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2015 DIGILAW 1485 (PNJ)

Deepak Walia v. State of Punjab

2015-08-19

JITENDRA CHAUHAN

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JUDGMENT : Jitendra Chauhan, J. The appellant, namely, Deepak Walia, has preferred this appeal impugning the judgment and order dated 22.03.2004 (hereinafter referred to as 'impugned judgment') passed by the learned Special Judge, Patiala (hereinafter referred to as 'trial Court'), whereby, he has been convicted for the commission of offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short as the 'Act') and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000/- or in default of payment of fine, to further undergo rigorous imprisonment for a period of three months. 2. Brief facts of the case in hand, as noticed in para No. 2 of the impugned judgment, are being reproduced as under :- "According to the brief history of the case, Pritpal Singh son of Jit Singh resident of Burar, Police Station, Ghagga, alongwith Harpal Singh son of Jaswant Singh resident of village Dugalpur, police station, Patran came to Jai Pal Singh D.S.P. Of Vigilance Bureau, Flying Squad-11, Patiala and made statement. He has stated that he is labourer. They are four brothers and two sisters. His elder brother Bhan Singh was about two years back went to Patran for labour but has not returned back. They have thoroughly searched for him. His second brother Kirpal Singh in the month of March on account of quarrel with three persons was murdered. His post mortem was got conducted by police station, Ghagga from Rajindra Hospital, Patiala. Dr. Deepak Kumar Walia of Rajindra Hospital, Patiala, has conducted the post mortem examination. A case was registered against the accused. The complainant consulted his lawyer and he advised him to get copy of the post mortem for filing suit for damages. On 24.6.99 he alongwith Harpal Singh went to Rajindra Hospital, Patiala, and met Dr. Deepak Walia and requested him to supply the copy of the post mortem. The doctor replied that the copy of the post mortem is not supplied in the manner as demanded by the complainant. Dr. Deepak Walia further disclosed him that he has to pay a sum of Rs. 1000/- as bribe. The complainant told Dr. DeepakWalia that he is a poor person and is labourer and he is ready to pay the fee prescribed by the Govt. Dr. Deepak Walia told the complainant that he has to pay minimum of Rs. Dr. Deepak Walia further disclosed him that he has to pay a sum of Rs. 1000/- as bribe. The complainant told Dr. DeepakWalia that he is a poor person and is labourer and he is ready to pay the fee prescribed by the Govt. Dr. Deepak Walia told the complainant that he has to pay minimum of Rs. 600/- for getting the copy. The complainant told the doctor that he could not pay the said amount and he shall pay the amount on the next day. Dr. Deepak Walia also told him that they can get the copy on the next date on payment of Rs. 600/- and he shall be ready with the copy. The complainant and Harpal Singh were returning to their house and Harpal Singh told that they should not pay the bribe money and they should approach the vigilance department to give a lesson to such a doctor. They planned to approach the vigilance department on the next day. On the next day, the complainant alongwith Harpal Singh came to the office of the vigilance department and narrated the whole facts to them. The complainant produced Rs. 600/- before the D.S.P Jai Pal Singh. It was disclosed that Dr. Deepak Walia is known for accepting bribe and he has image of disproportionate property to his known source. After recording the statement a case was registered against the accused. D.S.P Jai Pal Singh applied phenolphthalein power on the currency notes of Rs. 600/-. One of the note was of the denomination of Rs. 500/- bearing No. 2HG-231324 and another note of the denomination of Rs. 100/- bearing No. 8LG0446120. The currency notes were returned to the complainant after applying phenolphthalein powder after making memo. Thereafter D.S.P. Showed the demonstration by arranging a glass of water and'put sodium carbonate in the said solution, the colour of the solution did not change. Thereafter with the help of a paper phenolphthalein powder was put in the said solution and the colour of the solution turned to pink and memo in this regard was prepared. The said paper and the solution was destroyed. Harpal Singh was appointed as a shadow witness and he was directed to accompany the complainant and was told that he will hear the conversation between Dr. The said paper and the solution was destroyed. Harpal Singh was appointed as a shadow witness and he was directed to accompany the complainant and was told that he will hear the conversation between Dr. Deepak Walia and the complainant and he will signal the police party by putting his right hand on the head when Dr. Deepak Walia accepted the bribe money from Pritpal Singh independent Witness Kundan Singh Superintendent of the office of Superintending Engineer, Mechanical branch, Patiala was summoned and he was introduced to the complainant and shadow witness and narrated the facts. Thereafter the complainant and the shadow witness and independent witness along with the raiding party reached near Rajindra Hospital, Patiala and the car was parked inside. The complainant and the shadow witness went to Dr. Deepak Walia in his office and D.S.P., independent witness and the raiding party scattered here and there and started