------------------------------------------------------------------------------------------------------------------------------- Under Section 7 of the Act. RI for one year and fine of Rs.1,000/- RI for one month Under Sections 13 (1)(d) RI for two years and fine of Rs.2,000/- read with Section 13(2) of the Act ----------------------------------------------------------------------------------------------------------------------------------------- Details of the prosecution case 2. The prosecution case put in a narrow compass is being reproduced as below:- The appellant-convict (hereinafter mentioned as the accused) was posted as EHC in the State Vigilance Bureau, Ambala of the Haryana Police. Complainant Sonu Kumar was running a shop of Chat-Tikki. On 22.9.2006, complainant Sonu Kumar presented an application before Inspector Ved Parkash, State vigilance Bureau, Ambala which was addressed to the DIG and had been marked by the said DIG to him. It was averred that about 5-6 months ago, he had performed some job at village Babyal and in the evening, Rinku a resident of Chhota Shivala (who was already known to him) came to him and asked about the location of house of Goyal cyclewala and as said Goyal was known to him, he had pointed towards the house of said Goyal to Rinku. About 3-4 months later, a theft took place in the house of said Goyal for commission of which theft Rinku was apprehended by the police. He told the police that the complainant had disclosed the location of Goyal’s house to him. The complainant was whisked away by the police to CIA Staff, Ambala. However, upon interrogation, he was left off. On 21.9.2006, accused came to him and demanded Rs.5,000/- as his fee on the plea that he had saved him from the theft case. The complainant did not want to pay the bribe but the accused was insisting upon for payment of the bribe amount. Planning of the trap 3. However, upon interrogation, he was left off. On 21.9.2006, accused came to him and demanded Rs.5,000/- as his fee on the plea that he had saved him from the theft case. The complainant did not want to pay the bribe but the accused was insisting upon for payment of the bribe amount. Planning of the trap 3. The complainant produced Rs.5,000/- in cash containing three currency notes of the denomination of Rs.1,000/- each, three currency notes of the denomination of Rs.500/- each and five currency notes of the denomination of Rs.100/- each to the Inspector, Vigilance Bureau. All the currency notes were taken into police possession, a list whereof was prepared. Inspector Ved Parkash had put his initials on the currency notes and had also applied phenolphthalein powder (P. Powder). The currency notes were thereafter handed over to the complainant, who was directed to hand over the same to the accused on specific demand. The complainant was accompanied by shadow witness Ramesh Kumar s/o Krishan Lal. The shadow witness was instructed to hear the conversation between the complainant and the accused and then to give a pre-determined signal to the rest of the trap party on receipt of bribe amount by the accused. Laying of the trap 4. A raiding party was constituted. Shri O.P. Ranga, DRO was appointed as duty officer by the Deputy Commissioner, Ambala. On getting the appointed signal from the shadow witness, accused Ved Parkash was apprehended by the Investigating Officer in front of milk dairy of Raju on Mandir Road in Nadi Mohalla and Rs.5,000/- were recovered from the pocket of shirt of the accused. The numbers of currency notes were compared by the duty officer with the details in the list already prepared in pre-trap memorandum and the same had tallied. Then solution of sodium carbonate with water was prepared by Inspector Ved Parkash and hands of the accused were separately dipped in the said solution which had turned pink. Similar was the result, when such fresh solution was prepared and relevant pocket of the shirt of the accused was dipped in such fresh solution. Hand wash as also pocket wash of the shirt of the accused were transferred in separate ‘nips’ which were duly sealed with seal of monogram ‘AK’ and the seal after its use was handed over to the duty officer. Hand wash as also pocket wash of the shirt of the accused were transferred in separate ‘nips’ which were duly sealed with seal of monogram ‘AK’ and the seal after its use was handed over to the duty officer. The accused was arrested, spot investigations were conducted, site plan was prepared and ‘nips’ were later sent to the Forensic Science Laboratory for analysis of the solutions therein. On receipt of report of the said laboratory and on completion of other necessary investigation, report under Section 173 Cr.P.C. was furnished against the accused. Charge against the accused 5. Charge under Sections 7 and 13(1)(d) read with Section 13(2) of the Act was framed against the accused to which he pleaded not guilty and claimed trial. Prosecution evidence and stand of the accused 6. To substantiate the charge under Section 7 and 13 of the Act against the accused, the prosecution had examined as many as nine witnesses in addition to production of documentary evidence. 