IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No. 418-SB of 1997 Date of Decision: 21.12.2009 Harbans Singh (since deceased) through L.Rs. ....... Appellant through Mrs.Baljit Mann, Advocate. Versus State of Punjab. ....... Respondent through Shri Gaurav Garg Dhuriwala, Assistant Advocate General. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. This appeal is directed against judgment of conviction and order of sentence dated 7.5.1997 passed by the Special Judge, Hoshiarpur (hereinafter referred to as `the trial Court') whereby appellant-Harbans Singh was convicted and sentenced under Section 13(2) read with Section 7 of the Prevention of Corruption Act,1988 (for short, `the Act'), to undergo rigorous imprisonment for one and a half years and to pay a fine of Rs.2000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months. Appellant- Harbans Singh expired on 1.10.2002 and Parminder Singh, his son, moved Crl.Misc.No.46062 of 2002 for grant of permission to pursue the appeal and the same was accepted vide order dated 31.1.2003. The allegation against the appellant was that he had accepted a Crl.Appeal No.418-SB of 1997 -2- .... bribe of Rs.200/- from the complainant-Faqir Chand alias Faqir Singh for rectifying a bill of electricity consumption charges which was wrongly issued to him. The demand for the said sum was allegedly made by the appellant on 30.4.1992, whereas the raid was conducted on 4.5.1992. The complainant had reported the matter to the Vigilance Department of the Government of Punjab about the demand of the appellant upon which Deputy Superintendent of Police -Malkiat Singh arranged the trap. PW7- Gurbux Singh was made a shadow witness, who accompanied the complainant to the office of the appellant. The raiding party, after receipt of a signal from PW7-Gurbax Singh, went at the spot, apprehended the appellant searched the drawer of his table from which the currency notes of Rs.200/- were recovered because the complainant had told that the said amount was placed by the appellant in the drawer. After completion of necessary investigation, a challan was presented against the appellant, who was charged by the trial Court under Section 13(2) read with Section 7 of the Act, to which he pleaded not guilty and claimed trial. The prosecution examined as many as nine witnesses and thereafter, the statement of the appellant was recorded under Section 313 of the Cr.P.C. in which he claimed innocence and denied the allegations against him. In his defence, the appellant had examined two witnesses. After appraisal of the entire evidence, the trial Court convicted and sentence the appellant, the details of which have been mentioned hereinabove. Crl.Appeal No.418-SB of 1997 -3- .... Learned counsel for the appellant, with reference to the evidence on record, has raised the following contentions:- (1)that the demand for the amount in question by the appellant was not proved; (2) that the currency notes of Rs.200/- (two notes of Rs.100/- denomination each) were found in the drawer of the table and were not handed over to him and, therefore, it cannot be said that he had accepted the bribe; (3) that there is discrepancy between the statements of the complainant, shadow witness and the Deputy Superintendent of Police, which points to the falsity of the prosecution case; (4) that no independent witness was associated with the raid; and (5) that the recovery of the bribe money was also not conclusively established because of the discrepancies in the statements of the witnesses. On the basis of the above contentions, learned counsel for the appellant urged that the appellant be acquitted of the charge levelled against him. In support of her contentions, he placed reliance on Meena W/o Balwant Hemke Versus State of Maharashtra, 2000(2) R.C.R. (Criminal) 661 (S.C.); Subash Parbt Sonvane Versus State of Gujarat, 2002(3) R.C.R. (Criminal) 188 (S.C.); Ganpathi Sanya Naik Versus State of Karnataka, 2007(4) R.C.R.(Criminal) 184 (S.C.); Gian Parkash Sharma Versus Central Bureau of Investigation, Chandigarh, 2004(3) R.C.R.(Criminal) 842 (P&H); Crl.Appeal No.418-SB of 1997 -4- .... State of Punjab Versus Kushal Singh Pathania, 2004(4) R.C.R.(Criminal) 498 (P&H); Amrik Singh Versus State of Punjab, 2005(4) R.C.R.(Criminal) 310 (P&H); Anand Parkash Versus State of Haryana, 2008(2) R.C.R. (Criminal) 335 (P&H) and Karnail Singh Versus State of Punjab, 2009(1) R.C.R.