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2016 DIGILAW 2425 (HP)

Pavinder Singh v. State of Himachal Pradesh

2016-11-17

SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. Assailing the judgment dated 23.8.2012, passed by the learned Special Judge, Chamba Division, Chamba, H.P. in Corruption Case No. 3 of 2011, titled as State of Himachal Pradesh vs. Sudhir Singh & others, whereby present appellant Pavinder Singh (Accused No. 3) stands convicted for having committed offences punishable under the provisions of Section 420 Indian Penal Code read with Section 13(d)(ii) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of two years and pay fine of Rs.10,000/- and in default thereof, to further undergo simple imprisonment for two months for offence punishable under Section 420 IPC and rigorous imprisonment for a period of two years and pay fine of Rs.10,000/- and in default thereof to further undergo simple imprisonment for two months for offence punishable under Section 13(2) of the Act, he has filed the present appeal under the provisions of Section 374 of the Code of Criminal Procedure, 1973. 2. Facts leading to the filing of the present appeal are as under: In the year 1995, as a result of a natural calamity (flash floods), land belonging to Chetna Devi (Accused No. 4) and Dhano Devi (since deceased), relative of Pavinder Singh (Accused No.3), got washed away. In consonance with the scheme so framed by the State for allotment of nautor land (grant), Chetna Devi and Dhano Devi applied for grant of two biswas (98 Sq. mts.) of land. Since Pavinder Singh was posted as a Patwari/Nautor Clerk, he manipulated in getting a false report prepared from Kanungo, Sudhir Singh (Accused No. 1) and Halka Patwari, Kamal Singh (Accused No. 2). On the basis of such report and the order scribed by Accused No. 3, two biswas of land came to be allotted in favour of applicants Chetna Devi and Dhano Devi. This was so done on 29.6.1998 (Ext. PW-7/D). Subsequent realization of the land having been allotted in violation of the Rules (Ext. PW-1/A) and Policy Decision (Ext. PW-1/B), led to the passing of order dated 17.5.1999 (Ext.PW-7/A-6), reviewing the sanction of grant. 3. But the matter did not rest here. Since Revenue Officials had connived with the private applicants, F.I.R. No. 4/2010, (Ext.PW-21/A), came to be registered on 26.3.2010 at Police Station SV & ACB, Chamba under the provisions of Sections 420/467/468/471/120B IPC and 13/132 of the Act. 3. But the matter did not rest here. Since Revenue Officials had connived with the private applicants, F.I.R. No. 4/2010, (Ext.PW-21/A), came to be registered on 26.3.2010 at Police Station SV & ACB, Chamba under the provisions of Sections 420/467/468/471/120B IPC and 13/132 of the Act. Investigation, prima facie, revealed complicity of all the accused in the alleged crime, which led to the filing of challan in the Court for trial. 4. All accused were charged for having committed offences punishable under the provisions of Sections 420, 467, 468, 471 and 120B of the Indian Penal Code. Additionally the Revenue Officials, including the present appellant, were also charged for having committed an offence punishable under the provisions of Section 13(2) of the Act, to which, they all did not plead guilty and claimed trial. 5. In order to establish its case, prosecution examined as many as 29 witnesses and statements of the accused under Section 313 of the Code of Criminal Procedure were also recorded, in which they took plea of innocence and false implication. No evidence in defence was led by the accused. 6. In terms of the impugned judgment dated 23.8.2012, except for accused Pavinder Singh, all the accused stand acquitted on all counts. The said accused stands convicted for having committed an offence punishable only under the provisions of Section 420 IPC read with Section 13(d)(ii) of the Act and sentenced as aforesaid. Hence the present appeal. 7. Having heard learned counsel for the parties as also perused the record, I am of the considered view that the reasoning adopted by the trial Court is perverse and is not based on correct and complete appreciation of testimonies of the witnesses. Judgment in question insofar as it relates to the conviction of the appellant, is not based on correct and complete appreciation of evidence and the material placed on record, hence causing serious prejudice to the appellant, resulting into miscarriage of justice. 8. Judgment in question insofar as it relates to the conviction of the appellant, is not based on correct and complete appreciation of evidence and the material placed on record, hence causing serious prejudice to the appellant, resulting into miscarriage of justice. 8. In Shivaji Sahabrao Bobade and another Versus State of Maharashtra, (1973) 2 SCC 793 , the apex Court, has held that: “…….Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power unless it be found expressly stated in the Code". …. …. (Emphasis supplied) 9. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603 , has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to the accused. 10. Also it is settled position of law that graver the punishment the more stringent the proof and the obligation upon the prosecution to prove the same and establish the charged offences. 11. It is a matter of record that no appeal against the judgment of acquittal of co-accused Sudhir Singh, Kamal Singh and Chetna Devi stands filed by the State. Also State has not preferred any appeal assailing the judgment of acquittal of the present appellant, in relation to the charges he stands acquitted for. Hence, this Court is called upon to examine the correctness of findings returned by the Court below. 12. It is a settled principle of law that when allegedly several persons commit an offence in furtherance of common intention and all except one are acquitted, it is open to the appellate court to find out, on reappraisal of evidence whether some of the accused persons stood wrongly acquitted, although it would not interfere with such acquittal in the absence of any appeal by the State Government. The effect of such finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The effect of such finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality. (See: Brathi alias Sukhdev Singh v. State of Punjab, (1991) 1 SCC 519 ). 