Crl. Appeal No. 130-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 130-SB of 2003 Date of Decision : July 14, 2011 Hardev Singh .... Appellant Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. P. S. Kang, Advocate for the appellant. Ms. Gagan Mohini, AAG, Punjab. * * * L. N. MITTAL, J. (Oral) : Accused Hardev Singh has filed the instant criminal appeal impugning judgment and order dated 04.01.2003 passed by learned Special Judge, Patiala, thereby convicting the appellant under Section 7 of the Prevention of Corruption Act, 1988 (in short – the Act) and sentencing him to undergo rigorous imprisonment for 02 years and 06 months and to pay fine of Rs.5,000/- and in default thereof, to undergo further rigorous imprisonment for three months. Prosecution case, in brief, may be narrated as under :- Complainant Baljit Singh went to the accused (Patwari Halqa) Crl. Appeal No. 130-SB of 2003 2 for obtaining copy of jamabandi and missal hakiat of the land of his father. The accused demanded Rs.2,000/- as illegal gratification for the same. However, the bargain was struck at Rs.1,000/-. The complainant disclosed about it to Amarjit Singh. Then on 03.08.2000, Baljit Singh – complainant and Amarjit Singh went to Deputy Superintendent of Police (Vigilance) Narinder Pal Kaushal. Complainant made statement to him and on its basis, FIR was registered. The complainant gave two currency notes of Rs.500/- denomination to the DSP, who applied phenolphthalein powder to the same and returned the same to the complainant. Memo in this regard was prepared. Numbers of the currency notes were mentioned in the memo. Amarjit Singh was made shadow witness. Necessary instructions were given to the complainant and the shadow witness. Demonstration was also given to them to depict that phenolphthalein powder turned colour of sodium carbonate solution into pink. Lakhbir Singh – Clerk from the office of Chief Agricultural Officer and Dr.Ashrafjit Singh from T. B. Hospital were joined as independent witnesses. They were also introduced to the complainant and the shadow witness and were also told the purpose of the raid. Usual trap was laid. The complainant and the shadow witness went to the accused. The remaining raiding party stayed behind. The accused demanded bribe money from the complainant, who gave the same to the accused. Thereupon, the shadow witness gave necessary signal to the raiding party, who reached the spot. Hand-wash of the accused in solution Crl. Appeal No. 130-SB of 2003 3 of sodium carbonate turned its colour to pink. It was sealed in a nip. Tainted currency notes were recovered from the right hand of the accused. Numbers thereof tallied with the numbers mentioned in the memo. The currency notes were seized by the police. Register mutation, Register ujrat and photocopy of missal hakiat were seized by the police. Necessary investigation proceedings were conducted at the spot. Sanction for prosecution of the accused was obtained. On completion of investigation, report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.) was presented for prosecution of the accused under Sections 7 and 13 (2) of the Act. Charge under Sections 7 and 13 (1) (d) of the Act read with Section 13 (2) of the Act was framed against the accused, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined eight witnesses. Balbir Kaur – Bill Clerk (PW-1) proved sanction order for prosecution of the accused. Head Constable Gurbej Singh (PW-2), Constable Swaran Singh (PW-3) and Constable Joginder Singh (PW-8), being formal witnesses, tendered their affidavits in evidence. Dr.Ashrafjit Singh (PW-4), complainant Baljit Singh (PW-5) and DSP Narinder Pal Kaushal (PW-7) broadly stated according to the prosecution version. Amarjit Singh – shadow witness (PW-6) turned hostile and did not support the prosecution case. Crl. Appeal No. 130-SB of 2003 4 PW Lakhbir Singh was given up as unnecessary. On completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. to explain the incriminating circumstances appearing against him in prosecution evidence. The accused denied all the incriminating circumstances and claimed to be innocent. The accused alleged that he was apprehended on way to market for personal work, while Kuldip Singh and Mewa Singh were also with him. No recovery was effected from him. All the prosecution witnesses were interested and inimical to him. In defence, the accused examined six witnesses. Bal Krishan – Steno (DW-1) proved entry dated 31.08.2000 regarding application of the accused made against complainant Baljit Singh and other persons that they had misbehaved with him and threatened him. The said application was sent to police by office of Sub Divisional Magistrate. This witness also identified the signatures of Tehsildar on application Ex.D-C made by the accused to Tehsildar. Aman Singh – Member Panchayat (DW-2) stated that on 25.07.2000, while the accused was conducting girdawari of damage to crops due to floods, the complainant, along with another person, came there and demanded jamabandis from the accused, but the accused told them that he would be busy for 2-3 days in conducting girdawari of damage to crops due to floods. Thereupon, the complainant started quarrelling with the accused and also threatened him with dire consequences. Jaswinder Kaur Crl. Appeal No. 130-SB of 2003 5 (DW-3) has also made similar