Crl.Appeal No. 2376-SB of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.2376-SB of 2004 Date of decision:17.3.2011 Jaipal Singh ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.S.S.Narula, Advocate, for the appellant. Mr.P.S.Sidhu, Addl.AG, Punjab. ... JORA SINGH, J. Jaipal preferred this appeal to impugn the judgment of conviction and order of sentence dated 22.11.2004 rendered by Special Judge, Fatehgarh Sahib, in Sessions Case No. 7 of 18.6.2001, arising out of FIR No. 9 dated 16.2.2001 under Sections 7/13(2) of Prevention of Corruption Act, 1988 (for short `the Act'), PS Vigilance Bureau, Patiala. By the said judgment, he was convicted under Section 7 of the Act and sentenced to undergo RI for 1-1/2 years and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for 3 months. Prosecution story, in brief, is that Smt. Gurnam Kaur widow of Bhinder Singh, complainant, is the resident of Village Melewali, Khamanon. Bhinder Singh had died about 7 years ago. Complainant has two sons and both are simpleton and one is blind. Rattan Singh and Prem Singh are the brothers of Bhinder Singh. There is one plot measuring 15 biswas owned by the father-in-law of the complainant. Rattan Singh and Crl.Appeal No. 2376-SB of 2004 2 Prem Singh have sold 5 biswas out of that plot and she was to file civil suit. Jamabandi was required and to get jamabandi, she contacted Halqa Patwari Jaipal Singh. Jaipal Singh, Halqa Patwari, was present in his office and was requested to supply copy of jamabandi. Then he demanded Rs.300/- as illegal gratification for issuance of jamabandi. There was settlement for Rs.200/-. She made false excuse that she is not in possession of Rs.200/-. She came back from the office of the accused. After that, she along with Mukhtiar Singh, resident of Village Badla, had gone to the office of Vigilance Bureau and entire story was brought to the notice of DSP, Vigilance, Fatehgarh Sahib. DSP recorded the statement of Gurnam Kaur (Ex.PA), who had thumb marked in token of its correctness. Gurnam Kaur, complainant, produced two currency notes, each of the denomination of Rs.100/- before the DSP. Phenolphthalein powder was applied to the currency notes and numbers of currency notes were noted. Solution was prepared by adding Sodium Carbonate. Demonstration was given as to how colour of solution was to change. After demonstration, solution was destroyed. Marked currency notes were handed over to the complainant with direction to hand over only marked currency notes to the accused on demand. Mukhtiar Singh was joined as shadow witness. He was directed to accompany the complainant and to over hear the conversation regarding demand and acceptance of illegal gratification and after acceptance of illegal gratification, to give agreed signal to the raiding party. Gurcharan Lal from the office of Education Department and Laxmi Kant, Clerk from the office of Tehsildar, were joined as official witnesses. They were introduced to the complainant and shadow witness. After making endorsement, statement was sent to the concerned police Station, on the Crl.Appeal No. 2376-SB of 2004 3 basis of which, formal FIR was recorded. Raiding party was constituted. Complainant and shadow witness were sent to the office of the accused and remaining members of the raiding party had stayed at some distance in a scattered position. After demand and acceptance of illegal gratification, shadow witness gave agreed signal to the raiding part. Raiding party headed by DSP Paramjit Singh had gone to the office of the accused. Accused was found present in his office and directed not to move. IO had disclosed his identity and purpose for raid. Solution was prepared by adding sodium carbonate. Then colour of solution did not change. Then hands of official witnesses were washed in that solution but again colour of solution did not change. After that, hands of the accused were got washed in that solution. Then colour of solution changed into light pink. Solution was transferred into a nip and was sealed. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Currency notes were recovered from the envelope. Numbers of recovered marked currency notes were got compared with the numbers of currency notes already noted in the memo and the same were found tallying. Recovered currency notes were taken into police possession vide separate memo attested by the witnesses. On personal search of the accused, one purse containing Rs.3100/-, identity card and driving licence were recovered and same were taken into police possession vide separate memo attested by the witnesses. Complainant produced copy of jamabandi (Ex.P4), which was taken into police possession. Accused produced roznamcha vakayati and the same was taken into possession vide separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. Case property was deposited with the Crl.Appeal No. 2376-SB of 2004 4 Incharge of Malkahan. After receipt of sanction to prosecute the accused, challan was presented in Court. Accused was charged under Sections 7/13(2) of the Act, to which he pleaded not guilty and claimed trial. Prosecution examined number of witnesses. PW1 Gurnam Kaur is the complainant. She reiterated her stand before the police. PW2 Gurcharan Lal is the official witness. He has also supported the prosecution story. PW3 HC Gurbhej Singh tendered his affidavit (Ex.PW3/A). PW4 Mukhtiar Singh is the shadow witness. He has also supported the prosecution story on material points. PW5 Gurjeet Singh, Clerk of DC office, Fatehgarh Sahib. Stated that as per record brought by him, two sale deeds dated 9.10.2000 and 16.10.2000 were registered. Copies of the same are Ex.PW5/A and Ex.PW5/B. PW6 Rajinder Singh, Sadar Kanungo, proved sanction (Ex.PW6/A) accorded by District Collector, Fatehgarh Sahib, to launch prosecution. PW7 Constable Harminder Singh tendered his affidavit (Ex.PW7/A). PW8 Satpal Singh brough service book of the accused and stated that on 16.2.2001, accused was Halqa Patwari of Village Kalewal. Ex.PW8/A is the copy of order. PW9 DSP Paramjit Singh Khaira is the Investigating Officer. After close of the prosecution evidence, statement of accused Crl.Appeal No. 2376-SB of 2004 5 was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that there was no demand of illegal gratification. marked currency notes were not recovered from him. False case was got registered against him with the connivance of Mukhtiar Singh. Gurnam Kaur desired that mutation as per registered sale deeds executed by Prem Singh and Rattan Singh should not be entered and got sanctioned. He failed to oblige Gurnam Kaur because his duty was to enter mutation as per registered sale deeds and put up before the revenue officer for sanctioning. Sukhdev Singh, brother-in-law of Mukhtiar Singh had applied for the post of Lambardar in place of his deceased brother Amarjit Singh. Mukhtiar Sintgh desired that no proclamation/munadi should be done by him regarding this fact. He failed to oblige Mukhtiar Singh. Munadi was got done as per order of the Tehsildar after entering rapat No.309 dated 1.2.2001 in the rapat roznamcha. All the documents were prepared while sitting in the office. On 16.2.2001 at about noon, he had gone to urinate and in his absence, Gurnam Kaur had kept a printed brief envelope of an Advocate in his office in the presence of Balamjit Singh. After some time, envelope containing currency notes was taken away by DSP, Vigilance. He lodged protest but DSP did not listen him. In defence, DW1 Rameshwar Lal, Junior Assistant, Record Room, stated that as per record, on 3.11.2000, Sukhdev Singh applied for appointment as Lambardar in place of his deceased brother. Ex.DA is the copy of application. Entry was made in the rapat roznamcha on 2.2.2001. Copy of the same is Ex.DB. Entry in the rapat roznamcha was by the Crl.Appeal No. 2376-SB of 2004 6 accused. DW2 Harpal Singh, Office Kanungo, stated that as per sale deeds executed by Prem Singh and Rattan Singh, mutations were sanctioned. Copies of the same are Ex.DC and Ex.DD). Mutations were entered by Jaipal Singh, Patwari, in mutation register. DW3 Balamjit Singh stated that on 16.2.2001 at about 10/11.00 AM, he had gone to the office of the accused. He was present in his office. Accused had gone to urinate and in his absence, complainant came with an envelope. Envelope was kept in the register of the accused lying on the table. He enquired from Gurnam Kaur, complainant, as to what she was keeping there on the table. Then she replied that certain documents were required by the Patwari and she had brought those documents from the Advocate. In the meantime, accused came and from the other side, raiding party came to the office of the accused and accused was apprehended. He lodged protest but DSP did not listen him. Next day, he along with 2-3 persons had gone to the office of DSP, Vigilance, but no action. DW4 Constable Narinder Singh brought the summoned record and stated that Ex.DD and Ex.DE are the photostat copies of original roznamcha dated 16.2.2001. DW5 HC Amrik Singh brought log book of vehicle No. PB-12- G-5215. Ex.DF is the copy of entry in the log book filled in by DSP, Vigilance Bureau, Fatehgarh Sahib. 