waiting for the signal. The complainant and shadow witness went to Dr. Deepak Walia and the complainant paid the bribe money on demand to Dr. Deepak Walia and the shadow witness Harpal Singh made the agreed signal and D.S.P. Jai Pal Singh alongwith the raiding party reached there and the accused was told not to leave his seat. PIC Akhil Parshad was told to bring some senior doctors of Rajindra Hospital, Patiala and Dr. Tarsem Lal Parmar Medical Superintendent Rajindra Hospital, Patiala, accompanied the Head constable. Dr. Om Parkash aggarwal, Asstt. Professor, Rajindra Hospital, Patiala, also came there and they were introduced with the complainant and the shadow witness and narrated the other facts. A glass of water was arranged and sodium carbonate was put in the said solution but the colour did not change. Thereafter accused Dr. Deepak Walia was told to put the fingers of both the hands in the solution and the colour of the water became pink. The said solution was put in a nip and was sealed and made into a parcel. Thereafter at the instance of the D.S.P. Jai Pal Singh, Dr. Tarsem Lal Parmar and Dr. O.P Aggarwal, Dr. Deepak Walia accused first told to put off his shirt. The currency notes of Rs. 500/- and Rs. 100/- were recovered. The accused in order to save himself torn out those notes and those notes were taken into possession and their numbers were tallied with the previous memo made by Kundan Singh Superintendent, Dr. O.P Aggarwal, Dr. Deepak Walia accused first told to put off his shirt. The currency notes of Rs. 500/- and Rs. 100/- were recovered. The accused in order to save himself torn out those notes and those notes were taken into possession and their numbers were tallied with the previous memo made by Kundan Singh Superintendent, Dr. Tarsem Lal Parmar, Dr. O.P. Aggarwal and the numbers of the notes tailed with the memo already prepared. Those notes were taken into possession by a separate memo. From the supplementary search of the accused, one black purse having Rs. 845/-, one identity card, one driving licence and Rs. 3100 from the inner pocket of the pant, one watch, 13 keys, one locket copper and one ball pen were recovered and which were taken into possession vide separate memo. Pocket of the shirt was also washed in the solution of sodium carbonate and the colour turned to pink which was also taken into possession vide separate memo. Carbon copy of the post mortem of Kirpal Singh in respect of F.I.R. No. 22 dated 10.3.99 of police station, Ghagga alongwith other documents were also taken into possession vide separate memo. Rough site plan was prepared. Statements of the witnesses were recorded. Sanction for prosecution of the accused was obtained and after completion of the investigation, the challan was presented in the Court." 3. On presentation of the challan, copies of the documents as provided under section 208 Cr.P.C. were supplied to the accused free of cost. 4. The accused was charge-sheeted for the commission of offence under Section 7 of the Act to which he pleaded not guilty and claimed trial. 5. In order to substantiate its case against the accused, the prosecution examined the following witnesses:- PW1-Himmat Singh, Senior Assistant, proved the service book, Ex.PA, of the accused. PW2-ASI Karam Singh has proved the fact of registration of FIR No. 22 dated 10.03.1999, under Section 304/34 IPC at Police Station Ghagga. He further deposed that on 24.06.1999, he approached the accused to obtain his opinion which he collected on 26.06.1999. PW3-Dr. Harish Tuli proved the duty roster in respect of the duties of the accused as Ex.PD. PW4-MHC Gurbej Singh and PW-5 Constable Sarabjit Singh proved their affidavits Ex.PE and Ex.PF, respectively. PW6-Sukhdev Singh, Senior Assistant, proved the sanction, Ex.PG against the accused. PW7-Kundan Singh, Superintendent, has supported the prosecution witness. PW3-Dr. Harish Tuli proved the duty roster in respect of the duties of the accused as Ex.PD. PW4-MHC Gurbej Singh and PW-5 Constable Sarabjit Singh proved their affidavits Ex.PE and Ex.PF, respectively. PW6-Sukhdev Singh, Senior Assistant, proved the sanction, Ex.PG against the accused. PW7-Kundan Singh, Superintendent, has supported the prosecution witness. He deposed that on 25.06.1999, he was introduced by D.S.P. To Harpal Singh and Pritpal Singh, complainant and facts of the case were narrated to him. PW8-Pritpai Singh, complainant also supported the prosecution version. PW9-Harpal Singh, the shadow witness, though supported the prosecution case in his examination-in-chief but he did not support the case during his cross-examination. PW10-Narinder Pal Kaushal, DSP, proved recording of statements of Sukhdev Singh, Senior Assistant. PW11-Dr. Tarsem Lal Parmar, also supported the case of the prosecution. PW12-Ranjit Singh Dhillon, SP Crime, deposed with regard to the investigation carried out by him. PW13-Jai Pal Singh, DSP, is the main investigating officer of the case. He also supported the case of the prosecution. The accused was examined under Section 313 Cr.P.C. in which all the incriminating circumstances appearing in the prosecution case were put to him which he denied and pleaded false implication. He pleaded that the brother of the complainant, Pritpal Singh was murdered and the post-mortem examination was conducted by him along with another doctor. The complainant wanted to get the postmortem report prepared according to his wishes, which was not accepted by the accused. Thus, the complainant had nursed grudge against him. No fee was deposited by the complainant in this regard. In defence, the accused examined Dr. Bhupinder Pal Singh, who conducted medico-legal examination of the accused proved copy of the MLR as Ex.DX. 6. After hearing learned counsel for both the parties and considering material/evidence on record, the learned trial Court has convicted and sentenced the appellant for the offence and the term as indicated at the outset of this judgment. 