6.1. In his statement recorded under Section 313 Cr.P.C., the accused had denied the prosecution case, claiming, innocence. He denied having demanded or accepted bribe and had also claimed false implication in this case. 6.2. Complainant Sonu Kumar appearing as PW2 and shadow witness Ramesh Kumar appearing as PW3 turned hostile and did not support the case of the prosecution. Findings of the trial court 7. The trial court relying on the testimony of duty officer O.P. Ranga, DRO, PW7 and of Inspector Ved Parkash, Investigating Officer, PW8, which is corroborative to with each other, and while rejecting the case of the defence, held the accused guilty and convicting him for commission of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act, sentenced him as mentioned in earlier part of the judgment. Grounds of Appeal 8. Challenging the finding of conviction as also order of sentence against him, the accused has claimed that neither any bribe had been demanded by him nor was accepted. It is averred that even presumption under Section 20 of the Act could not be raised against him. Grounds of Appeal 8. Challenging the finding of conviction as also order of sentence against him, the accused has claimed that neither any bribe had been demanded by him nor was accepted. It is averred that even presumption under Section 20 of the Act could not be raised against him. Referring to the complaint moved by the complainant to the DIG, wherein it was mentioned that having been found innocent, he was already let off, it is claimed that the trial court wrongly accepted version of the prosecution without there being any evidence to show complicity of the accused in commission of the alleged offence. It is claimed that there was no reason for the complainant to pay the bribe and there was no occasion for the accused to accept the same. It is claimed that recovery of money ipso facto was not sufficient to indict the accused. It is alleged that the case against him is false and fabricated. 8.1. Counsel for the appellant has further contended that members of the raiding party did not offer themselves for search before conducting search of the accused. Another contention raised on behalf of the appellant is that since the complainant and the shadow witness had turned hostile and had not supported the prosecution case, conviction of the appellant was illegal. Stand of the prosecution 9. Contention of learned counsel for the respondent, on the other hand, is that notwithstanding the fact of hostility of the complainant as also of the shadow witness, charge against the appellant-accused stood proved and merely because the appellant was exonerated in in-house probe, he does not get any benefit because the evidence brought during the trial by the prosecution was found sufficient by the trial court for proof of the charge against the appellant-accused. Asserting merit in the impugned judgment and order of sentence, prayer for dismissal of the appeal was made. Hearing of the parties 10. Counsel for the parties have been heard while going through the impugned judgment and order of sentence, grounds of appeal and evidence recorded by the trial court. Discussion follows: 11. Asserting merit in the impugned judgment and order of sentence, prayer for dismissal of the appeal was made. Hearing of the parties 10. Counsel for the parties have been heard while going through the impugned judgment and order of sentence, grounds of appeal and evidence recorded by the trial court. Discussion follows: 11. When Counsel for the appellant-accused has urged that entire case of the prosecution is tried to be built up in the vacuum, whereas there is neither demand nor acceptance of the bribe amount and there is no complicity of the accused at all, stand of the respondent-State on the other hand is that the impugned judgment being correct on facts as also in law, does not call for any interference. It is alleged that when recovery of tainted currency notes has been proved from possession of the accused, there is nothing which dilutes the strength of the prosecution case. Legal position explained 12. At the outset, it may be mentioned that to sustain a charge under Section 7 as also under Section 13(2) of the Act, the prosecution is required to prove that there was demand of bribe and further that pursuant to such demand, payment was made which was accepted as bribe. Only after proof of ‘demand’ and ‘acceptance’ of money as bribe, ‘receipt’ of money raises a rebuttable presumption against the implicity of the accused in terms of Section 20 of the Act to the effect that such payment was recovered as bribe. 