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. Crl.Appeal No. 2376-SB of 2004 7 I have heard learned defnece counsel for the appellant, learned State counsel and have gone through the evidence on the file. Learned defence counsel for the appellant argued that Mukhtiar Singh was joined as shadow witness but he did not support the story. Mukhtiar Singh stated that for the first time, he had gone to the office of DSP, Vigilance, whereas Gurnam Kaur, complainant, stated that she along with Mukhtiar Singh had gone to the office of the appellant for issuance of copy of jamabandi. Mukhtiar Singh did not state a word that in his presence, appellant had demanded and accepted illegal gratification. PW2 Gurcharan Lal admitted that one person was sitting in the office of the appellant but he failed to name the person present in the office. DW3 Balamjit Singh stated that he was present in the office of the appellant when complainant came and had kept envelope in the registers lying on the table of the appellant, when the appellant had gone to urinate. DW3 was not inimical towards the complainant party. He was not related to the appellant. Statement of DW3 shows that story is not correct one. Husband of Gurnam Kaur, namely, Bhinder Singh, had two brothers, i.e., Rattan Singh and Prem Singh. There was a plot measuring 15 biswas. All the brothers had equal share. Property was joint. Only 5 biswas was sold by Rattan Singh and Prem Singh. As per registered sale deeds, mutation was entered by the appellant. Gurnam Kaur was pressurizing the appellant not to enter mutation as per registered sale deeds and get the mutation sanctioned from the revenue officer. Appellant failed to oblige the complainant. So, due to this reason, complainant was inimical towards the appellant. DW2 Harpal Singh brought the record and stated that as per registered sale deeds executed by Rattan Singh and Prem Singh, mutation Crl.Appeal No. 2376-SB of 2004 8 was entered by the appellant. Copies of the same are Ex.DC and Ex.DD. Brother-in-law of Mukhtiar Singh, shadow witness, had applied for the post of Lambardar in place of his deceased brother. Mukhtiar Singh was pressurizing the appellant not to effect munadi in the village but appellant did not oblige him. Due to this reason, Mukhtiar Singh was also inimical towards the appellant. DW1 Rameshwar Lal brought record and stated that on 3.11.2000, Sukhdev Singh had applied for the post of Lambardar in place of his deceased brother. Entry was made by the appellant on 2.2.2001. copy of the same is Ex.DB. As per story, two official witnesses, namely, Gurcharan Lal and Laxmi Kant, were joined but Laxmi Kant was not examined. Gurcharan Lal appeared as PW2 but he is a police tout. Already, he had appeared as prosecution witness in another case. Mukhtiar Singh, shadow witness, was also one of the prosecution witnesses in a case registered against Nahar Singh, Patwari. Copy of jamabandi was required to file civil suit but till today, no civil suit by Gurnam Kaur. Gurnam Kaur had produced copy of jamabandi. So, after the copy of jamabandi was supplied to Gurnam Kaur, then there was no idea to demand illegal gratification. To convict the appellant under the Corruption Act, prosecution was required to establish that there was a demand of illegal gratification. Illegal gratification was accepted by the appellant and lastly, bribe money was recovered. But in the present case, no cogent and convincing evidence on the file regarding demand and acceptance of illegal gratification. Mere recovery of marked currency notes is not sufficient to convict the appellant. Defence version seems to be more probable than the prosecute story. Learned State counsel argued that appellant was serving as Crl.Appeal No. 2376-SB of 2004 9 Revenue Patwari. Father-in-law of the complainant had a plot measuring 15 biswas. Property was joint. In half portion of the plot, husband of the complainant had installed a flour mill. Without partition, 5 biswas out of the said plot were sold by Rattan Singh and Prem Singh. To file civil suit, jamabandi was required. Gurnam Kaur is an old lady. She has two sons but both are abnormal. She had no enmity with the appellant, so there was no idea to implicate him. Nothing on the file that Sukhdev Singh was the brother-in-law of Mukhtiar Singh. No question was put to Mukhtiar Singh that his brother-in-law had applied for the post of Lambardar and he was pressurizing the appellant not to effect munadi in the village. No suggestion to Gurnam Kaur or Mukhtiar Singh that Balamjit Singh was also present in the office of the appellant. If Gurnam Kaur was not demanding copy of jamabandi and had kept the envelope containing currency notes on the table