Crl.Appeal No.1347-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1347-SB of 2002 Date of decision:25.10.2010 Jangir Singh … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.B.S.Sidhu, Advocate, for the appellant. Mr.Arshvinder Singh, DAG, Punjab. … JORA SINGH, J. This appeal has been instituted by Jangir Singh against the judgment of conviction and order of sentence dated 9.8.2002 passed by Special Judge, Faridkot, in Sessions Case No. 9 dated 27.9.1995/7.12.2000, arising out of FIR No.135 dated 1.12.1994 under Sections 7/13(2) of Prevention of Corruption Act (for short `the Act’), PS Sadar, Muktsar. By the said judgment, he was convicted under Sections 7/13(2) of the Act and sentenced to undergo RI for six months under Section 7 of the Act and to undergo RI for one year and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for three months under Section 13(2) of the Act. Both the sentences were ordered to run concurrently. Prosecution story, in brief, was that Avtar Singh, complainant, is the resident of Village Phullewala. His Sandu Manjit Singh had died in the year 1989. Widow of Manjit Singh, namely, Kulbir Kaur and her mother-in-law had purchased 10 acres of land vide four sale deeds. Two sale deeds were executed in the month of July, 1994, one sale deed was Crl.Appeal No.1347-SB of 2002 2 executed in the month of August, 1994, and fourth sale deed was executed on 7.11.1994. In view of first three sale deeds, mutation was got entered in the month of September, 1994. Fourth sale deed dated 7.11.1994 was handed over to the complainant by his sister-in-law Kulbir Kaur, widow of Manjit Singh, and her mother-in-law for getting the mutation entered and sanctioned. On 29.11.1994, he had contacted Jangir Singh, Revenue Patwari of Village Bhangchari, for entering mutation as per fourth sale deed and also enquired from Jangir Singh about the mutation on the basis of earlier three sale deeds. Then Patwari replied that as per three sale deeds, mutation was entered and to enter mutation on the basis of fourth sale deed and for getting the mutation sanctioned on the basis of all the four sale deeds from Tehsildar, Rs.5,000/- was demanded as illegal gratification. There was settlement for Rs.3,000/-. Complainant was not willing to pay illegal gratification and by making false promise to arrange payment came back from the office of the accused. Accused directed the complainant to bring payment on 1.12.1994. Complainant informed Jaspal Singh that accused was demanding illegal gratification to enter and sanction mutation. Complainant along with Jaspal Singh on 1.12.1994 had gone to the office of Vigilance Bureau, Faridkot. Story was brought to the notice of DSP, Vigilance Bureau, Faridkot. Statement of Avtar Singh (Ex.PA) was recorded. He had signed the same in token of its correctness. Avtar Singh had produced six currency notes, each of the denomination of Rs.500/- before DSP Prem Nath Bali. Numbers of the currency notes were noted. After applying phenolphthalein powder to the currency notes, same were handed back to the complainant with the instructions to pay only those currency notes to the accused on demand. Crl.Appeal No.1347-SB of 2002 3 Marked currency notes were handed over to the complainant vide memo (Ex.PB) attested by the witnesses. Demonstration was given to the complainant and Jaspal Singh, shadow witness, by preparing a solution by adding sodium carbonate in a glass of water. Colour of solution did not change. Then after applying phenolphthalein powder on a piece of paper, paper was dipped into the same solution. Then its colour became light pink. Jaspal Singh was joined as shadow witness and was directed to accompany the complainant and hear the conversation amongst the accused and complainant regarding demand and payment of illegal gratification and to give the agreed signal to the raiding party. After making endorsement, statement was sent to the concerned police station, on the basis of which, formal FIR was recorded. Mukhtiar Singh, JE, Public Health Department, was joined as independent witness and was introduced to the complainant and shadow witness. After joining independent witness, raiding party had gone towards the office of the accused. Raiding party had stayed at some distance. Complainant and shadow witness were sent to the office of accused. On demand, complainant had handed over marked currency notes to the accused, then shadow witness gave agreed signal to the raiding party. Raid was conducted. Accused was apprehended. IO had disclosed his identity to the accused. A glass of water was arranged, in which sodium carbonate was added. Then colour of solution did not change. After that, hands of accused were got washed in the solution. Then its colour became light pink. Solution was transferred into nip and sealed by the IO with own seal bearing impression `PN'. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. On search of jacket of the accused, Crl.Appeal No.1347-SB of 2002 4 tainted currency notes were recovered from the pocket. Numbers of currency notes recovered were got tallied with the numbers already noted in the memo through Mukhtiar Singh, JE. Numbers of recovered currency notes had tallied with the numbers noted in the memo. Recovered currency notes were taken into police possession vide separate memo attested by the witnesses. On personal search of the accused, one wrist watch, one ball pen and Rs.9199/- were recovered. Recovered articles were taken into police possession vide separate memo attested by the witnesses. Again solution was prepared in the same manner. Pocket of jacket was got washed in the said solution. Then colour of solution had changed into light pink. Solution was transferred into nip and sealed by the IO with own seal bearing impression `PN'. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Jacket of the accused was also taken into police possession vide separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. Statements of witnesses were recorded. On receipt of sanction to launch prosecution and after completion of investigation, challan was presented in the Court. Accused was charged under Sections 7/13(2) of the Act, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Avtar Singh, complainant, reiterated his stand before the police as per statement (Ex.PA). PW2 Constable Swaran Singh tendered his affidavit (Ex.PF). PW3 Jaspal Singh did not support the story and was declared hostile. Crl.Appeal No.1347-SB of 2002 5 PW4 Mukhtiar Singh was joined as independent witness. He has supported the story. PW5 Constable Rajbir Singh has deposited sealed parcel in the office of FSL. PW6 Arun Kumar, Junior Assistant, stated that sanction (Ex.PK) was accorded by the District Magistrate, Faridkot, to launch prosecution. PW7 HC Bhupinder Kumar was serving as MHC, with whom case property was deposited by the IO. PW8 DSP Prem Nath Bali is the Investigating Officer. After close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the appellant was as under:- “I am innocent. I have been falsely implicated in this case. I did not demand or accept any amount. No recovery of the currency notes has been made from my person. The proceedings regarding my hand wash and pocket wash are fake one. The police has collected false circumstances and evidence against me.” Opportunity was given to lead evidence but no defence was led. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Crl.Appeal No.1347-SB of 2002 6 Learned defence counsel for the appellant argued that according to the story, four sale deeds were executed in favour of Kulbir Kaur and her mother-in-law. Two sale deeds were executed in the month of July, 1994, one in the month of August, 1994, and last sale deed was executed on 7.11.1994. First three sale deeds were produced before the appellant to sanction mutation. On the basis of three sale deeds, mutation was entered. Fourth sale deed dated 7.11.1994 was handed over to the appellant for getting the same entered and to sanction mutation on the basis of all the four sale deeds. On 29.11.1994, complainant had gone to the office of the appellant. Then appellant, to enter mutation as per fourth sale deed and for getting the mutation sanctioned on the basis of all the four sale deeds, demanded Rs.5,000/- but there was settlement for Rs.3,000/-. By making false excuse to arrange payment, complainant came back from the office of the appellant. Appellant had directed the complainant to bring payment on 1.12.1994 for getting the mutation entered and sanctioned as per all the sale deeds from the Tehsildar. Complainant had contacted Jaspal Singh on 1.12.1994 and had gone to the office of Vigilance Bureau, Faridkot. In ruqa, there is not a word that story qua demand of illegal gratification was brought to the notice of shadow witness. According to ruqa, on the basis of first three sale deeds, mutation was got entered by Kulbir Kaur and her mother-in-law. Only last sale deed dated 7.11.1994 was handed over to the complainant for getting the mutation entered and sanctioned. But complainant when appeared in Court, then stated that he had produced all the sale deeds before the appellant. Qua earlier three sale deeds, there was no demand of illegal gratification. When fourth sale deed was presented before the appellant, then he demanded illegal gratification. Crl.Appeal No.1347-SB of 2002 7 Jaspal Singh was joined as shadow witness but he was the real cousin brother of the complainant. He (Jaspal Singh) did not support the story and was declared hostile. According to the story, illegal gratification was demanded on 29.11.1994 but complainant when appeared in Court, then stated that one day earlier to the raid, appellant had demanded illegal gratification. Prosecution is not clear as to whether illegal gratification was demanded on 29.11.1994 or 30.11.1994. When there was no demand of illegal gratification while entering mutation on the basis of first three sale deeds, then there was no idea to demand illegal gratification when fourth sale deed was presented before the appellant by Avtar Singh, complainant. Role of the appellant was to enter mutation. Mutation was to be sanctioned by the Tehsildar. Complainant when appeared in Court, then stated that he had handed over four sale deeds to the appellant, i.e., three sale deeds at one time and one at one time for entry of mutation. Then stated that appellant did not demand illegal gratification when on the basis of four sale deed, mutation was entered. When on the basis of fourth sale deed, appellant had entered mutation without demanding illegal gratification, then there was no idea to demand illegal gratification for sanction of mutation because mutation was to be sanctioned by the Tehsildar and not by the appellant. If on 29.11.1994, appellant had demanded illegal gratification, then on the same day or on the next day, matter should have been brought to the notice of Vigilance Department. Complainant did not disclose to the Vigilance Department that Jaspal Singh was his real cousin brother. Complainant as PW1 in cross-examination admitted that when he offered money, then the same was not accepted by the appellant. Then on his insistence, appellant had accepted payment. At the time of entering of mutation as per last sale Crl.Appeal No.1347-SB of 2002 8 deed, he had altercation with the appellant. Jacket of the appellant was hanging on the peg. According to the story, illegal gratification was recovered from the pocket of jacket but IO stated that recovery of illegal gratification was not from the jacket hanging on the peg. Evidence shows that there was no demand of illegal gratification. Payment was offered by the complainant but the same was not accepted by the appellant. At the insistence of the complainant, payment was accepted. Possibility of putting tainted currency notes cleverly in the pocket of jacket hanging on the peg cannot be ruled out. As per all the sale deeds, mutation was entered by the appellant. There was no demand of illegal gratification. In fact, tainted currency notes were cleverly put in the pocket of jacket hanging on the peg. Mere recovery of tainted currency notes is not sufficient to convict the appellant. Appellant is 72 years' old and is suffering from paralysis. He cannot move, walk and eat. This fact is clear from the certificate. Certificate was got verified from the concerned doctor by learned State counsel and certificate was found to be rightly issued. Argued that evidence on file was not rightly scrutinized by the trial Court. Requested to accept the appeal. Learned State counsel argued that four sale deeds were executed in favour of Kulbir Kaur and her mother-in-law. On the basis of first three sale deeds, mutation was entered by the appellant. Appellant was to see when he was to demand illegal gratification. If while entering mutation as per first three sale deeds, there was no demand of illegal gratification, then appellant cannot argue that at the time of entering of mutation as per fourth sale deed, no question of demand of illegal gratification. It was for the appellant to see when and where he was to Crl.Appeal No.1347-SB of 2002 9 demand illegal gratification. Shadow witness did not support the story but no reason to disbelieve the complainant, official witness and IO. Illegal gratification was demanded by the appellant to enter the mutation on the basis of fourth sale deed and for getting the mutation sanctioned as per all sale deeds from the Tehsildar. For that purpose, illegal gratification was demanded. When complainant along with shadow witness had gone to the office of appellant, then appellant had enquired from the complainant as to whether he has brought illegal gratification. Reply of the complainant was in affirmative. Payment was handed over to the appellant and the same was kept in the pocket of jacket. No case of the appellant that sale deeds were not produced for entering the mutation and the jacket was not of the appellant. After acceptance of illegal gratification, marked currency notes were kept in the pocket of jacket. Recovery of marked currency notes was from the jacket and the jacket was of the appellant. Evidence on file was rightly