Allowed

Gulab Singh v. State of Hy.

Punjab & Haryana HC2 Apr 2013CRA-S/1583/2003

Case brief

AI extract

What is this about?

In a criminal appeal challenging a conviction under the Prevention of Corruption Act, the High Court of Punjab and Haryana acquitted the appellant. The court held that the prosecution failed to prove the demand and acceptance of bribes beyond reasonable doubt due to the absence of independent corroborative evidence, rendering the conviction unsustainable.

What did the court decide?

The impugned judgment of conviction and order of sentence set aside; appellant acquitted of the charges; bail bonds discharged.

Gulab Singh Vs State of Hy. — Corruption | Punjab & Haryana HC (2013)

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Crl. Appeal No.1583-SB of 2003

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Crl. Appeal No.1583-SB of 2003 Date of decision: 02.04.2013

Gulab Singh

....Appellant

Versus

State of Haryana

....Respondent

CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH

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1. Whether Reporters of the local papers may be allowed to see the judgment ? Yes

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1. To be referred to the Reporters or not ? Yes

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1. Whether the judgment should be reported in the Digest? Yes

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Present: - Mr. J.S. Mehndiratta, Advocate, for the appellant. Mr. Sandeep S. Mann, Sr. DAG, Haryana.

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PARAMJEET SINGH, J.

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The challenge in the present appeal is to the judgment of conviction dated 23.08.2003 and order of sentence dated 25.8.2003 passed by learned Special Judge, Kurukshetra, whereby the appellant has been convicted and sentenced under Section 7 of the Prevention of Corruption Act (in short 'the Act') to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/-, in default of payment of fine, to undergo further rigorous imprisonment for a period of three months; under Section 13(1)(d) of the Act to undergo rigorous imprisonment for three years and to pay a fine of Rs. 3,000/-, in default of payment of fine to further undergo rigorous imprisonment for six

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Crl. Appeal No.1583-SB of 2003

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months, in a case arising out of FIR No.19 dated 15.11.1999 registered under Section 7 of the Act at Police Station State Vigilance Bureau, Ambala.

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Brief facts of the present case are that Naurata Ram had his land in village Dadlu (Kurukshetra). He was having no issue. His land was being cultivated by his nephews Bachna Ram, complainant, and Rattan Lal. Naurata Ram submitted an affidavit to the appellant, who was posted as Patwari of Halqua Rawa, for change of khasra girdawari entries in favour of his nephews. As Naurata Ram was an illiterate, he had asked his eldest nephew Bachna Ram to get in touch with the concerned Patwari for copy of girdawaris. Accordingly, he contacted Patwari in his office. He was accompanied by one Bhim Sain, a resident of his village. He asked for copy of khasra girdawari from the Patwari who refused to give him the copy of the said khasra girdawari and asked for payment of Rs. 1,000/- as bribe. He asked him to take the copy on 15.11.1999 after payment of the said money. As Bachna Ram was not prepared to pay bribe amount, he approached the Deputy Superintendent of Police, State Vigilance Bureau, Ambala, and made a complaint Ex.PK for taking action against the accused. On the request of DSP Pala Ram, Additional Deputy Commissioner spared O.P. Khurana, Accounts Officer of the Haryana Roadways, Kurukshetra, to join the raiding party. Complainant Bachna Ram produced one currency note of Rs. 500/- and five currency notes of Rs. 100/- each. These currency notes were taken into possession by the police vide seizure memo Ex.PA. Phenolphthalein powder was applied to the currency notes by the Investigating Officer. Earlier the currency notes were initialed by O.P.

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Crl. Appeal No.1583-SB of 2003

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Khurana PW1. After conducting personal search of the complainant Bachna Ram, the currency notes were handed over to the complainant Bachna Ram PW 8 vide memo Ex.PB with the direction to hand over the same to the accused on demand. Satish Kumar Peon was fixed as a shadow witness with the direction to hear conversation between the complainant Bachna Ram and accused-appellant. On passing amount of bribe from the complainant to the accused, he was to flash a signal by placing his right hand on his head. DSP Pala Ram, Investigating Officer, accompanied by complainant Bachna Ram, Satish Kumar, shadow witness, O.P. Khurana, PWs and other officials proceeded for raid to Shahabad. Bachna Ram and Satish Kumar were alighted at Ladwa Road, Shahabad with the direction to proceed to the office of the accused. DSP Pala Ram and other members of the raiding party proceeded in the vehicle towards Patwarkhana via other route. The raiding party stood at some distance from Patwarkhana watching for receipt of appointed signal from Satish Kumar PW. On receiving the signal, as settled, DSP Pala Ram, Sh. O.P. Khurana and other members of the raiding party then reached Patwarkhana and accused was nabbed. From the pocket of the shirt worn by the accused-appellant, a sum of Rs. 1,000/- in the form of six currency notes i.e. one currency note of Rs. 500/- and five currency notes of Rs.100/- each was found. Numbers of the currency notes were tallied. Hands of the accused were got washed in a solution of sodium carbonate and water in a jug which was earlier prepared in a bucket. The colour of the solution in the jug turned pink. The same was poured in a separate bottle and was sealed with the seal bearing impression “PR”. Thereafter another solution was taken in the jug. The currency notes so

