Criminal Appeal No. 1432-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 1432-SB of 2001 Date of decision : September 01, 2011 Gobinder Singh ....Appellant versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. P.S. Hundal, Senior Advocate with Mr. Premjit Singh Hundal, Advocate, for the appellant Ms. Gagan Mohini, Assistant Advocate General, Punjab L.N. Mittal, J. (Oral) Accused Gobinder Singh having been convicted and sentenced by learned Special Judge, Patiala vide judgment and order dated 8.12.2001, under section 7 of the Prevention of Corruption Act, 1988 (in short, the Act) to undergo rigorous imprisonment for two years and to pay fine of Rs 5000/- and in default thereof, to undergo further rigorous imprisonment for two months, has filed the instant criminal appeal. Criminal Appeal No. 1432-SB of 2001 -2- Prosecution case may be narrated as under :- The accused was posted as Patwari. Complainant Balkar Singh approached the accused on 11.10.1995 for entry of mutation. The accused demanded Rs 3000/- as bribe. However, the deal was struck at Rs 1500/-. The complainant promised to pay the same on 13.10.1995. However, on 12.10.1995, the complainant talked to his relative Gurdial Singh. Both of them went to DSP Amar Nath, Vigilance Bureau, Patiala on 13.10.1995. The complainant made statement to the DSP regarding the aforesaid demand made by the accused. Thereupon the instant case was registered and investigated. The complainant gave 15 currency notes of Rs 100/- denomination. Phenolphthalein powder was applied to the same. Numbers of the currency notes were recorded in memo. The notes were given back to the complainant. Gurdial Singh was made shadow witness. Necessary instructions were given to the complainant and the shadow witness. Raiding party was formed. On the way, Babu Lal, Accountant from the office of Block Development and Panchayat Officer was joined in the raiding party. The complainant and the shadow witness went inside the office of the accused whereas the remaining party stayed behind. The accused asked the complainant about the bribe money. The complainant replied in affirmative. The accused took the complainant to adjoining room where at the asking of the accused, the complainant kept the tainted currency notes on a table under table cloth. The shadow witness flashed necessary signal to the raiding party who reached there. On enquiry, the accused told the DSP that the bribe money was lying on the aforesaid table Criminal Appeal No. 1432-SB of 2001 -3- under the table cloth. The tainted currency notes were recovered from there. Numbers thereof tallied with the numbers recorded in the memo. Corner of the table cloth was dipped in solution of sodium carbonate and its colour turned pink. The solution was sealed in a nip. All the articles were taken into possession by the police. Roznamcha Wakiati and mutation register were also seized by the police. Statements of witnesses were recorded. Accused was arrested. Sanction for his prosecution was obtained. On completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of the accused under sections 7 and 13(2) of the Act. Charge under section 13(1)(d) read with section 13(2) of the Act and under section 7 of the Act was framed against the accused. He pleaded not guilty and claimed trial. To prove its case, the prosecution has examined ten witnesses. MHC Gurcharan Singh PW1, Constable Gurdev Singh PW3 and Constable Gora Lal PW4 being formal witnesses tendered their affidavits in evidence. Gurmukh Singh PW2 proved appointment order and posting order of the accused. Complainant Balkar Singh as PW5 turned hostile. He stated that he had never gone to the accused for entry of mutation nor the accused ever demanded or accepted any bribe from him for entering the mutation. The complainant was declared hostile and was cross-examined by learned Public Prosecutor but the witness still denied the prosecution version. Criminal Appeal No. 1432-SB of 2001 -4- Babu Lal PW6 (member of the raiding party) and shadow witness Gurdial Singh PW7 broadly stated according to the prosecution version. Manmohan Singh, Kanungo, PW8 stated that there is incomplete entry of mutation made by the accused in the mutation register. He identified hand writing and signatures of the accused. DSP Amar Nath (Investigating Officer) had since died and therefore, in his place Narinder Kumar Kaushal, DSP, PW9 was examined. He identified signatures of DSP Amar Nath on various documents. Balbir Kaur, Clerk, PW10 proved sanction order for prosecution of the accused. The accused in his examination under section 313 Cr.P.C. denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that he has been falsely implicated in this case. No evidence was led by the accused in his defence. Learned Special Judge, Patiala vide impugned judgment dated 8.12.2001 convicted the accused under section 7 of the Act and observed that separate conviction under section 13(1)(d) read with section 13(2) of the Act is not being ordered. After hearing the parties on sentence, learned Special Judge vide impugned order dated 8.12.2001 imposed sentence on the convict as already noticed hereinbefore. Feeling aggrieved, the convict has preferred the instant criminal appeal. I have heard learned counsel for the parties and perused the Criminal Appeal No. 1432-SB of 2001 -5- case file with their assistance. Learned counsel for the appellant vehemently contended that the complainant has turned hostile completely and therefore, demand and payment of bribe money is not proved. It was also pointed out that the complainant was not confronted with relevant part of his statement under section 161 Cr.P.C. regarding demand of bribe money by the accused at the time of trap and the said fact is also missing from the sanction order which is also un-dated. Counsel for the appellant also submitted that Babu Lal PW6 has stated that the accused had not told the place where the tainted currency notes had been kept. In cross-examination, Babu Lal even went to the extent of stating that even recovery of the tainted money was not effected in his presence. He also deposed