statement. Head Constable Gurbhej Singh (DW-4) proved DDR regarding depositing of case property of this case and dispatch of case property to the Chemical Examiner. Head Constable Vijay Kumar (DW-5) brought complaint register and deposed that the complaint made by the accused against Balbir Singh and others was disposed of. Devinder Singh Patwari (DW-6) proved Report Roznamcha entry Ex.D-E regarding alleged dispute of accused with the complainant. The accused also tendered in evidence statement dated 21.11.1986 (Ex.D-F) made by Baljit Singh as prosecution witness in some other case and copy of judgment dated 29.11.1986 (Ex.D-G), whereby accused Gurdas Ram of the said case was acquitted in corruption case, giving benefit of doubt. Learned Special Judge, Patiala, vide impugned judgment and order dated 04.01.2003, convicted and sentenced the accused, as already noticed in the opening part of this judgment. Feeling aggrieved, the convict has preferred the instant appeal. I have heard the arguments advanced by learned counsel for both the parties and also carefully perused the case file with their assistance. Learned counsel for the appellant vehemently contended that the complainant does not own any land in the Village, but still demanded copy of jamabandi and the accused refused. It was also contended that the complainant quarrelled with the accused and threatened him on 25.07.2000, regarding which the accused made application Ex.D-C to Tehsildar for Crl. Appeal No. 130-SB of 2003 6 providing him security. Reference in this regard was made to statements of Amar Singh (DW-2) and Jaswinder Kaur (DW-3). Learned counsel for the appellant next contended that Amarjit Singh – shadow witness (PW-6) has turned hostile and has not supported the prosecution case, and therefore, there is no evidence to prove the alleged demand of illegal gratification by the accused. In this context, it was also canvassed that complainant Baljit Singh is not a reliable witness as he was disbelieved in a case against Gurdas Ram vide judgment Ex.D-G. Learned counsel for the appellant also argued that Lakhbir Singh, who was also in the raiding party, has not been examined as witness by the prosecution. It was also submitted that no person from the locality was joined in the raiding party although Dr.Ashrafjit Singh (PW-4) stated that office of the accused was located in residential locality. It was also pointed out that there is contradiction in the statements of prosecution witnesses as to where Dr.Ashrafjit Singh was joined in the raiding party. The said witness has also not stated about demand of bribe by the accused. On the other hand, learned State counsel, while controverting the contentions of appellant's counsel, contended that statement of the complainant is sufficient to prove the demand of bribe by the accused. It was also canvassed that recovery of tainted money from the accused further corroborates the testimony of the complainant. It was also submitted that Dr.Ashrafjit Singh is an independent reliable witness and DSP Narinder Pal Kaushal (PW-7) is also reliable witness, being Gazetted Officer and having Crl. Appeal No. 130-SB of 2003 7 no bias against the accused. It was also pointed out that there is no reason why the prosecution witnesses would depose falsely against the accused. I have carefully considered the rival contentions. Defence evidence that there was some occurrence on 25.07.2000, in which the complainant allegedly threatened the accused, is a complete fabrication and result of after thought. No such version was put to the prosecution witnesses in their cross-examination. Even the accused, in his examination under Section 313 Cr.P.C., did not plead any such version. Complaint Ex.D-C, allegedly made by the accused to Tehsildar, bears the date as 25.07.2000, but it appears to have been moved on 21.08.2000, as per number and date mentioned thereon. No person from the office of Tehsildar was examined to state as to when this application was actually moved. On the contrary, Bal Krishan (DW-1) – Steno from the office Sub Divisional Magistrate was made to identify the signatures of Tehsildar on application Ex.D-C. However, fact remains that this application was not moved on 25.07.2000 and was apparently moved long after the instant case had been registered against the accused and he had been caught red-handed by the police. In this context, it is significant to notice that entry of this application in the register of Sub Divisional Magistrate, Patiala is dated 31.08.2000. On the contrary, if any such occurrence had taken place, the accused would have put the same to the prosecution witnesses in their cross- examination and would have stated the same in his own statement. Omission to do so also falsifies the defence evidence in this regard. Crl. Appeal No. 130-SB of 2003 8 Merely because Amarjit Singh (PW-6) – shadow witness has turned hostile, the entire prosecution evidence cannot be discarded and thrown away. Fate of a case regarding offence under the Act cannot be left to the whims and fancies of the shadow witness, who was joined in the raiding party. It is significant to notice that even shadow witness Amarjit Singh (PW-6) stated that Baljit Singh had taken him to Vigilance Office at Patiala, but Baljit Singh did not disclose to him regarding demand of bribe by the accused. Amarjit Singh also stated that