7. Aggrieved against the judgment of conviction and order of sentence, the present appeal is directed by the appellant which was admitted by this Court on 01.04.2004. 8. Learned counsel for the appellant has argued that in the instant case, the demand and acceptance is not proved on record. PW-9, Harpal Singh, the shadow' witness, has not supported the case of the prosecution. 8. Learned counsel for the appellant has argued that in the instant case, the demand and acceptance is not proved on record. PW-9, Harpal Singh, the shadow' witness, has not supported the case of the prosecution. There is no other witness except the complainant to the alleged demand and acceptance of the illegal gratification. It is further submitted that no requisite fee had been deposited by the complainant for getting the postmortem report of his brother Kirpal Singh. He did not approach any Court of law for getting the post-mortem report. He refers to the statement of the accused recorded under Section 313 Cr.P.C., wherein, it has been specifically stated that the complainant nursed a grudge against the accused as the latter did not agree to prepare the post-mortem report of the deceased according to the wishes of the complainant. It is further contended that the raiding party did not offer themselves for search before conducting search of the accused, which fact renders the prosecution story doubtful. He cites Sanjiv Kumar v. State of Haryana, 2010(4) R.C.R. (Criminal) 891; Malkit Singh v. State of Punjab, 2010(4) R.C.R. (Criminal) 958; State of Punjab v. Kushal Singh Pathania, 2005(4) R.C.R. (Criminal) 310; and Harbans Singh v. State of Punjab, 2010(1) R.C.R. (Criminal) 892. 9. On the other hand, learned counsel submits that the prosecution has been able to prove its case against the accused-appellant beyond a shadow of reasonable doubt. The accused was caught red handed. The complainant, under a bona fide belief that the copy post-mortem report is issued by the doctor who prepares it, approached the accused. The accused, in turn, demanded illegal gratification of Rs. 1,000/-. Ultimately, the deal was struck at Rs. 600/-. The complainant approached the Vigilance Department. Trap was laid and the accused was caught red handed. The recovery proceedings were carried out in the presence of senior doctors of the hospital. He cites Dr. Subramanian Swamy v. Dr. Manmohan Singh. 10. I have heard learned counsel for the parties and perused the record with their able assistance. 11. The star argument raised by the learned counsel for the appellant is that the shadow witness, Harpal Singh, PW9, has not supported the case of the prosecution and in such a scenario, the solitary statement of the complainant, cannot be believed. 10. I have heard learned counsel for the parties and perused the record with their able assistance. 11. The star argument raised by the learned counsel for the appellant is that the shadow witness, Harpal Singh, PW9, has not supported the case of the prosecution and in such a scenario, the solitary statement of the complainant, cannot be believed. However, this argument deserved to be ignored as this witness has fully supported the prosecution version with regard to the demand, acceptance and recovery of the tainted money during his examination-in-chief. From the perusal of the record, it is evident that this witness was cross-examined after twenty days from the date of recording his examination in chief. Thus, there is every reason to believe that during the interregnum period, this witness was won over by the accused. However, the other witnesses, namely, the complainant, independent witness, Kundan Singh, Dr. Tarsem Lal Parmar and D.S.P. Jai Pal Singh, withstood the lengthy and exhaustive cross-examination and fully supported the prosecution version. 12. The second argument raised by the learned counsel for the appellant is the absence of motive with the accused to demand illegal gratification. It is not in dispute that the prosecution did not produce on record any document to show that he ever obtained any order from the Court for procuring the copy of the post mortem report in question, nor there is any receipt with regard to deposit of the requisite fee. It has come on record that the complainant is an illiterate person belonging to the poorest strata of the society He, under the bona fide belief, approached the doctor-accused, who prepared the post mortem report for getting a copy thereof. There is nothing on record to show that the accused advised/ in formed the complainant as to the correct procedure for getting the copy. Instead, he himself demanded Rs. 1,000/- and the deal was finally struck at Rs. 600/-. The fact that the carbon copy of the post mortem report in question was recovered from the accused, further fortifies the prosecution version. Thus, there is no force in the submission that there was no motive with the accused to demand illegal gratification. 