Dismissed

State of Punjab v. Gurdev Singh

Punjab & Haryana HC2 May 2013CRM-A/368/2012

Case brief

AI extract

What is this about?

This is a criminal miscellaneous application for leave to appeal against the acquittal of the respondent in corruption charges for taking illegal gratification. The court held that the application lacks case as the ratio in Banarasi Dass applies to the facts, thereby dismissing the appeal and implicitly upholding the acquittal.

What did the court decide?

Application for leave to appeal dismissed; delay of 34 days in filing appeal condoned.

State of Punjab Vs Gurdev Singh — Corruption | Punjab & Haryana HC (2013)

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CRM-A-368-MA of 2012

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM-A-368-MA of 2012 Date of Decision: 02.05.2013

State of Punjab

.....Petitioner

Versus

Gurdev Singh

.....Respondent

CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH

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Present: - Mr. Gurinderjit Singh, DAG, Punjab. None for the respondent. *****

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PARAMJEET SINGH, J. (ORAL)

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Crl. Misc. No.29849 of 2012

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For the reasons stated, Crl. Misc. application is allowed. Delay of 34 days in filing the appeal is condoned.

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Crl. Misc. No. A-368-MA of 2012

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The instant application has been filed under Section 378(3) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 24.12.2011 passed by the learned Special Judge, Tarn Taran, whereby respondent has been acquitted of the charge framed against him under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988.

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Brief facts of the case are that complainant Jaimal Singh accompanied by Shangara Singh suffered a statement before DSP Ashok Kumar that he wanted to sell land. For that purpose on 13.12.2007 he approached halqa patwari Gurdev Singh to procure the jamabandi of the land in question. Respondent-patwari replied that earlier also the complainant had taken jamabandis of some numbers without paying any

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CRM-A-368-MA of 2012

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illegal gratification and demanded 30,000/- as illegal gratification for preparing the demanded jamabandi as well as for the earlier jamabandis. Ultimately, deal was settled for 20,000/-. Shangara Singh asked the complainant not to pay the bribe and they approached DSP Vigilance Bureau, Tarn Taran, at bus stand Khem Karan and told about the entire matter. DSP called official witnesses Sarabjit Singh and Arvinder Singh, Pharmacist, from Civil Hospital, Sarhali. They were introduced to complainant Jaimal Singh and Shangara Singh. Complainant Jaimal Singh produced 17 currency notes of the denomination of 1,000/- each and six currency notes of the denomination of 500/- each, total sum of ` 20,000/-. DSP noted down numbers of those currency notes and phenolphthalein powder was applied to the notes. DSP gave necessary instructions to the complainant as well as the shadow witness Shangara Singh regarding handing over the bribe money to the accusedrespondent. In this way, raiding party was constituted, which proceeded towards the office of the accused-respondent. Complainant and the shadow witness were sent to the office of the respondent and remaining officials and witnesses scattered around the office of the accused. After about ten minutes, Shangara Singh, shadow witness made specified signal on which the raiding party entered the shop of cloth, where accused was found sitting. DSP disclosed his identity to the accusedrespondent in the said shop of cloth. Solution of sodium carbonate and water in a tumbler was prepared by DSP. When the fingers of both the hands of the accused Gurdev Singh were dipped in the solution, the colour of the solution changed to light pink. The said solution was transferred to a nip and was sealed with seal AK and it was taken into

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CRM-A-368-MA of 2012

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possession vide seizure memo Ex.PB witnessed by all the witnesses. Thereafter accused-respondent produced 17 currency notes of the denomination of 1000/- each and six currency notes of the denomination of 500/- each to the DSP from the pocket of kurta worn by the accused-respondent. The numbers of the notes were tallied with the noted numbers. The said currency notes were taken into possession vide memo Ex.PC attested by the same witnesses. Fresh solution of water and sodium carbonate was prepared in a tumbler. When the pocket of kurta of the accused-respondent was dipped into the solution, its colour changed to light pink. The solution was transferred into a nip and was sealed with seal AK and was taken into possession vide seizure memo Ex.PD attested by the same witnesses. The accused was arrested and his arrest-cum-intimation memo Ex.PW8/B was prepared. Additional personal search of the accused led to the recovery of one purse containing ` 35,515/-, one driving licence and the same were taken into possession vide memo Ex.PG. Parcel of kurta was made which was sealed with seal AK and was taken into possession vide memo Ex.PD. Thereafter, complainant Jaimal Singh produced copy of jamabandi Ex.PW8/C, for the year 2002-03 of village Maneke, which was taken into possession vide Ex.PE, attested by the same witnesses. Site plan Ex.PW8/D was prepared. The statements of the witnesses were recorded. Thereafter the house of the accused-respondent was searched but no objectionable material was recovered from his house. Memo of house search Ex.PW8/E was prepared. Case property was handed over to HC Hardip Singh for depositing the same with MHC in the office of Vigilance Bureau, Amritsar. Sanction Ex.PJ was obtained to prosecute

