[CASE NUMBER] 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Date of Decision:14.05.2013. [ENTITY] Appellant VERSUS [ENTITY] Respondent CORAM: HON'BLE MR. JUSTICE [ENTITY] 1) Whether Reporters of the local papers may be allowed to see the judgment ? 2) To be referred to the Reporters or not ?. 3) Whether the judgment should be reported in the Digest ? Present: Mr. [ENTITY], Advocate, for the appellant. Mr. [ENTITY], AAG, Punjab. [ENTITY], J.
The challenge in the present appeal is to the judgment of conviction and order of sentence dated 13.12.2002 passed by learned Special Judge, Patiala, whereby the appellant has been convicted and sentenced under [SECTION] of the [ACT] (in short 'the Act') to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.4,000/-, in default of payment of fine, to undergo further rigorous imprisonment for a period of two months, in a case arising out of FIR No.59 dated 14.12.2000, registered under [SECTION], [SECTION] of the [ACT], Police Station Vigilance Bureau, Patiala.
Brief facts of the present case are that complainant [ENTITY] had to get a copy of mutation from [ENTITY], [ENTITY], as he required the same in connection with a loan case. [ENTITY], Platwari, demanded Rs.600/- as bribe for giving the said copy. The matter was settled at Rs.400/-. [ENTITY] then met [ENTITY]. Complainant [ENTITY] was advised by [ENTITY] to report the matter to the Viligance Authorities. Both of them went to the Vigilance Office and reported the matter to DSP. On the basis of the statement of complainant-[ENTITY], formal FIR was recorded. The complainant gave four currency notes of Rs.100/- each to the DSP. The DSP after applying Phenolphathalien Powder (hereinafter referred to as P. Powder) on the said currency notes returned the same to the complainant and directed him to hand over the bribe money on demand to the accused. Memo in this regard was prepared. The DSP then showed the demonstration of P. Powder to the complainant and [ENTITY], shadow witness. Memo in this regard was prepared. The shadow witness was advised to give a signal to the raiding party after the bribe money was accepted by the accused. [ENTITY] and [ENTITY] were joined as independent witnesses and they were apprised of the purpose of raid. Thereafter, the police party headed for the office of the accused in a Government vehicle. Complainant and shadow witness went to the office of [ENTITY], whereas, the remaining raiding party stayed behind. When the complainant met the accused, the accused asked him as to whether he had brought the money. The complainant then handed over the tainted currency notes to the accused. The accused gave copy of the mutation to the complainant. On receipt of signal from the shadow witness, the raiding party entered the office of the accused. The DSP then disclosed his identity to the accused and caught hold of the accused from his wrist. Sodium Carbonate solution was prepared in a glass of water. The hands of the accused were dipped in the solution which turned pink. The said solution was put in a nip and was sealed and was taken in possession. The accused produced four currency notes from the left pocket of the pant. The numbers were got tallied from independent witnesses with the numbers entered in the memo. The currency notes were taken in possession. Thereafter, the left pocket of pant of the accused was dipped in the solution of Sodium Carbonate. The colour of the solution turned pink. The solution was put in a nip and was sealed and was taken in possession. Personal search memo of the accused was prepared. The pant was made into a parcel and was taken in possession. Copy of the mutation was taken in possession from the complainant. Register jamabadi was taken in possession. Rought site plan was prepared. Statements of prosecution witnesses were recorded. After completion of investigation and necessary formalities. The accused was challaned.
Copies of the report under [SECTION] [ACT] were supplied to the accused, as envisaged under [SECTION] [ACT].
After providing a hearing to the prosecution as also the accused, charge under [SECTION] and [SECTION] of the Act was framed against the accused vide order dated 17.09.2001. The accused pleaded not guilty and claimed trial.
To support the charge against the accused, the prosecution examined [ENTITY] as PW 1, Constable [ENTITY] as PW 2, Head Constable [ENTITY] as PW 3, [ENTITY] as PW 4, [ENTITY] as PW 5, [ENTITY] as PW 6, [ENTITY] as PW 7 and [ENTITY] as PW 8.
Statement of the accused was recorded under [SECTION] [ACT] 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 Head Constable [ENTITY] as DW 1 and [ENTITY] as DW 2.
The trial court after conclusion of trial convicted and sentenced the appellant as aforesaid. Hence, this appeal.
I have heard the learned counsel for the parties and perused the record.
Learned counsel for the petitioner vehemently contended that from the perusal of Ex.DC which is copy of the roznamcha Wakiati dated 26.08.2000, entry no.511 clearly reveals that the complainant- [ENTITY] son of [ENTITY] had come to the office of the appeallant on 26.08.2000 and asked for demarcation of his land and the appellant replied to him that the appellant was not competent to do demarcation, only [ENTITY] was competent and threat was given by the complainant that the appellant would be falsely implicated. The present case is the result of that animosity and grudge. The learned counsel further contended that perusal of Ex.DD, entry no.186 dated 11.12.2000 reveals that the accused had already entered the mutation in the jamabandi on 11.12.2000 as asked by the complainant-[ENTITY], PW 4. As such, there was no question of raising the demand on 14.12.2000, when the appellant had already performed his duty.
