Allowed

Dharam Pal v. State of Hy.

Punjab & Haryana HC15 May 2014CRA-S/1838/2003

Case brief

AI extract

What is this about?

High Court of Punjab & Haryana allowed the appeal against conviction under the Prevention of Corruption Act. The Court acquitted the appellant due to fatal flaws in prosecution evidence, noting lack of proof regarding demonstration of demand and acceptance of gratification, discrepancies in witness testimony, and unreliable forensic reports.

What did the court decide?

Judgment and order of the trial court set aside; accused-appellant acquitted with benefit of doubt; fine refunded if paid.

Dharam Pal Vs State of Hy. — Corruption | Punjab & Haryana HC (2014)

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CRA No. S-1838 SB of 2003 -1-

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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CRA No. S-1838 SB of 2003 (O&M) Date of decision : 15.5.2014

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Dharam Pal ................Appellant vs.

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State of Haryana

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.................Respondent

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Coram: Hon'ble Mr. Justice K.C. Puri

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Present: Sh. Baldev Singh, Senior Advocate with Sh. Deepender Singh, Advocate for the appellant.

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Sh.Amit Kaushik, Senior DAG, Haryana.

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K.C. Puri, J.

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Challenge in this appeal is the judgment and order dated 19/22.9.2003 passed by Sh. H.S. Bhangoo, Special Judge (I), Panchkula, vide which the accused-appellant was convicted under Section 7 and 13(i)(d) of the Prevention of Corruption Act (hereinafter to be referred to as 'the Corruption Act'), and sentenced to undergo imprisonment and fine as given below:-

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u/s 7 of Corruption Act One year rigorous imprisonment and fine of Rs.2,000/- and in default of payment of fine to further undergo rigorous imprisonment for four months.

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Chugh Banita 2014.05.27 12:03 I attest to the accuracy and integrity of this document chandigarh

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CRA No. S-1838 SB of 2003 -2-

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u/s 13 (i) (d) Two years rigorous imprisonment of Corruption Act and fine of Rs.3,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months.

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However, both the sentences were ordered to run concurrently.

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The facts of the case, as enumerated from the record of the case are that FIR was registered on the written complaint of Partap Singh to the effect that his wife was suffering from cancer and was admitted in AIIMS Delhi without referring through CMO Jind. She was a Government school teacher. She applied for reimbursement of the bills of the treatment and applied for ex-post facto sanction through SMO Jind to Director Health Services, Panchkula. The said application was received in the office of Panchkula on 7.1.2002. The complainant alleged that on demand of the accused, who was the dealing clerk, he had paid a sum of Rs.200/- on 7.1.2002. Then again in February 2002, when the complainant came to enquire about that case, accused again demanded Rs.200/- which was also paid to him by the complainant. Thereafter the complainant visited the office again in March but on that date the Clerk was on leave. Then he again visited the office of Director Health services on 4.4.2002. Again the clerk demanded Rs.200/- from him. So, Partap Singh filed a written complaint against the accused to SP Panchkula. The complainant was directed to meet ASP Panchkula and accordingly the complainant went to the office of ASP on the same day. SDM Panchkula was also

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CRA No. S-1838 SB of 2003 -3-

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present. The complainant narrated the facts to the said officers. Thereafter, the ASP constituted a raiding party. He also obtained two currency notes from the complainant. These notes were initialed by DSP and SDM and phenolphthalein powder was applied. The notes were handed over to the complainant with the direction to hand over the same to the accused on his demand. It was also explained to him that he would give a signal to the shadow witness Balwinder Singh by passing his hands over his head, after the gratification amount is paid to the accused. The shadow witness was to pass signal to the raiding party by raising his right hand. Thereafter, the raiding party reached near Gymkhana Club, Sector 6, Panchkula and from there the complainant and shadow witness were directed to proceed to the office of Director General Health. The raiding party also took its position. After some time, the signal was received by the shadow witness and he had passed the same to the raiding party. The raiding party reached the spot which was near the Mortuary (near the office of Director General Health). The accused was apprehended and two currency notes of denomination of Rs.100/- were recovered from the front pocket of his shirt. These currency notes were the same which were given to the complainant and were carrying initials of ASP and SP. The said notes were taken into possession. Thereafter hands of accused and pocket of the shirt were washed with solution of sodium carbonate. The said sodium carbonate solution turned pink. The washed were collected in separate bottles and taken into possession. The shirt was also taken into possession by the police. A ruka was

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CRA No. S-1838 SB of 2003 -4-

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sent to the police station alongwith complainant. The accused was arrested.

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After completion of the investigation, challan was presented against the accused.

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Copies of documents were supplied to the accused free of costs, as provided under Section 207 Cr.P.C. Charge under Sections 7 and 13 (i) (d) of the Prevention of Corruption Act was framed against the accused, to which he pleaded not guilty and claimed trial.

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The prosecution, in order to bring home guilt of the accused, examined PW-1 Manohar Lal Constable, PW-2 Om Parkash Constable, PW-3 Vasdev Raheja, PW-4 Nasib Singh HC, PW-5 M.S. Yadav, SDM, PW-6 Partap Singh, PW-7 Constable Balwinder Singh, PW-8 Bharti Arora, ASP, PW-9 Rajiv Deswal SHO, PW-10 Sat Pal Singh ASI and closed the prosecution evidence.

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The accused was examined under Section 313 Cr.P.C. and all the incriminating evidence was put to him to which he denied and pleaded innocence.

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The accused was called upon to lead his defence evidence but he chosen not to lead any defence evidence.