that Gurdial Singh shadow witness had gone to the office of the accused along with him (Babu Lal) and it would depict that Gurdial Singh had not accompanied the complainant to the office of the accused and had not heard the conversation of the complainant with the accused and had not seen the payment of bribe money. It was also canvassed that Gurdial Singh PW7, who has supported the prosecution case, is a close relative of the complainant because complainant Balkar Singh is husband of sister of wife of Gurdial Singh. It was canvassed that solitary statement of Gurdial Singh without corroboration is not sufficient to convict the accused. Reliance has been placed on judgment of Hon'ble Supreme Court in Panalal Damodar Rathi v. State of Maharashtra, AIR 1979 (SC) 1191. In that case, the complainant had supported the prosecution case but his testimony was not corroborated in Criminal Appeal No. 1432-SB of 2001 -6- material particulars by other evidence and therefore, the accused was acquitted. In the instant case, it was contended, testimony of shadow witness Gurdial Singh is not corroborated in material particulars by other evidence and therefore, it would be unsafe to uphold the conviction of the accused. It was also submitted that no independent witness was associated in the raid although independent witnesses were available on way to the office of the accused. It was also argued that Investigating Officer has not been examined (having died) and therefore, the accused has been prejudiced and deserves benefit of doubt. It was also pointed out that recovery of tainted currency notes was also not effected from the person or possession of the accused but was effected from a table in adjoining room and there is no evidence to depict that the said table was office table of the accused. On the other hand, learned State counsel vehemently contended that statement of Gurdial Singh PW7 is sufficient to prove demand and payment of the bribe money and his statement is corroborated by Babu Lal PW6. I have carefully considered the rival contentions. On careful perusal and scrutiny of the prosecution evidence, taking an overall view of the evidence, I am of the considered opinion that guilt of the accused is not proved beyond reasonable doubt. The prosecution case suffers from infirmities and therefore, it would be unsafe to uphold the conviction of the accused. On the other hand, the prosecution case being highly doubtful, the accused deserves the benefit of doubt. As noticed hereinbefore, the complainant has turned hostile Criminal Appeal No. 1432-SB of 2001 -7- completely. He has stated that he never went to the accused nor the accused ever demanded or accepted any bribe from him. In view of the said statement of the complainant, entire case of the prosecution becomes doubtful. Testimony of Gurdial Singh PW7 alone would not, therefore, be sufficient to convict the accused in view of aforesaid testimony of the complainant. In addition to the aforesaid, Babu Lal PW6 who broadly supported the prosecution case in examination-in-chief, however, was shaken in cross-examination possibly because he had been won over by the accused in the meantime because cross-examination was recorded on a different date. However, the fact remains that in cross-examination, Babu Lal stated that recovery of the tainted money was not effected in his presence. He also stated that Gurdial Singh had gone along with him to the office of the accused. Consequently, the testimony of Gurdial Singh is not corroborated in material particulars by the testimony of Babu Lal. Viewed in the aforesaid context, non-examination of the Investigating Officer on account of his death would also go in favour of the accused. Benefit of his non-examination would accrue for the benefit of the accused and against the prosecution. Non-examination of the Investigating Officer, a very material witness in such cases, would cause serious prejudice to the defence of the accused, particularly when the complainant has turned hostile and another witness of the trap has not supported the prosecution case in material particulars. In a given case, if there is other sufficient evidence, mere non-examination of the Investigating Criminal Appeal No. 1432-SB of 2001 -8- Officer may not be sufficient to acquit the accused. However, in the instant case, the Investigating Officer has not been examined on account of his death and other evidence led by the prosecution is also not sufficient to bring home the charge against the accused beyond reasonable doubt. It would also not be out of place to notice here with some significance that recovery of tainted currency notes was also not effected from the person or possession of the accused. The recovery was also not effected from his seat. It is the prosecution case that the accused was sitting in his office when the raid was conducted whereas the tainted currency notes were recovered from a table in the adjoining room. There is no evidence to depict that the said table was in exclusive possession of the accused or was meant for use by the accused. Even Gurdial Singh PW7 had not gone to the said adjoining room when the complainant kept the currency notes on the said table allegedly at the asking of the accused although Gurdial Singh stated having seen everything happening in the adjoining room by peeping through slight opening of the intervening door. The accused himself did not touch the currency notes nor the recovery of the said notes was effected from his possession or seat. For the reasons aforesaid, cumulative effect of analysis of the prosecution evidence is that the prosecution case is not free from doubt. Consequently, the accused-appellant deserves benefit of doubt. Accordingly, the instant criminal appeal is allowed. Impugned judgment and order of learned Special Judge are set aside and the appellant is acquitted of the charge against him giving him benefit of doubt. Fine Criminal Appeal No. 1432-SB of 2001 -9- already paid by the accused shall be refunded to him. Bail bonds furnished by the accused stand discharged. ( L.N. Mittal ) September 01, 2011 Judge 'dalbir'