Karnail Singh v. State Of Punjab

Vinod K. Sharma, J. — This appeal is directed against the conviction and sentence awarded to the appellant in case FIR No. 60 dated 11.6.1992 registered under sections 7, 13(1)(D)(2) of the Prevention of Corruption Act (for short the Act) at Police Station Shahkot.

2. The appellant was tried and sentenced to undergo R.I for one year and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo further R.I for a period of 4 months under sections 7, 13(1)(D))(2) of the Act.

3. Allegations against the appellant are that Bachittar Singh son of Achhar Singh resident of village Faqruwal Police Station Shahkot wanted to contract loan from UCO Bank for agricultural purpose and needed Farad Jamabandi of his land for the said purpose. He approached the appellant Karnail Singh who demanded Rs. 500/- as bribe money and ultimately agreed to supply copy of Farad Jamabandi after receiving Rs. 250/-. Bachittar Singh agreed to pay this amount on 11.6.1992 but since he was not desirous of giving bribe money he approached the Vigilance Department. Statement of the complainant was recorded by Charan Singh inspector who was also handed over two notes of the denomination of Rs. 100/- each and one note of denomination of Rs. 50/-. Charan Singh Inspector applied phenolphthalein powder to these notes and returned back the same to Bachittar Singh with a direction that he should hand over these notes to the appellant on demand and after getting copy of the revenue record.

4. It is also the case of the prosecution that thereafter Charan Singh Inspector demonstrated the effect of phenolphthalein powder on mixture of soda bicarbonate. Arur Singh son of Bhagat Singh had also gone with Bachittar Singh and he was joined as a shadow witness and instructed to follow Bachittar Singh and give signal after the accused demanded and accepted the bribe money from Bachittar Singh. A case under Sections 7, 13(1)D)(2) of the Act was registered against the accused-appellant and a raiding party was organised. Mr. P.K Sood, Senior Fisheries Officer was joined in the said party.

5. It is further the case of the prosecution that on reaching Shahkot, jeep in which party was tavelling was parked at the bus stand where from Bachittar Singh and Arur Singh were sent to contact the accused and other members of the party kept standing at some distance. After receiving signal from Arur Singh police party went to the office of the accused appellant and conducted his search in the presence of Tilak Raj Patwari who was also Joined in the investigation and on personal search for the accused purse was recovered from front pocket of the shirt of the accused wherefrom treated currency notes Ex. P.1 to Ex. P.3 were recovered which were taken into possession vide recovery memo Ex.PF Hands of the accused were washed in solution of soda bicarbonate, the colour of which turned pinkish. Solution was put in a nip and sealed with the seal impression CS and taken into possession vide memo Ex.PJ It was further alleged that Bachittar Singh produced copy of Jamabandi Ex.PM which was also taken into possession vide memo Ex.PH Rojnamcha Wakiati was also taken into possession vide memo Ex.PJ It is further the case of the prosecution that on further search of accused Rs. 700/- and a wrist watch were recovered and taken into possession vide memo Ex.PK The Investigating Officer also prepared rough site plan Ex.PM He deposited the case property with the MHC and after getting sanction Ex.PW4.A the appellant was challaned and sent for trial.

6. The accused appellant was charged under sections 13(2) read with Section 7 of the Act to which he pleaded not guilty and claimed trial.

7. The prosecution to prove its case examined complainant Bachittar Singh as PW 1, Arur Singh as PW 2, P.K Sood Senior Fisheries Officer as PW 3, Tilak Raj Patwari Halqa Allowal as PW 4 and Harbhajan Singh constable as PW 6.

8. When examined under section 313 of the Code of Criminal Procedure the accused admitted that he was posted as Patwari Halqa Sandhawala on 11.6.1992 but he denied all other allegations. The appellant raised the following defence :

“I am innocent. I have been falsely implicated in the present case. The complainant was inimical towards me because I have reported against him in proceedings for the correction of khasra Girdawari. I neither demanded nor had accepted any illegal gratification from the complainant. The complainant had tried to forcibly put money in my pocket but I was able to prevent him. No money was recovered by the police from me.”

9. The appellant in his defence produced a copy of Jamabandi for the year 1988-1989 Ex.DB, copy of order of Assistant Collector II grade to report after Nishandari of khasra numbers mentioned in the application Ex.DC, copy of Khasra Girdawari Ex.DD, copy of order of Naib Tehsildar Shahkot dated 29.5.1992 Ex.DE, copy of conveyance deed Ex.DF, and copies of sale deeds Ex. DG and Ex.DH and copy of voter list Ex. DJ.