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CRM-A-368-MA of 2012

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the accused. On receipt of report Ex.PW8/F from the office of FSL, Punjab, Chandigarh, and on completion of the investigations and all the formalities, challan against the accused-respondent was presented in the Court.

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Copies of necessary documents were supplied to the accusedrespondent free of cost as envisaged under Section 207 Cr.P.C. Accordingly, charge was framed against the accused-respondent under Section 7 read with Section 13(2) of the Act, to which he pleaded not guilty and claimed trial.

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The prosecution, in order to prove its case, examined Complainant Jaimal Singh as PW1, shadow witness Shangara Singh as PW2, Darshan Singh, Bill Clerk as PW3, Sadar Kanungo Anil Kumar as PW4, HC Som Nath as PW5, C. Karanbir Singh as PW6, HC Hardip Singh as PW7 and the Investigating Officer DSP Ashok Kumar as PW8 and thereafter prosecution closed its evidence.

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Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. All the incriminating circumstances were put to the accused. He denied the same and pleaded innocence and false implication.

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The learned Trial Court, after appreciating evidence on record acquitted the accused-respondent of the charge framed against him. Hence, this application for grant of leave to appeal.

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I have heard learned counsel for the petitioner and gone through the impugned judgment also.

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In his statement, complainant Jaimal Singh nowhere has stated that Shangara Singh, shadow witness, at that time was accompanying

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CRM-A-368-MA of 2012

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him. PW1 Jaimal Singh has stated that the copy of jamabandi on the basis of which sale deed was executed on the day of raid had already been supplied by the accused to him.

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PW2 Shangara Singh shadow witness was declared hostile. In his cross-examination, shadow witness stated that police recorded his statement at its own. Personal search of the accused was not conducted in his presence nor memo of personal search Ex.PG was prepared, however, it bears his signatures. He denied that he stated before the police that the shirt of the accused was removed or its pocket was dipped into some solution and its colour turned pink. He also denied the fact that he stated that the pink solution was taken into possession along with parcel of the shirt in dispute. He also denied the fact that he stated before the police that copy of jamabandi for the year 2002-03 was taken into police possession. In this way, PW2 Shangara Singh, shadow witness, has not supported the prosecution story.

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The learned counsel for the petitioner has not been able to point out any infirmity or illegality in the impugned judgment either on facts or on law which would call for interference by this Court.

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The issue where the shadow witness turned hostile and did not support the prosecution case at all, is no longer res integra as the Hon'ble Supreme Court in Banarasi Dass v. State of Haryana, 2010(2) RCR (Crl.) 553 , in identical circumstances, however, believing the recovery to be genuine, wherein the complainant and the shadow witness turned hostile, has held in para 16 and 17, as under:-

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“ 16. In light of the statement of two hostile witnesses PW2 and PW4, the demand and the acceptance of illegal gratification alleged to have been received by the accused for favouring

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CRM-A-368-MA of 2012

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PW2 by recording the khasra girdawaris in the name of her mother cannot be said to have been proved by the prosecution in accordance with law. We make it clear that it is only for the two witnesses having turned hostile and they having denied their statement made under Section 161 of the Indian Penal Code despite confrontation, that the accused may be entitled to acquittal on technical ground. But, in no way we express the opinion that the statement of witnesses including official witnesses PW10 and PW11 are not accepted by the Court. Similarly, we have no reason to disbelieve the recovery of Ex.P-1 to P-4 vide Ex.PD.

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17. In the light of this we are of the considered view that the judgment of this High Court convicting the accused for the offences with which the accused was charged cannot be sustained in law.”

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Taking into consideration the facts of the case in hand and

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following the ratio of judgment of the Hon'ble Supreme Court, rendered in Banarasi Dass's case (supra), the petitioner has no case. As such, this application for leave to appeal is dismissed.

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(Paramjeet Singh) Judge

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May 02, 2013 R.S.

State of Punjab v. Gurdev Singh

Case brief

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State of Punjab v. Gurdev Singh

Case brief

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