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Learned trial Court after appraisal of the evidence convicted the accused under Section 7 and 13 (i) (d) of the Corruption Act and sentenced him to undergo imprisonment and fine as narrated above.

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Feeling dissatisfied with the abovesaid judgment and order dated 19/22.9.2013 passed by Sh. Sh. H.S. Bhangoo, Special Judge (I), Panchkula, the accused appellant has preferred the present appeal.

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CRA No. S-1838 SB of 2003 -5-

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I have heard counsel for both the sides and have also gone through the record of the case.

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In this case the prosecution in order to prove the demand and acceptance of the illegal gratification has relied upon the testimony of PW-6 Partap Singh complainant and PW-7 Constable Balwinder Singh, shadow witness. Partap Singh has not supported the case of the prosecution and he was declared hostile and was duly cross examined but he has not supported the case of the prosecution in the cross examination also.

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The other witness to prove the demand and acceptance of illegal gratification is PW-7 Constable Balwinder Singh, stated to be shadow witness. This witness has also not stated about the demand of illegal gratification. He has simply stated that complainant met the accused near morgue and handed over the currency notes to him. He has nowhere stated that the said amount was paid on demand. The Hon'ble Apex Court in authority reported as Suraj Mal vs. The State (Delhi Administration) AIR 1979 Supreme Court 1408 has held that mere recovery of money from the accused is not sufficient to prove the ingredients of offence under the Corruption Act. The accused were acquitted in that case.

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Again the Apex Court in authority reported as Subhash Parbat Sonvane vs. State of Gujarat 2003(2) RCR (Criminal) 541, the Hon'ble Apex Court has held that evidence to the effect that complainant gave something which accused put in his pocket is no evidence on demand by the accused and conviction was set aside. In

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CRA No. S-1838 SB of 2003 -6-

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the said ruling, it was held that for convicting a person under Section 13(i) (d) of the Corruption Act there must be evidence on the record that accused obtained for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest. In that authority it was also held that mere acceptance of money without there being any evidence for demand and acceptance is not sufficient for convicting the accused for offence under Section 13 (i)(d)(i) of the Corruption Act.

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The Hon'ble Apex Court in recent authority reported as B. Jayaraj vs. State of A.P. 2014(2) RCR (Criminal) 410, held that in a corruption case, accused acquitted despite the fact that tainted money recovered from his pocket but demand was not proved. In the present case, the demand of illegal gratification was neither stated by the complainant nor shadow witness nor any other witness. So, in these circumstances, the conviction of the accused by the trial Court in respect of offence under Section 7 and 13 (i) (d) of the Corruption Act, cannot be upheld.

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In B. Jayaraj's case (Supra) also the complainant did not support the case of the prosecution and he was declared hostile. In the said authority it has been held that presumption permissible to be drawn under Section 20 of the Corruption Act, can only be in respect of the offence under Section 7 and not the offences under Section 13 (1)(d)(i) (ii) of the Corruption Act. It has been further held in that Chugh Banita 2014.05.27 12:03 I attest to the accuracy and integrity of this document chandigarh

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CRA No. S-1838 SB of 2003 -7-

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authority that in so far as offence under Section 7 of the Corruption Act is concerned, it is settled position of law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe.

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The report of the Forensic Science Laboratory is also not helpful to the case of the prosecution. In report Exhibit PS it has been mentioned that Phenolphthalein powder was not detected in solution of hand wash. Only solution of sodium carbonate was detected in hand wash.

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One another circumstance, which militates against the case of the prosecution which escaped notice of the trial Court is that the material witnesses are discrepant regarding the currency wash. According to PW-5 M.S. Yadav, official witness, no currency note was washed in his presence. He is specific about the said fact. However, the Investigating Officer PW-8 Bharti Arora ASP has stated that there was currency wash also besides pocket wash of the shirt of the accused and hand wash of the accused.

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This Court in Criminal Appeal No. S-2292 SB of 2003 titled as Shiv Narain Sharma vs. State of Haryana, decided on 7.12.2007, observed that where the currency notes are washed it creates dent in the prosecution case as in the normal practice, currency wash is not made. The hand wash is not proved by the report of Forensic Science Laboratory.

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CRA No. S-1838 SB of 2003 -8-

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The offence under the Corruption Act is a serious offence and the whole career of the Government official convicted under the Corruption Act is almost finished. It is settled law that in such circumstances the proof should be in such a manner that it does not admit any fault. The Courts sometimes demand independent corroboration regarding demand and acceptance of illegal gratification. In the present case the shadow witness appointed by the prosecution was none else but Naib Reader of DSP (Anti Extremist Cell), Panchkula, who was posted as Constable at the relevant time. He cannot be said to be an independent witness. Otherwise also, PW7 Constable Balwinder Singh has not supported the case of the prosecution regarding demand of illegal gratification.

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So considering all the circumstances of the case, in my view there is serious dent in the prosecution story. The learned trial Court has not considered the abovesaid aspect of the case.

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Consequently, the appeal is accepted and the judgment and order of the trial court stands set aside. The accused-appellant stands acquitted by giving him benefit of doubt. Fine, if any paid by the appellant, be refunded to him after expiry of period of appeal/revision as provided under law.

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A copy of the judgment be sent to the trial Court for compliance.

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15.5.2014 chugh

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Chugh Banita 2014.05.27 12:03 I attest to the accuracy and integrity of this document chandigarh

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CRA No. S-1838 SB of 2003 -9-

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Dharam Pal v. State of Hy.

Case brief

What is this about?

What did the court decide?

Dharam Pal v. State of Hy.

Case brief

What is this about?

What did the court decide?

What the court decided

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