10. Learned trial court came to the conclusion that the prosecution has proved the case as the appellant could not prove any enmity with the prosecution witnesses. The court held that evidence of Charan Singh Inspector inspired confidence. Learned trial court also held that the statement of Charan Singh Inspector with regard to the recovery supported by the statement of Shri P.K Sood, who appeared as PW3. He was member of the raiding party. The learned trial court held that factum of recovery of money stood proved. The court also came to the conclusion that the prosecution version was also supported by Arur Singh and Bachittar Singh PWs. The court also came to the conclusion that the factum that these notes were handed over to the accused is proved from the analysis of mixture of contents in Ex.P.4 showing that phenolphthal-ein powder applied to the notes had stuck to the hands of the accused and turned the colour of the mixture in which his hands were dipped, pinkish. Learned trial court also came to the conclusion that recovery of amount stood proved. Learned trial court also came to the conclusion that in view of the statement of PW 1 Bachittar Singh factum of demand stands proved. Learned trial court also came to the conclusion that the complainant categorically stated that the amount was demanded by the appellant though finally he demanded Rs. 400/-, the matter was settled at Rs. 250/- The learned trial court also held that in the present case the prosecution has examined independent and reliable witnesses and further proved the case with the help of detection made by Chemical process. Learned court also came to the conclusion that the factum of prosecution witnesses having turned hostile is of no consequence.

11. The defence raised by the appellant was rejected on the plea that the defence was totally vague and not proved by any cogent and reliable evidence on record.

12. Ms. Baljeet Mann, learned counsel appearing on behalf of the appellant has challenged the conviction and sentence awarded to the appellant on the plea that Bachittar Singh complainant was declared to be hostile as he did not support the prosecution version. It is also the case of the defence that even the shadow witness has turned hostile. Learned counsel for the appellant contended that PW4 official witness also did not support the prosecution case and therefore, it was not safe to convict the appellant on the statement of Inspector. Learned counsel for the appellant also contended that the documents produced on record as Ex.DB to Ex.DH prove the factum of enmity of Bachittar Singh. Learned counsel for the appellant vehemently argued that the case of the prosecution stands belied as per the statement of DW 1 which showed that the receipt had already been supplied to Sadhu Singh prior to the alleged occurrence. Sadhu Singh was proved to be a relation of the complainant. Learned counsel for the complainant contended that no date of demand has been mentioned. Learned counsel for the appellant also pointed out the discrepancies in the prosecution version on the plea that one witness stated that notes were recovered from the pants whereas other witnesses stated that the money was recovered from the shirt.

13. Learned counsel for the appellant pointed out that in this case shadow witness stated that the witness tried to give money which was refused which fell on the ground.

14. It is the case of the defence that Tilak Raj PW had taken a stand that money was recovered from the table, whereas PW 3 and PW 7 stated that money was recovered from the shirt. Learned counsel for the appellant also contended that there was no evidence to prove the acceptance by the appellant.

15. Learned counsel for the appellant contended that defence evidence brought on record proved the fact that the copy of the revenue record was received by Sadhu Singh brother-in-law of the complainant at 10.30 AM whereas the bribe is stated to have been given at 5.30 PM.

16. Learned counsel for the appellant by placing reliance on the judgment of this court in the case of Anand Parkash v. State of Haryana, 2008 (2) RCR (Criminal) 335 contended that positive result of phenolphthalein test was not enough to establish the guilt of the appellant as the prosecution version in the case has not been corroborated by independent witness; whereas, other two witnesses were official witnesses.

17. The contention of the learned counsel for the appellant is that it is not safe to convict an accused in the absence of independent corroboration. Learned counsel also contended that mere recovery of amount from the accused was not sufficient for conviction when other evidence was not reliable.

18. Learned counsel for the appellant finally contended that there was no witness to the demand of bribe except the complainant.

19. Learned counsel for the appellant thereafter by placing reliance on the judgment of Hon'ble Supreme Court in the case of Panalal Damodar Rathi v. State Of Maharashtra, 1979 Crl. L.J 936 contended that in the absence of corroborative evidence of the complainant on material particulars no conviction under the Act can be sustained.

20. Learned counsel for the appellant thereafter contended that conviction and sentence of the appellant cannot be sustained as Charan Singh who conducted the raid did not state before the court that he offered himself for his personal search by the accused. In support of this contention reliance has been placed on the judgment of this court in the case of State Of Punjab… v. Kushal Singh Pathania…, 2004 (4) RCR (Criminal) 498 wherein it has been laid down that if the police officer failed to offer himself for the search by the accused then the search conducted on the accused is apparently illegal and acquittal is bound to follow.