scrutinized. According to the story, 10 acres of land was purchased as per four sale deeds. Two sale deeds were executed in the month of July, 1994, one sale deed was executed in the month of August, 1994, and last sale deed was executed on 7.11.1994. On the basis of three sale deeds, mutation was entered in favour of Kulbir Kaur and her mother-in-law. Fourth sale deed dated 7.11.1994 was handed over to the complainant for getting the mutation entered from the appellant and for getting the mutation sanctioned on the basis of all the sale deeds. When fourth sale deed was produced before the appellant on 29.11.1994 to enter mutation, then appellant had demanded illegal gratification to enter mutation and for getting the mutation sanctioned on the basis of all the sale deeds from the Tehsildar. That Crl.Appeal No.1347-SB of 2002 10 means, when mutation was entered on the basis of first three sale deeds, then there was no demand of illegal gratification by the appellant from Kulbir Kaur and her mother-in-law. Dispute is whether appellant had demanded illegal gratification when fourth sale deed was produced before the appellant to enter mutation and for getting the mutation sanctioned on the basis of all the sale deeds from the Tehsildar. Kulbir Kaur and her mother-in-law were not produced by the prosecution as to whether they had presented first three sale deeds or all the four sale deeds were handed over to the complainant for getting the mutation entered from the appellant and sanctioned from the Tehsildar. Defence version of the appellant was that on the basis of all the sale deeds, mutation was entered. There was no demand of illegal gratification. Mutation was to be sanctioned by the Tehsildar. When the appellant had already entered mutations without demand of illegal gratification, then there was no idea to demand illegal gratification for getting the mutation sanctioned from the Tehsildar. According to ruqa (Ex.PA), i.e., statement of Avtar Singh dated 1.12.1994, Kulbir Kaur and her mother-in-law got the mutation entered on the basis of first three sale deeds. Only last sale deed dated 7.11.1994 was handed over to the complainant for getting the mutation entered and sanctioned as per all the sale deeds. Now the question is whether prosecution story inspires confidence or defence version seems to be more probable. Admittedly, 10 acres of land was purchased by Kulbir Kaur and her mother-in-law vide four sale deeds. Two sale deeds were executed in the month of July, 1994, one sale deed was executed in the month of August, 1994, and last sale deed was executed on 7.11.1994. Crl.Appeal No.1347-SB of 2002 11 First three sale deeds were produced before the appellant and on the basis of those sale deeds, mutation was entered by the appellant. At the time of entering the mutation on the basis of first three sale deeds, there was no demand of illegal gratification by the appellant. Kulbir Kaur or her mother-in-law was not produced by the prosecution. They are to state as to whether earlier three sale deeds were produced by them before the appellant, whether the appellant had demanded illegal gratification or not or all the four sale deeds were handed over to the complainant for mutation purposes. Avtar Singh, complainant, when appeared in the Court, then stated that he had produced three sale deeds at one time and one sale deed was produced at one time. When three sale deeds were presented before the appellant, then there was no demand of illegal gratification. At the time of submission of last sale deed, appellant had demanded illegal gratification. But this fact is not correct one because according to ruqa (Ex.PA), earlier three sale deeds were produced by Kulbir Kaur and her mother-in-law and on the basis of these sale deeds, mutation was entered by the appellant. There was no demand of illegal gratification from Kulbir Kaur or her mother-in-law. But in Court, complainant stated that he had produced all the four sale deeds before the Revenue Patwari for entering mutation. No case of the complainant that when first three sale deeds were produced before the appellant and mutation was entered, then there was demand of illegal gratification. Case of the complainant was that when the fourth sale deed was produced for entering mutation and sanctioning of mutation, then appellant had demanded illegal gratification. Demand of illegal gratification was on 29.11.1994 and if version of the complainant was Crl.Appeal No.1347-SB of 2002 12 correct one, then on 29.11.1994 or on the next day, matter should have been brought to the notice of Vigilance Department. No explanation why complainant remained silent. On 1.12.1994, complainant and Jaspal Singh had gone to the office of