(Criminal) 403 (P&H). On the other hand, learned counsel for the respondent-State contended that there is no reason to implicate the appellant falsely and in view of the fact that the witnesses have supported the case of the prosecution and the amount was recovered from his possession, the case against him stood proved beyond reasonable doubt and that the conviction & sentence as awarded by the trial Court are justified. I have thoughtfully considered the rival contentions and have perused the record. The foremost thing that has to be considered is as to whether or not the demand in the given set of circumstances has been proved beyond any doubt. In this regard, the evidence of only the complainant himself is on record as the demand was not made in the presence of any other person and consequently, his statement, who is naturally interested in the success of his case ipso facto cannot be accepted that the demand had been actually raised by the appellant. This impression of the Court is also strengthened by the fact that subsequent to the demand, a raid was conducted which was not without any blemish. The sequence of events leading to the raid is not trustworthy. It has come in the testimony of complainant-Faqir Chand that Crl.Appeal No.418-SB of 1997 -5- .... he had put the amount of Rs.200/- which currency notes were treated with phenolphthalein powder in the drawer of the appellant and that this was done when Gurbax Singh, shadow witness, remained inside the room. He further stated that after putting the money in the drawer, he did not know as to what had happened. He also deposed that there were many other persons sitting in the room and Gurbax Singh stood by his side when he had gone to give the bribe money. It has also come in his statement that the amount of Rs.281/- was deleted from book, Exhibit P1, by MadanLal, Clerk, thereby suggesting conclusively that no correction had been made in the bill by the appellant. Now, if the testimony of PW7-Gurbax Singh is to be seen, the same is totally at variance to the statement of the complainant. He has stated that he never entered the room where the appellant was present and he had remained standing outside the room. He has further stated that the recovery was never effected in his presence. Similarly, Deputy Superintendent of Police -Malkiat Singh (PW9) under whose auspices the entire raid was conducted, also admitted that the amount was recovered from the drawer of the appellant. All these aforesaid factors points to the inconclusive nature of the evidence produced by the prosecution against the appellant. In the case of Meena W/o Balwant Hemka (supra), the Supreme Court in paragraphs 11 and 12 of the judgment, observed as under:- “11. The learned Judge in the High Court seems to have Crl.Appeal No.418-SB of 1997 -6- .... mechanically affixed his approval to the findings recorded by the trial Judge by profusely extracting such findings. Mere recovery of the currency note of Rs.20/- denomination, and that too lying on the pad on the table, by itself cannot be held to be proper or sufficient proof of the acceptance of bribe, in the peculiar circumstances of this case which lend also credence to the case of the appellant that it fell on the table in the process of the appellant pushing it away with her hands when attempted to be thrust into her hands by PW-1. The results of phenolphthalein test, viewed in the context that the appellant could have also come into contact with the currency note when she pushed it away with her hands cannot by itself be considered to be of any relevance to prove that the appellant really accepted the bribe amount. With such perfunctory nature of materials and the prevaricating type of evidence of PW-1 and PW-3, who seem to have strong prejudice against the appellant, it would be not only unsafe but dangerous to rest conviction upon their testimony. PW-1, if really was keen on getting the copy of the record urgently, could have made an urgent application to have them delivered within 3 days instead of making an ordinary application and going on such an errand, which makes it even reasonable to assume that the trio of PW- 1, PW-3 and Jagdish Bokade were attempting to weave a web around the appellant to somehow get her into trouble and Crl.Appeal No.418-SB of 1997 -7- .... victimise her. 12. The fact that the judgments of the Courts below were rendered concurrently cannot dissuade us from interfering in a case like this where such findings and conviction have been recorded on mere conjectures and erratic evaluation of the evidence on record. Consistency for the mere sake of it is no virtue. It is an obligation of judicial conscience to correct errors, where the same are manifest. The judgments of the Courts below suffer from serious infirmities and manifest errors on account of unwarranted inferences liberally drawn by the Courts below against the appellant, overlooking the fundamental principle of presumption of innocence of an accused till the charge levelled and his guilt is established beyond all reasonable doubt. The Courts below have failed to consider the adverse impact on the prosecution case from the evidence of PW-2 and the withholding of the lady constable and Jagdish Bokade, two material witnesses. The appellant cannot be, on the basis of available