12.1. In Subash Parbt Sonvane v. State of Gujarat, AIR 2003 SC 2169 , it has been held by the Hon’ble Supreme Court that for convicting a person under Section 13 of the Act, there must be evidence that the accused had demanded money from the complainant, which he accepted as bribe amount. In Union of India through Inspector, CBI v. Purnandu Biswas, 2005(4) RCR (Crl.) 517, it was further held by the Hon’ble Apex Court that when demand of illegal gratification is not proved, it was not enough that some currency notes were handed over to the public servant to make it as acceptance of gratification. It was held that the prosecution has a further duty to prove that what was paid, amounted to gratification. It was held that to raise presumption under Section 20 of the Act against the accused, prerequisites of demand and acceptance need to be proved. It was held that the prosecution has a further duty to prove that what was paid, amounted to gratification. It was held that to raise presumption under Section 20 of the Act against the accused, prerequisites of demand and acceptance need to be proved. Following these precepts of law, a Division Bench of Madhya Pradesh High Court in Hariram Patel v. State of M.P., 2012(1) RCR (Crl.) 804 had made it even more explicit. To the same effect is V. Venkata Subbarao v. State represented by Inspector of Police, A.P., [2007(1) Law Herald (SC) 1] : 2007 Crl. L.J. 754 where it was held that presumption that the money was accepted as motive or reward, cannot be raised, when demand by accused has not been proved. In this regard, reference may also be made to Amrik Singh v. State of Punjab, [2005(4) Law Herald (P&H) 706] : 2005 (4) RCR (Crl.) 310 and Prabhu Dayal v. State of Haryana, 1991(1) RCR (Crl.) 374. 12.2. So far as further application of law to the facts of the case is concerned, the following points are also noteworthy:- 1. Onus of proving the charge against an accused is always on the prosecution; 2. Prosecution is to prove its case beyond any reasonable doubt, whereas the defence is to create only a dent in the prosecution case by preponderance of evidence. In short test of proof beyond any doubt is not applicable in case of the defence. In this respect M.K. Harshan versus State of Kerala, AIR 1995 SC 2178 and Garapathi Sanyua Naik v. State of Karnataka, 2007(4) RCR (Criminal) 184 (SC) are being referred to; 3. Mere recovery of tainted currency notes from accused is not sufficient to connect the accused when substantive evidence in the case is not reliable. Reference may be made to Amrik Singh v. State of Punjab, [2005(4) Law Herald (P&H) 706] : 2005(4) RCR 9Criminal) 310, Anand Parkash v. State of Haryana, [2008(1) Law Herald (P&H) 557] : 2008(2) RCR (Criminal) 335, Shiv Narain Sharma v. State of Haryana, 2009(2) RCR (Criminal) 372, Raghu Nath Bansall v. State of Punjab, 2010 (2) RCR (Crl.) 430 (P&H) and to Criminal Appeal No.1619-SB of 2013 titled Jagdish Chander v. State of Haryana decided by Coordinate Bench of this Court on 30.1.2013; 4. Though non-joining of some independent witnesses ipso fact is no ground to discard the prosecution case, but when witnesses of the prosecution are not trustworthy and are rather of shady and questionable moral fibre, their testimony would be acceptable for proving guilt of the accused. Support is available from Darshan Lal v. Delhi Administration 1974 AIR (SC) 218. Sat Paul v. Delhi Administration, (1976)1 SCC 727 and Harbans Singh v. State of Punjab, [2009(2) Law Herald (P&H) 1088] : 2010(1) RCR (Criminal) 892 (P&H); 5. To raise a presumption under Section 20 of the Act, prerequisites of demand as also of acceptance of illegal gratification are to be proved by the prosecution. Reference for support of this propsition is available from V. Venkata Subbarao v. State of A.P., [2007(1) Law Herald (SC) 1] : 2007 Crl. L.J. 754, Union of India Thr. Inspector, CBI v. Purnanadu Biswas, 2005(4) RCR (Crl.) 517 and C.M. Girish Babu v. CBI, Cochin, High Court of Kerala; and 6. If on evidence and circumstances of a case, two views are possible, one supporting innocence of the accused is to be followed. Reference may be made to T. Subramanian v. State of T.N., (2006)1 SCC 401 . Initiating discussion of evidence and attending circumstances 13. Complainant is the pivot around which entire case of the prosecution practically revolves. Complaint by him which resulted in FIR (Ex.P8) though forms the foundation but in itself cannot be given the status of substantive evidence of stand alone character. 