Vigilance Department, then story was brought to the notice of DSP, Vigilance Department. Statement of Avtar Singh (Ex.PA) was recorded. Avtar Singh did not disclose to the IO that Jaspal Singh was his real cousin brother. In Ex.PA, there is not a word that Avtar Singh had disclosed to Jaspal Singh that appellant was demanding illegal gratification to enter mutation and for getting mutation sanctioned. Avtar Singh while appearing as PW1, then stated that he had handed over four sale deeds to the appellant. Three sale deeds were presented at one time but no demand of illegal gratification. Fourth sale deed was presented on 29.11.1994 before the appellant. Avtar Singh in cross-examination admitted that at the time of entering mutation on the basis of fourth sale deed, there was no demand of illegal gratification. As discussed earlier, role of the appellant was to enter mutation only. Appellant was not competent to sanction mutation. After entering mutation, papers were to be placed before the sanctioning authority, i.e., Tehsildar. No case of the prosecution that for getting mutation sanctioned from the Tehsildar, appellant had demanded illegal gratification. When appellant was not competent to sanction mutation and had entered mutations without demand of illegal gratification, then story is doubtful. In 2004(4) RCR (Crl.) 655, Mehar Chand vs. State of Haryana, Bribery case- Accused was acquitted on the allegation that firstly, prosecution failed to show that official was in a position to perform certain Crl.Appeal No.1347-SB of 2002 13 official acts of which the aggrieved party would have received some benefit; secondly, the official had agreed to perform those acts and had also agreed to accept money as reward, and thirdly, the money had been paid to the official as bribe and recovered from his possession. In 2004(2) RCR (Crl.) 272, Pawan Kumar vs. State of Punjab, case was under Corruption Act- Recovery of Rs.50/- as bribe money- Story was ignored and accused was acquitted on the allegation that accused had no authority to do the work for which bribe was given- Question of giving money thus did not arise. In 2009(3) RCR (Crl.) 971, State of Punjab vs. Sohan Singh, accused was working as Junior Engineer in Electricity Department- Allegation was that he demanded illegal gratification for release of electric connection out of turn- But accused as Junior Engineer had no role to play in grant of electric connection out of turn. In the present case also, appellant was not competent to sanction mutation. Appellant without demand of illegal gratification had entered mutations on the basis of all the sale deeds. According to the story, to enter mutation on the basis of fourth sale deed and for getting the mutation sanctioned, appellant demanded illegal gratification. Jaspal Singh was joined as shadow witness to accompany the complainant and hear conversation regarding demand and acceptance of illegal gratification. Avtar Singh when appeared in Court, then stated that he had handed over four sale deeds to the appellant, i.e., three sale deeds at one time and one sale deed at one time to enter mutation. Appellant had entered mutations on the basis of all the four sale deeds but did not demand illegal gratification. When he offered money, then the same Crl.Appeal No.1347-SB of 2002 14 was not accepted by the appellant. Then on his insistence, appellant had accepted the same. Jaspal Singh, shadow witness, appeared as PW3 but did not support the prosecution story. Jaspal Singh in cross-examination stated that when the complainant, who is his real cousin brother, offered payment, then appellant had refused to accept the same. Then Avtar Singh had stealthily put the currency notes into the pocket of jacket, which was hanging on the peg fixed in the wall. Mukhtiar Singh, JE, joined as independent witness, and stated that one person out of Jaspal Singh or Avtar Singh had entered the office of the appellant, then he came out and gave signal to the raiding party. That means, there was no demand of illegal gratification and no acceptance by the appellant. Possibility of stealthily putting the currency notes into the pocket of jacket, which was hanging on the peg fixed in the wall, cannot be ruled out. After receiving signal, raid was conducted. According to the complainant, marked currency notes were recovered from the pocket of jacket, which was found hanging on the peg but the IO stated that marked currency notes were not recovered from the pocket of jacket hanging on the peg. If recovery was not from the pocket of jacket, then as per IO, recovery was from the person of the appellant. If recovery was from the person of the appellant, then statement of complainant and Mukhtiar Singh,