13. It is a matter of record that save and except for one document i.e. letter of recommendation (Ext. PW7/A- 12), and that too so made by the concerned Tehsildar, the present appellant has himself neither prepared any report nor authored any document. Bare perusal of this recommendation only reveals the present appellant to a scribe and not the recommending authority. It is not the case of prosecution that he had colluded with the Tehsildar in making such recommendation. Significantly such recommendation came to be made by the competent authority on the basis of field reports so prepared by Sudhir Singh (Accused No. 1) and Kamal Singh (Accused No. 2), who already stood acquitted. This report has not been proved to have been prepared falsely. 14. To establish involvement of the accused in the alleged crime, prosecution case primarily hinges on the ocular version with which the Court shall deal herein subsequently. 15. Record reveals that both Dhano Devi and Chetna Devi made applications (Ext. PW 7/A and Ext. PW 7/A-2) for grant of nautor land. These applications were processed in the office, not by accused Pavinder Singh, but other authorized/competent revenue officials. After processing, they were forwarded to the concerned field staff, who prepared their reports (Ext. PW 7/A-8 and Ext. PW 7/A-9). Even at this point in time, the present appellant did not deal with these applications. The field staff is not directly reporting to him. 16. Prosecution wants the court to believe, through the testimony of Smt. Rekha Devi (PW-13), Patwari posted in the Tehsil Office at Chamba, that it was the appellant who was dealing with the Nautor files. She does state that at the time of preparation of report on the application (Ext. PW7/A), appellant was in the office and she did make it so on his behalf. But then such version of hers is totally uninspiring in confidence, for in the cross examination part of her testimony, she categorically admits such fact not to be there in her pervious statement, so recorded by the police. PW7/A), appellant was in the office and she did make it so on his behalf. But then such version of hers is totally uninspiring in confidence, for in the cross examination part of her testimony, she categorically admits such fact not to be there in her pervious statement, so recorded by the police. In fact, she goes on to add that “It is correct that I am deposing for the first time that I had made the noting on the applications at the asking of accused Pavinder”. If only one were to believe her, she would be no less than an accomplice in the crime. Significantly with the preparation of her report, the matter did not come to an end. Also she was not the final authority in the preparation of the document, for recommendation of the case for grant. One must record that the recommending authority is none else but the Tehsildar, a Gazetted Officer, who undoubtedly remained uninfluenced from the fact that the applicants were close relatives of the appellant. Crucially none of the prosecution witnesses have testified to the contrary. 17. At this juncture, it be only observed that the sole ground for cancellation of grant was infraction of Rule (Ext. PW-1/A), which, to some extent, prohibits grant of land, outside the mohal of normal residence of the applicants. Pertinently, the authority sanctioning grant was no less than a person of the level of the Deputy Commissioner, Chamba who presumably had applied his mind before allotting the land outside the mohal. Otherwise there is no bar in the authority exercising discretion in the allotment of land outside the mohal. 18. It was incumbent upon the prosecution to have established that the appellant got recommended allotment of nautor land of two biswas in favour of Dhano Devi and Chetna Devi in connivance with other accused, in violation of the Rules and instructions in this regard, so issued by the State Government and thereby dishonestly induced the State Government and also committed criminal misconduct by misusing his official position in the allotment of the said nautor land, by causing wrongful loss to the State and wrongful gain to himself. 19. Now if one were to peruse the testimonies of 26 prosecution witnesses, one finds that emphasis was more to prove the execution of the documents referred to herein earlier. 19. Now if one were to peruse the testimonies of 26 prosecution witnesses, one finds that emphasis was more to prove the execution of the documents referred to herein earlier. But save and except, the testimony of Rekha Devi (PW-13), none has come forward to depose about the alleged involvement of the present appellant, in the preparation of the field reports or for that matter sanction of grant. Perusal of order, reviewing the sanction of grant (Ext PW 7/A-6), also does not indicate involvement of the present appellant in the alleged crime. Significantly it is not the case of prosecution that (i) the applicants were otherwise not entitled to the grant in accordance with the Rules and (ii) the land of the applicants had not washed away in a natural calamity. 20. Hence, from the material placed on record, prosecution has failed to establish that the appellant is guilty of having committed the offences, he stands charged for. The circumstances cannot be said to have been proven by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. 21. Findings returned by the trial Court, convicting the appellant, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the appellant. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as the appellant stands wrongly convicted. 22. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence, dated 23.8.2012, passed by the learned Special Judge, Chamba Division, Chamba, H.P. in Corruption Case No. 3 of 2011, titled as State of Himachal Pradesh vs. Sudhir Singh & others, is set aside and the appellant is acquitted of the charged offences. Fine amount, if deposited, be refunded to the accused. Bail bonds furnished by the accused are discharged. Appeal stands disposed of, so also pending applications, if any.