he did not know why he had been taken by Baljit Singh to Vigilance Bureau, Patiala. This statement of Amarjit Singh clearly depicts that he entered the witness-box with determination to tell lies in order to favour the accused. It is surprising that Amarjit Singh accompanied the complainant to the office of Vigilance Bureau without even knowing the purpose, for which he was being taken by the complainant to the said office. Moreover, Amarjit Singh has also admitted his signatures on various memos, but in order to help the accused, the witness stated that he did not know about the contents of said memos. It is thus manifest that Amarjit Singh intentionally did not support the prosecution case in order to save the accused. On the contrary, the prosecution has led other sufficient evidence to prove its case beyond reasonable doubt. Statement of complainant Baljit Singh is sufficient to prove the demand and acceptance of bribe by the accused. His statement is corroborated by the recovery of tainted money from the accused, as deposed to not only by the complainant Crl. Appeal No. 130-SB of 2003 9 himself, but also by Dr.Ashrafjit Singh and DSP Narinder Pal Kaushal. Evidence of hand-wash of the accused also corroborates the said recovery. There is no reason why all these witnesses would depose falsely against the accused. Even no suggestion was put to them in their cross-examination in this regard. These witnesses had no enmity with the accused. Dr.Ashrafjit Singh had no interest whatsoever in the success of the case. Being Gazetted Medical Officer, his testimony inspires confidence, particularly because there is no reason to doubt or disbelieve the same. Even testimony of DSP Narinder Pal Kaushal is credible and there is no reason to doubt or discard the same. He also had no interest in the complainant or malice or bias against the accused so as to implicate him falsely. Even the complainant had no motive to implicate the accused in a false case. In the aforesaid context, it would not be out of place to notice that the accused, in his statement under Section 313 Cr.P.C., pleaded that while going to market with Kuldip Singh and Mewa Singh, he was apprehended by the police. However, the accused did not even dare to examine said Kuldip Singh and Mewa Singh in defence. The said version was also an after-thought version as it was also not put to the prosecution witnesses in their cross-examination. In any event, the said version has also not been substantiated. Witnesses of his choice, mentioned by the accused in his statement under Section 313 Cr.P.C., have also not been examined by the accused in support of said version. Non-examination of Lakhbir Singh as prosecution witness is Crl. Appeal No. 130-SB of 2003 10 completely immaterial because it is not necessary to examine all witnesses of the same fact. On the contrary, examination of Lakhbir Singh as witness would have been avoidable duplicity of evidence. He could have deposed regarding facts, which have been deposed by Dr.Ashrafjit Singh and DSP Narinder Pal Kaushal, as also by the complainant. Consequently, Lakhbir Singh was rightly given up by the prosecution as unnecessary. As regards contradiction regarding the place where Dr.Ashrafjit Singh was joined in the raiding party, even counsel for the appellant was fair to state that it is a minor contradiction. Even otherwise, said minor contradiction cannot be said to be fatal to the prosecution case. Non-joining of any person from the locality is also immaterial because already two independent witnesses Lakhbir Singh and Dr.Ashrafjit Singh had been joined in the raiding party. Admission of Dr.Ashrafjit Singh that demand of bribe was not made in his presence is consistent with the prosecution version and the same is, therefore, of no help to the accused-appellant. Prosecution evidence is consistent and credible. Statements of Dr.Ashrafjit Singh (PW-4), complainant Baljit Singh (PW-5) and DSP Narinder Pal Kaushal (PW-7) could not be impeached in their cross- examination. Their statements along with other evidence on record are sufficient to prove the guilt of the accused-appellant beyond shadow of reasonable doubt. For the reasons aforesaid, I affirm the finding of the learned trial Judge that prosecution has proved the guilt of the accused beyond Crl. Appeal No. 130-SB of 2003 11 reasonable doubt. Accordingly, impugned judgment of conviction is affirmed. Learned counsel for the appellant contended that occurrence took place almost 11 years ago. It was also submitted that the accused is out of job and did not receive any pensionary benefits. It was also pointed out that the accused is aged about 65 years. Accordingly, counsel for the appellant prayed for reduction in sentence. The prayer has been opposed by learned State counsel. I have carefully considered the matter. Keeping in view all the circumstances, I am of the considered opinion that ends of justice would be met if substantive sentence of imprisonment is reduced from 02 years and 06 months to 01 year and 06 months, while maintaining the sentence of fine and the sentence of imprisonment in default thereof. It is ordered accordingly. With reduction in sentence as aforesaid, the appeal stands disposed of accordingly. The appellant, who is on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence. July 14, 2011 ( L. N. MITTAL ) monika JUDGE