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Crl. Appeal No.1583-SB of 2003

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recovered were also washed in the solution. Colour of the solution also turned pink. The said solution was transferred to another bottle which was also separately sealed with the seal 'PR'. The currency notes were dried up and were put up in an envelope which was also likewise sealed with the seal 'PR'. Thereafter arranging another shirt for the accused, the shirt which the accused was already wearing was taken off. The pocket of the shirt was washed in another sodium carbonate and water solution put in a jug. The solution had also turned pink. The said solution was poured in a separate bottle which was also sealed with the seal bearing impression 'PR'. The shirt was converted into a parcel which was likewise sealed with the seal 'PR'. Sealed bottles containing hand wash, pocket wash and the shirt were taken into possession vide recovery memo Ex.PC. Envelope containing currency notes and currency notes wash were taken into possession vide separate memo Ex.PD. Thereafter, the hands of the complaint were also got washed in sodium carbonate and water in a jug. Colour of solution had turned pink. Solution was put in a separate bottle which was sealed with the seal bearing impression 'PR'. This was taken into possession vide recovery memo Ex.PE. All the witnesses had signed these memos. Further investigations were conducted by DSP Pala Ram, Investigating Officer. Spot was inspected. Affidavit Ex.DB of Naurata Ram, copy Ex.PM of khasra girdawari and register Ex.PN relating to the entries of fees for preparation of the copy of the revenue record had been recovered from the table of the accused. These were taken into possession vide recovery memo Ex.PF. Thereafter the Investigating Officer interrogated the accused and effected his arrest. The Investigating Officer had also recorded the

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statements of the witnesses. Seal after use was given to O.P. Khurana and sealed parcels were handed over to SI Prem Sagar for depositing the same with the Moharrir Head Constable of Police Station, Ambala. The accused was lodged in the lock-up. The sealed parcels were then sent to the Forensic Science Laboratory, Haryana, Madhuban, Karnal, on 17.11.1999 through Inspector Swaran Singh PW5. After receipt of the report Ex.PO from FSL and after completion of other necessary investigations, such as preparation of the site plan from Draftsman and obtaining of sanction for prosecution of the accused, final report under Section 173 Cr.P.C. was prepared against the accused. The challan was presented in the Special Court, Kurukshetra.

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Copies of the report under Section 173 Cr.P.C. were supplied to the accused, as envisaged under Section 207 Cr.P.C.

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After providing a hearing to the prosecution as also the accused, charge under Sections 7 and 13 of the Act was framed against the accused vide order dated 10.8.2000. The accused pleaded not guilty and claimed trial.

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To support the charge against the accused, the prosecution examined O.P. Khurana PW1, Bachna Ram complainant as PW8, Satish Kumar Peon shadow witness as PW7, DSP Pala Ram, Investigating Officer as PW9, Kaushlya Rani, Clerk as PW2 to prove sanction, Ramesh Kumar Goel, Draftsman as PW3 to show the spot, Prem Sagar, SI as PW4 to prove the various articles, currency notes, handwash, bottles and specimen seals, Swaran Singh Inspector as PW5 and Sultan Singh ASI as PW6 in addition to production of documentary evidence.

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Statement of the accused was recorded under Section 313

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Crl. Appeal No.1583-SB of 2003

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Cr.P.C. The accused denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed innocence and stated that he had been falsely implicated in this case. In defence, accused-appellant examined Sultan Singh, a fellow agriculturist, as DW1.

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The trial Court after conclusion of trial convicted and sentenced the appellant as aforesaid. Hence this appeal.

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I have heard the learned counsel for the parties and perused

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the record.

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Learned counsel for the appellant vehemently argued that complaint is typed one and it is not known when and where the complaint was typed. Learned counsel for the appellant further argued that site plan Ex. PJ shows that shadow witness did not have the opportunity to see handing over of bribe money and over-hearing the accused and the complainant. He further submitted that shadow witness is a peon of the Vigilance Department, working under DSP Pala Ram, whereas Bhim Sain, an official witness, who was taken along with, was not shown as shadow witness, therefore, the story of the prosecution is doubtful. Learned counsel for the appellant further contended that there is no independent corroboration of evidence to prove demand and acceptance of the tainted money. The learned counsel for the appellant relied upon the judgment of this Court in Gurcharan Singh vs. State of Haryana, 1994 Crl. L.J. 1710 to contend that evidence of the complainant or trap witnesses cannot be relied upon in the absence of independent corroboration as the shadow witness was not proved to be an independent witness. No personal search was offered to the accused

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Crl. Appeal No.1583-SB of 2003

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by the investigating officer before arrest and effecting recovery. Other independent persons were available at the spot, but not joined as witness.

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The above contention has been vehemently opposed by the learned State counsel by contending that at the relevant time, accusedappellant was posted as Patwari of Halqua. He demanded a sum of Rs. 1,000/- as illegal gratification from the complainant for issuing copy of khasra girdawari. The accused was apprehended at the spot by the Vigilance Bureau and recovery of tainted money as illegal gratification was effected from the appellant. The prosecution has fully proved the case.