The learned counsel for the appellant further contended that there was no occasion and motive to take bribe from the complainant. The complainant [ENTITY] (PW 4) and shadow witness [ENTITY] (PW 5), both are close relatives. It has been admitted by PW 5 [ENTITY] that his daughter-in-law is niece of [ENTITY]. PW4 and PW5 are interested witnesses. The learned counsel for the appellant further contended that there were independent witnesses available at the time of raid but they were not joined; one of them was [ENTITY]. [ENTITY] PW4 has admitted in his cross examination that there were 20 other persons sitting in that room along with the accused. The learned counsel for the appellant further contended that the shadow witness has stated in his statement that no demand had been raised by the appellant from the complainant in his presence. Prosecution has miserably failed to prove the demand raised by the accused. Mere recovery of tainted money is not sufficient. Demand must be proved. The investigation officer did not offer personal search to the appellant accused before arresting and effecting alleged recovery.
Besides this, various other discrepancies/contradictions have been pointed out in the statements of witnesses, which are alleged to be going to the root of the case. To substantiate his contentions, learned counsel for the appellant has relied upon number of authorities, which will be dealt with later on.
The learned State counsel vehemently contended that complainant has categorically deposed that he had met the accused for supply of the copy of the revenue record and accused demanded bribe from him. Thereafter the complainant and the shadow witness approached the vigilance department. In pursuance of the raid tainted currency notes were recovered from the left side pocket of the pant of the appellant. When the hands of the accused were dipped in the solution of sodium carbonate the colour of the pant and the hand wash turned pink. The appellant/accused was found in possession of currency notes smeared with P. powder and had accepted the money as bribe. Recovery of the tainted money raises legal presumption that the said amount was accepted as gratification as a reward for doing public duty by the appellant being a public servant. The prosecution case stands fully proved on record.
I have considered the rival contentions and perused the record. It is clear from the perusal of record that the document sought by the complainant had already been prepared on 11.12.2000. It means work was already done, therefore, there was no reason to demand and accept the bribe money. A perusal of document Ex. DC, which is the copy of roznamcha wakiati dated 26.8.2000 clearly reveals that complainant had earlier visited the appellant on 26.8.2000 and at that point of time he was pressing upon the appellant to demarcate his land. Appellant showed his inability to do the needful and told the complainant that patwari was not competent to demarcate the land without permission. It is only the [ENTITY] who is competent to carry out demarcations of the land. On this there was exchange of words and the complainant threatened the appellant to implicate in false case. This clearly indicates that complainant was nursing a grudge against the appellant. As a result of it, possibility of false implication cannot be ruled out. Independent witnesses were available when the raid was conducted. In the statement of [ENTITY]-complainant PW4 it has come that 20 other persons were sitting in that room along with the accused. PW5 [ENTITY]-shadow witness and PW7 [ENTITY] official witness have also admitted the fact that at least 3-4 persons were present in the room, including one more patwari, namely, [ENTITY]. The investigating officer, DSP did not bother to join any of them as independent witness to the incident. PW7 [ENTITY]official witness has not supported the entire story set up by the prosecution. He was declared hostile. [ENTITY] PW5 is a close relative of complainant and he admits that niece of [ENTITY] is his daughter- in-law and thus, is an interested 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.
There is material discrepancies in the statements of PW7 [ENTITY] and PW8 DSP. PW7 has stated that police party approached him at about 4.00 p.m. in order to join in the raid and he left the office at 4.30 p.m. Whereas in the statement of PW8 it is mentioned that they started from the office at 1.50 p.m. in jeep. [ENTITY] and [ENTITY] accompanied him. [ENTITY] has not been examined as a PW although his name figures in the list of prosecution witnesses. Even the shadow witness has stated in his statement that no demand had been raised by the appellant from complainant in his presence. The statement of the complainant had not been even supported in entirety by [ENTITY] PW5.
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 supplying the copy of revenue record. The prosecution has failed to prove the demand and acceptance of money as bribe money. Mere recovery of tainted money cannot be held that it was in lieu of bribe money.
As regards presumption under [SECTION] 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 reasonable doubt that accused had committed the offence for which he had been charged. As a general principle, the burden of proving actus reus and mens rea lies on the prosecution. [SECTION] 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 had 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] of the Act. The findings of the Hon'ble Supreme Court in the case of [PRECEDENT] reproduced below are relevant in this regard: -
"10. In [PRECEDENT], this Court while dealing with the case under the [ACT], by referring to its previous decision in the case of [PRECEDENT] 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 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."
Admittedly, the Investigating Officer did not offer personal search. This Court in [ENTITY] 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.
DW2 [ENTITY] appeared in the witness box and proved the document Ex.DC dated 26.8.2000 and Ex.DD dated 11.12.2000. Ex.DC proved the animosity and grudge which the complainant was nursing against the appellant. Ex.DD dated 11.12.2000 clearly indicates that the copy of the mutation was given to the complainant on 11.12.2000. Hence question of demand of bribe money on 14.12.2000 does not arise as work had already been done by the appellant. Besides this, there are contradictions/discrepancies with regard to the time, availability of independent witnesses, an official witness [ENTITY], who accompanied PW8 has not been examined.
In view of the above discussion, prosecution has failed to prove the case beyond reasonable doubt. So, this appeal is allowed, judgment of conviction and order of sentence dated 13.12.2002 are set aside and the appellant is acquitted of the charge framed.
Bail bonds stand discharged.
([ENTITY]) Judge May 14, 2013 R.S.