evidence, held to have tacitly accepted the illegal gratification as alleged. The materials on record in this case are not sufficient to bring home the guilt of the appellant. Consequently, the appeal is allowed. The conviction and sentence of the appellant is set aside and the fine, if any paid, shall be refunded to the appellant.” Crl.Appeal No.418-SB of 1997 -8- .... Similarly, in Subash Parbt Sonvane's case (supra), the Apex Court observed in paragraph 10 of the judgment as under:- “10. In the background of aforesaid settled legal position, we would now refer to the relevant part of the evidence. Before the trial court, it was submitted by the learned APP that complainant has not supported the prosecution case on main ingredients of demand and acceptance and was treated hostile. In cross-examination also, he has not supported the prosecution version on demand or acceptance of the amount. The trial court has also observed that the complainant deliberately does not support on the points of demand and acceptance. However, the Court relied upon the evidence of Panch Shailesh Devshankar Pandya (PW2). We were taken through the evidence of PW2 Pandya and from his evidence, it is difficult to find out any statement made by him that accused demanded any amount from the complainant. The relevant part of the evidence of this witness suggests that when the prosecution party went at the police chowki, accused asked the complainant as to whyhe had come there at that time? To that, complainant replied that hewaswaiting since 1.00 O'clock and that hehas brought one witness to be examined. Accused informed him to come in the evening as his writer was not present. When the accused started to go towards toilet, the complainant followed him and he gave something from his pocket to the accused who took the Crl.Appeal No.418-SB of 1997 -9- .... same and put that in his pocket. From this evidence, it cannot be inferred that accused demanded any amount from the complainant or that he had obtained the same. It is apparent that the trial court and the High Court misread the evidence of PW2 and held that there was demand by the accused and the amount was paid to him by the complainant. It was unreasonable to hold that accused demanded money from the complainant. Complainant denied the said story and PW2 had not stated so.” In Ganapathi Sanya Naik's case (supra), the Supreme Court again observed in paragraph 8 of the judgment as under:- “8. We have heard the learned counsel for the parties. We find that the view taken by the trial court was clearly possible on the evidence in the case. The Court had observed that the plea of the defence at the very initial stage was that PW-6 had serious animosity towards the appellant and that the currency notes had been put on the table by the former was a plausible explanation. It is in the evidence that the currency notes had not been touched by the appellant or recovered from his person. It is also the prosecution case that the relevant documents had been handed over to Nagarja immediately after the money had been put on the table. The argument therefore that there was no occasion to make a demand for any bribe is also plausible. We are thus of the opinion that in an appeal against acquittal where the High Court's interference is in a manner circumscribed, Crl.Appeal No.418-SB of 1997 -10- .... there was no justification in upsetting the judgment of the trial court. Accordingly, we allow the appeal, set aside the judgment of the High Court, and order the appellant's acquittal.” This Court has also has taken similar view in Gian Parkash Sharma's case (supra); Kushal Singh Pathania's case (supra) and Amrik Singh's case (supra). For the aforesaid reasons and keeping in view the law laid down in the above mentioned cases, when the prosecution has failed to establish the demand and acceptance of bribe by the appellant, I am of the considered opinion that the case against him cannot be said to have been proved beyond reasonable shadow of doubt. Merely because the amount was placed in the drawer of the appellant does not mean that the same was demanded or accepted by the appellant. No independent witness was examined and there are serious discrepancies in the statement of the complainant, who himself has been involved as a witness in various cases and the discrepancies in the statement of the shadow witness, who has stated that the recovery was not effected in his presence, and, therefore, it is held that the prosecution has not been able to prove its case against the appellant. Consequently, this appeal is accepted, the impugned judgment of conviction and order of sentence are set aside and the appellant is acquitted of the charge levelled against him. The amount of fine, if already paid, be refunded to the legal representative of the appellant. December 21,2009 ( Mahesh Grover ) “SCM” Judge