21. This Court in the case of State Of Punjab… v. Kushal Singh Pathania… (supra) has been pleased to lay down as under :

“15. After hearing learned counsel for the parties at a considerable length, I am of the view that this appeal is devoid of merit and is, thus, liable to be dismissed. After a detailed reference to the prosecution and defence evidence, a reasonable doubt has arisen with regard to the commission of offence by the accused-respondent. It is not unknown that the factory owners indulge in violation of the circulars regulating the timings of consumption of energy. The record of Motia Oil Industry is not beyond reasonable doubt because it has been proved that there was a fine of Rs. 52,000/- on this factory on 20.1.1992 as there was violation of the circular issued by the Board. It has also come in evidence that Motia Oil Industry out of frustration has been lodging first information reports against other officers as is evident from Ex.D-19 and Ex.D-20. There is also a reasonable doubt as no statement has been made by PW 4 Amrik Singh DSP Vigilance showing that he himself offered for his personal search. A reference to the statement made by DSP Vigilance would reveal that he failed to make any such statement before the Court. The statement of DSP Vigilance reads as under :

“In the month of August, 1992, 1 was posted as DSP Vigilance Bureau, Hoshiarpur. The investigation of this case was taken up by me. I recorded the statements of Nirmal Singh, Gian Singh and MHC Bakshish Singh. After completion of the investigation I challaned the accused in this case.”

16. It is only in the challan papers where it has been recorded that DSP Vigilance himself offered for personal search. But the statement could not ipso facto be accepted as the witness has not offered for cross-examination. Therefore, the benefit given by the Special Judge in favour of the accused-respondent on the basis of a judgment of this court Sushil Kumar v. State of Punjab, 1974 Chandigarh Law Reporter 193 is meritorious. It is pertinent to mentioned that this Court in Sushil Kuamr's case (supra) has taken the view that failure of a police officer to offer himself for search by the accused, then search conducted on the accused is absolutely illegal and acquittal is bound to follow”.

22. Learned counsel for the appellant finally placed reliance on the judgment of Hon'ble Supreme Court in the case of V. Venkata Subbarao v. State represented by Inspector of Police, A.P, 2007 (1) RCR (Criminal) 519 : 2007 (1) RAJ 321 : (2007) 3 SCC (Criminal) 175 wherein Hon'ble Supreme Court has been pleased to lay down as under :

“24. Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It 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, any gratification (other than legal remuneration) or 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 8 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.”

23. Mr. K.S Pannu, learned Assistant Advocate General, Punjab on the other hand, however contended that in the present case prosecution was able to prove that Arur Singh and Bachittar Singh PWs had given currency notes of Rs. 250/- to Vigilance Inspector and the said notes were in the shape of two notes of 100 denomination and one note of 50 denomination. The contention of the learned counsel for the State, therefore, was that the statements of Arur Singh and Bachittar Singh proved the fact of demand having been made. Learned counsel for the State further contended that the learned trial court has rightly come to the conclusion that the demand of money is alleged at two stages. First is in the initial stage when the complainant approached the accused for the first time for obtaining the copy of revenue record. Statement of Bachittar Singh, thus, proved the factum of demand. The contention of the learned counsel for the State, therefore, was that the appellant cannot seek benefit of non-proof of demand at the time of his arrest as the witness had turned hostile.

24. Learned counsel for the State placed reliance on the judgment of Hon'ble Supreme Court in the case of T. Shankar Prasad v. State of Andhra Pradesh, 2004 (1) RCR (Criminal) 784 : 2004 (2) Apex Criminal 384 to contend that the court can convict the accused on the basis of evidence of the complainant and the official witnesses and other circumstantial evidence even if the trap witness turned hostile. Learned counsel for the State also contended that once money was recovered from the pocket of the accused presumption under section 7 of the Act is obligatory. Said presumption can only be rebutted by positive proof and not explanation which may seem plausible.

25. Learned counsel for the State also placed reliance on the judgment of this court in the case of Ramesh Chander v. State of Punjab, 2005 (2) RCR (Criminal) 330 to contend that even if shadow witness turns hostile and independent witness not examined and the fact of recovery of tainted money is proved by Fisheries Officer as also the complainant and in the absence of any reason for false implication the conviction can be upheld.

26. However, on consideration of the matter, I find that in the present case the demand has not been proved by way of by of independent witness and the case is based purely on the statements of official witnesses as the complainant has also turned hostile in this case. It may also be noticed that in this case the defence has been proved on record as the copy of the revenue record was obtained by the relation of the complainant even prior to the demand of money. This fact coupled with the fact that there are material contradictions in the prosecution version with regard to the recovery, makes the case doubtful.

27. In the present case the Inspector had failed to offer himself for search before conducting the search of the appellant and therefore, it is not safe to convict the appellant merely on the statement of Investigating Officer and other official witnesses when there are material discrepancies, and defence version stands proved on record.

28. For the reasons stated above, this appeal is allowed. By giving the benefit of doubt, the appellant is acquitted of the charge framed against him.

Appeal allowed.