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I have considered the rival contentions of the learned counsel for the parties and perused the record.

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It is clear from the perusal of record that work for which the alleged demand of bribe was made had already been done. It means work was already done, therefore, there was no reason to demand and accept the bribe money after the work had been done. Patwari was not competent to correct khasra girdawri. It is always by way of approacthing the AC 2^nd grade for correction of khasra girdawri, who is an officer not belong the rank of Naib Tehsildar. Independent witnesses were available when the raid was conducted, but not joined. This is proved from the statement of DW 1 Sultan Singh, which stands unrebutted. The investigating officer, DSP did not bother to join any of them as independent witness to the incident. Satish Kumar, Peon, PW5 is an interested witness as he is working in the office of DSP. The independent Government official joined in the raid i.e. Bhim Sain was

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not appointed as shadow witness, so there is no independent corroboration of demand and acceptance of bribe. To prove the allegation of demand and acceptance of bribe by an accused person the evidence of complainant or trap witness cannot be safely acted upon in absence of some independent corroborative evidence. In such a situation, bribe given is normally treated as not better than an accomplish and so his evidence needs corroboration from independent source. The same value is attached to the evidence of shadow witness especially when he is not proved to be an independent witness. Independent corroboration to the evidence of such witnesses is generally required by the Court, if not as a rule of law, then at least as a rule of caution and prudence. In the present case, prosecution has failed to lead independent corroborative evidence with regard to demand and acceptance.

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In the light of above, I am of the view that it was incumbent upon the prosecution to prove that the appellant had demanded the bribe from complainant and thereafter accepted the same as a reward for doing the needful i.e. effecting correction in khasra girdawri. The prosecution has failed to prove that appellant was competent to effect correction in khasra girdawri. Consequently, it does not lie in the mouth of prosecution to allege that appellant would demand and accept money as bribe money. Mere recovery of tainted money cannot be held that it was in lieu of bribe money for doing any work.

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As regards presumption under Section 20 of the Act, is concerned, it would be appropriate to discuss how it applies under criminal law. In criminal law, there is a presumption of innocence in favour of the accused. The prosecution must establish beyond a

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reasonable doubt that accused has committed the offence for which he has been charged. As a general principle, the burden of proving actus reus and mens rea lies on the prosecution. Section 20 of the Act refers to the rebuttable presumption. Rebuttable presumption in criminal law is somewhat controversial, in that it does effectively reverse the presumption of innocence. The effect of rebuttable presumption is to put the legal burden of disproof on the accused. In rebuttable presumption also the primary facts must be proved by the prosecution, thereafter the specific presumption could be drawn from them. In the present case, the shadow witness has not supported the factum of demand by the appellant nor the statement of complainant has independent corroboration. Even the PW7 official witness does not support the prosecution story. So the primary facts have not been proved with regard to demand and acceptance, so mere recovery of signed tainted currency notes cannot lead to raising of presumption under Section 20 of the Act. The findings of the Hon'ble Supreme Court in the case of State of Kerala vs. C.P. Rao, 2011(3) RCR (Crl.) 688 reproduced below are relevant in this regard: -

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“10. In C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, reported in 2009(3) SCC 779 , this Court while dealing with the case under the Prevention of Corruption Act 1988, by referring to its previous decision in the case of Suraj

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Mal v. State (Delhi Admn.), reported in 1979(4) SCC 725 held that mere recovery of tainted money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case

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is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused. In the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe conviction cannot be sustained.”

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Admittedly, the Investigating Officer did not offer personal

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search. This Court in State of Punjab vs. Kushal Singh Pathania, 2004 (4) RCR (Crl.) 498 has held that if a police officer failed to offer himself for search by the accused then search conducted on the accused is absolutely illegal and acquittal is bound to follow. It is the case of the prosecution that DSP had initialled the tainted notes but there were no initials on Ex.P5 and Ex.P6, only traces of ink were there. It creates a doubt in the prosecution story with respect to recovery of tainted money.

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DW1 Sultan Singh appeared in the witness box and deposed that independent persons were available who were not joined as independent witnesses. Besides this, there are contradictions/discrepancies with regard to the time, availability of independent witnesses, an official witness Bhim Sain, who accompanied raiding party has not been examined nor he was shown as shadow witness rather PW5 Satish Kumar, Peon, of the Vigilance Department, who is working under DSP Pala Ram, has been shown as shadow witness. This also creates doubt in the prosecution story. Independent corroboration is a necessity in trap cases.

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In view of the above discussion, prosecution has failed to prove the case against the appellant beyond reasonable doubt. So, this appeal is allowed, the impugned judgment of conviction and order of

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sentence are set aside and the appellant is acquitted of the charge framed.

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Bail bonds stand discharged.

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(Paramjeet Singh) Judge

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April 02, 2013 R.S.

Gulab Singh v. State of Hy.

Case brief

What is this about?

What did the court decide?

Gulab Singh v. State of Hy.

Case brief

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What did the court decide?

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