13.1. Before moving further for adjudication of rival claims of the contestants, it would be appropriate to take note of the charge sheet which the prosecution was required to prove against the accused. Charge against the accused 14. Formal accusation against an accused takes the form of charge-sheet. Crystalizing the accusation emerging from the report under Section 173 Cr.P.C. and the accompanying relevant documents and material, it is to be communicated to the accused to make him understand as to what allegations the prosecution ventures against him and what charge exactly he has to meet. 14.1. Formal accusation against an accused takes the form of charge-sheet. Crystalizing the accusation emerging from the report under Section 173 Cr.P.C. and the accompanying relevant documents and material, it is to be communicated to the accused to make him understand as to what allegations the prosecution ventures against him and what charge exactly he has to meet. 14.1. In the same language, wording and style, as it was communicated to the accused on 25.4.2007 by Special Judge, Ambala, the charge sheet in its relevant portion for convenience and clarity, is being reproduced:- “That on 22.9.2006 within the area of Police Station Ambala City i.e. Nadi Mohalla Ambala City, you were working in CIA-I Ambala on general duty and accepted Rs.5000/- from complainant Sonu Kumar for yourself, as illegal gratification other than legal remuneration, for helping him in a case of theft; and that you thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance. Secondly, on the same date and place, you being public servant working in the CIA-I, committed criminal misconduct by obtaining Rs.5000/- from complainant without any public interest by use of corrupt and illegal means and by abusing your official position as such public servant; and that you thereby committed an offence punishable under Section13(1)(d) of the Prevention of Corruption Act, 1988 and 13(2) of Prevention of Corruption Act, 1988; and within the cognizance of this Court.” 14.2. As is evident from this charge sheet, it is under two heads. One is under Section 7 of the Act, whereas other part of the charge is under Section 13(2) read with Section 13(1)(d) of the Act. 14.3. Glancing through the contents of the charge sheet, it emerges that:- (i) there was theft case pending against the complainant; (ii) accused posted in police force was in a position to help him; (iii) to achieve that end, he had demanded and then accepted Rs.5,000/- from the complainant as bribe; and, (iv) such demand and acceptance of bribe by the accused was pursuant to use of corrupt and illegal means by him. Discussion of evidence & attending circumstances 15. Discussion of evidence & attending circumstances 15. When it has been proved by ASI Ram Kumar PW9 and is also no more in dispute that the accused was posted as Head Constable and while working in CIA-I, was in the area of Nadi Mohalla Ambala City, there is complete lack of evidence that some criminal case was pending against the complainant wherein help was to be rendered by the accused in consideration of illegal gratification to be paid by the complainant on his demand. 15.1. Even when Investigating Officer Inspector Ved Parkash was examined as PW8, he had drawn blank on this aspect. 15.2. As goes the prosecution case, theft had taken place in the house of Goyal cyclewala for which one Rinku was found to be a culprit. On alleged interrogation of said Rinku it had emerged that he was told whereabouts of the house of said Goyal by the complainant. 15.3. There is no evidence or material with the prosecution to show that Sonu Kumar was named as accused in a theft case; there is no evidence to show that the complainant in any way was having any connection with the same. To cap it all, there is absolutely nothing on record to reveal that the accused was in any way connected with the investigation of any such FIR or was in any other way in a position to influence the investigations in a bid to help the complainant. The Investigating Officer was pointedly cross examined on this aspect, relevant portion whereof is as below:- “It is correct that accused was not having power to investigate. I had not recorded statement of any official of CIA Staff, Ambala. I had not tried to inquire as to whether Rinku was arrested by the police or CIA, Staff Ambala in any theft case or not. No copy of FIR against Rinku with regard to the theft was taken into possession. I cannot say if Rinku was involved in the theft or not. I had not come across any statement of Rinku having been recorded by any agency with regard to the theft. Rinku was neither interrogated nor associated by me. I had not recorded statement of Rinku or any other official of the CIA, Staff. I have not come in my investigation that if any Rinku was arrested by CIA Staff in any theft case or not.” 15.4. Rinku was neither interrogated nor associated by me. I had not recorded statement of Rinku or any other official of the CIA, Staff. I have not come in my investigation that if any Rinku was arrested by CIA Staff in any theft case or not.” 15.4. At this stage, it would be relevant to take stock of the version of complainant Sonu Kumar who was examined by the prosecution as PW2. He has not only denied any acquaintance with the accused but has also categorically mentioned that neither he knew him nor he had ever demanded or accepted any money from him. On request of the prosecution made to the court, this witness was declared hostile and was then cross examined by the prosecution. Despite very length probing and scrutinizing cross examination, nothing favourable to the prosecution emerged when he maintained his stand taken earlier that he had neither known the accused nor had paid any money much less as bribe to him on his demand. 