13. In this case, the testimony of Dr. 600/-. The fact that the carbon copy of the post mortem report in question was recovered from the accused, further fortifies the prosecution version. Thus, there is no force in the submission that there was no motive with the accused to demand illegal gratification. 13. In this case, the testimony of Dr. Tarsem Lal Parmar, PW 11, who is the most trustworthy and independent witness, is of paramount significance, in his deposition, he has stated that when he reached the Dead House, he met both the DSPs who informed him about the matter. They asked him to call Dr. O.P. Aggarwal, Head of the Department of forensic Science. Upon the arrival of Dr. O.P. Aggarwal in the Dead House, they all went inside the Mortuary, where the accused was present. In his presence, there was a struggle between DSP Jai Pal and the accused. This witness advised the accused to cooperate with the raiding party. The hand of the accused were washed in the container containing water sodium carbonate and the solution turned pink. He has also signed the memo Ex.PK, whereby the nip containing the solution was taken into possession. He has further deposed that since the accused was resisting his search, the money was recovered from the pockets of the accused. The accused also tore away the currency notes. 14. The fact that the accused suffered injuries which are reflected in the MLR conducted by DW 1. Dr. Bhupinderpal Singh Gill, during scuffle between the accused/appellant and the raiding party, corroborates the prosecution story to the effect that the appellant resisted and did not cooperate with the raiding party. 15. Thus, this witness has completely corroborated the prosecution version as far as the recovery of the tainted money from the possession of the accused is concerned and by no stretch of imagination, he can be said to be an interested witness. 16. As regards the contention that the raiding party did not offer themselves for search before conducting search of the accused is concerned, this circumstance alone is not enough to brush aside the cogent and trustworthy testimonies of the complainant, PW-8. Pritpal Singh, and Dr. Tarsem Lal Parmar, PW-11, an independent witness. 17. The case law cited by learned counsel for the appellant is distinguishable on facts. 18. Pritpal Singh, and Dr. Tarsem Lal Parmar, PW-11, an independent witness. 17. The case law cited by learned counsel for the appellant is distinguishable on facts. 18. In Billa Nagul Shareif v. State of A.P., 2010 AIR (SC) 3549, their Lordships of the Supreme Court have held as under :- "Mr. Ranga Ramanujam, then submits that according to the prosecution the composite licence was ready on 6.1.1997 and had the appellant demanded bribe for giving the same to the de facto-complainant, he ought to have made a complaint to the District Supply Officer. His failure to do the same and approaching the Anti Corruption Bureau, in his submission. is absolutely unnatural. This submission has only been noted to be rejected. The contention that grievance can remedied by the superior officer in the hierarchy of the system of the department concerned, if accepted, perhaps there shall be no case in which the demand f or bribe can be made. The feeling of a common man that when the work is enshrined to different persons bribe is demanded by one of them, when all are invariably in collusion, cannot be lost sight of If Senior Officers ensure that the works of the citizens are done without payment of bribe, Junior Officers and employee may abandon the demand and this country would not have prominently figured as one of the most corrupt nations of the World, has it is widely accepted that the corruption flows from the top. Here, de facto-complainant, was entitled to have the composite licence but he was not willing to pay the bribe demanded, accordingly he had approached the Anti Corruption Bureau and we do not find anything unnatural in the conduct of the de facto-complainant." In Dr. Subramanian Swamy's case (supra), it has been observed thus :- "Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it." 19. Section 20 of the Prevention of Corruption Act, 1988 which reads as under :- 20. Presumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself or for any other person, or any gratification (other than legal remuneration) any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under Section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in subsections (1) (2), the court may decline to draw the presumption referred to in either of the said subsections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn." 20. In the light of the foregoing discussion, this Court comes to the irresistible conclusion that the prosecution has been successful in proving its case beyond a shadow of reasonable doubt. The prayer of the learned counsel for the appellant for reducing the sentence is / turned down. The society has to fight against corruption and someone has to stand against corrupt officials/officers. No strong mitigating circumstance has been brought to the notice of this Court except that he has been dismissed from service on account of this corruption case and that he is aged about 65 years. None of the contentions finds favour with this Court. 21. Accordingly, the present appeal fails and is, hereby, dismissed. The impugned judgment of conviction and order of Accordingly, the present appeal fails and is, hereby, sentence are upheld. The appellant is stated to be on bail. His bail bonds shall stand forfeited. He be taken into custody forthwith to suffer the remaining part of the sentence.