15.5. As per the prosecution case, shadow witness Ramesh Kumar had witnessed passing over of bribe amount from the complainant to the accused, when it was so demanded by the accused from the complainant in his presence on the day of the raid. When testimony of Ramesh Kumar PW3 is evaluated for ascertaining its probative value, it becomes evident that no legal support is available to the prosecution even from his testimony. Relevant portion of his examination-in-chief is reproduced as below:- “I do not know the accused present in the court. Sonu complainant never gave any money to the accused in my presence, nor did the accused ever demanded any money from complainant Sonu.” 15.6. When this witness became unsupportive of the case of the prosecution, on its request, he was declared hostile and was cross examined at length. Cross examination of the prosecution on this witness for a considerable time when he was confronted with his alleged earlier statement Ex.P7, did not bring in any cheers for the prosecution as he stuck to his stand already disclosed in examination in chief. His deposition after the one made by complainant Sonu Kumar futher decimates the prosecution case against the accused. 15.7. His deposition after the one made by complainant Sonu Kumar futher decimates the prosecution case against the accused. 15.7. When the complainant as also the shadow witness have left the prosecution high and dry and have not lent any support to its case at all, there is absolutely no legally acceptable evidence that there was any demand of bribe to be paid by the complainant or that any such demand was accepted by the accused. In the interface of such state of affairs staring at face of the prosecution, mere recovery of currency note from the accused in presence of PW7 independent witness and the Investigating Officer ipso facto is of no legal value. Even there, the prosecution has faulted. Concededly, the Investigating Officer before catching hold of the accused had not even offered himself for his personal search by the accused. With this gaping hole in the prosecution case, even false implication of the accused is not ruled out. At this stage, plea of the accused made by him during the course of recording of his statement under Section 313 Cr.P.C., when incriminating material having come in prosecution evidence, was being put to him, is reproduced in his own words would be of avail:- “I am innocent. Nothing has been recovered from me. I never demanded any money from the complainant nor accepted anything from him. I have been falsely involved in this case.” 15.8. Thus, recovery of currency notes totalling Rs.5,000/- from the possession of the accused by itself is not sufficient to raise a presumption under Section 20 of the Act because pre-requisites of the demand as also of acceptance of illegal gratification have not been established by the prosecution. In absence of any evidence of demand having been raised by the accused or of acceptance of such bribe amount by the accused, there is no interplay of Section 20 of the Act. Sequelly, no legal help supportive of the prosecution case becomes available even from Section 20 of the Act. Conclusion 16. When foundation of the case of the prosecution is not to be seen, how the super-structure would stand on its own, remains unexplained by the prosecution. For the same reason, sanction order Ex.17 also does not bring in fresh steam for the sinking ship of the prosecution. 17. Conclusion 16. When foundation of the case of the prosecution is not to be seen, how the super-structure would stand on its own, remains unexplained by the prosecution. For the same reason, sanction order Ex.17 also does not bring in fresh steam for the sinking ship of the prosecution. 17. Sequelly, finding recorded by the trial court against the accused in the impugned judgment neither stands on facts nor on law, resulting in their reversal. 18. Consequently, the appeal is accepted, the impugned judgment is set aside. The impugned order of sentence concomitantly also falls and does not stand by itself. The accused is acquitted of the charge. His bail bonds are also discharged. ---------0.B.S.0------------