of the appellant in his absence, then no question of recovery of copy of jamabandi from Gurnam Kaur. Copy of jamabandi is supplied by the Patwari when fee is deposited. Without deposit of required fee, copy of jamabandi is not to be supplied. Gurnam Kaur had gone to the office of appellant for the issuance of jamabandi, then there was demand of illegal gratification. Payment was not with the complainant, then she came back from the office of the appellant to bring payment. After that, matter was reported to the Vigilance Department. In the meantime, jamabandi was prepared by the appellant. After collecting payment, copy of jamabandi was supplied to the complainant and that copy of jamabandi was produced by the complainant before the raiding party. No allegation of the appellant that he was forced to prepare copy of jamabandi. Admittedly, appellant was serving as Revenue Patwari on Crl.Appeal No. 2376-SB of 2004 10 16.2.2001. Case of the prosecution is that appellant had demanded illegal gratification to issue copy of jamabandi, whereas defence version of the appellant is that Gurnam Kaur and Mukhtiar Singh were inimical towards the appellant because appellant had failed to oblige them. Now the question is whether prosecution story inspires confidence or defence version seems to be more probable. First submission of learned defence counsel for the appellant was that Mukhtiar Singh was joined as shadow witness but he did not support the prosecution story. There is no cogent and convincing evidence on the file that there was a demand and acceptance of illegal gratification. Brother-in-law of Mukhtiar singh had applied for the post of Lambardar in place of his deceased brother. Entry was made in the roznamcha on 2.2.2001. Mukhtiar Singh was pressurizing the appellant not to effect munadi in the village. Appellant failed to oblige Mukhtiar Singh. Due to this reason, Mukhtiar Singh was inimical towards the appellant but after going through the evidence on the file, I am not in a position to agree with the submission of learned defence counsel. DW1 Rameshwar Lal stated that on 3.11.2000, Sukhdev Singh had applied for the post of Lambardar in place of his deceased brother. Copy of the application is Ex.DA. Entry was made by the appellant on 2.2.2001 and copy of the same is Ex.DB. But statement of DW1 Rameshwar Lal is not helpful to the appellant because no question was put to Mukhtiar Singh that his brother-in-law Sukhdev Singh son Balwant Singh, resident of Bilaspur, had applied for the post of Lambardar. In case, Sukhdev Singh is the brother-in-law of Mukhtiar Singh, then learned defence counsel should have cross-examined Mukhtiar Singh that his brother-in-law Sukhdev Singh had applied for the post of Crl.Appeal No. 2376-SB of 2004 11 Lambardar and in that case, he was pressurizing the appellant not to effect munadi in the village. When appellant failed to oblige him, then he became inimical towards the appellant. Mukhtiar Singh appeared as PW4 and stated that Gurnam Kaur had a dispute with her brothers-in-law. On 16.2.2001, Gurnam Kaur came and reported that appellant was demanding Rs.200/- for the issuance of copy of jamabandi of the disputed plot. After that, he along with Gurnam Kaur had gone to the office of Vigilance Department. In the office of Vigilance Department, writing work was done. Phenolphthalein powder was applied to the currency notes. Two official witnesses were joined. Raiding party had gone to the office of the appellant. Gurnam Kaur had gone to the office of the appellant but he stayed near the canal minor. Gurnam Kaur gave signal to the raiding party. Then raiding party had gone to the office of the appellant. DSP, Vigilance, gave introduction to the appellant and appellant had handed over Rs.200/-, which were in an envelope lying on his table. After that, there was hand wash of the witnesses and the appellant. After raid, they had gone to the office of Vigilance Bureau. Then Mohinder Singh was declared hostile on the request of learned PP for the State. Mukhtiar Singh was cross-examined by learned PP for the State. In cross-examination by learned PP, Mukhtiar Singh admitted that statement of Gurnam Kaur was recorded in his presence. Gurnam Kaur had handed over two currency notes to DSP and in his presence, demonstration was given as to how colour of solution was to change to light pink. He was joined as shadow witness. Solution of hand wash was transferred into a nip and nip was sealed. As per request of the DSP, appellant had handed over marked currency, which were lying on his Crl.Appeal No. 2376-SB of 2004 12 table in an envelope. Mukhtiar Singh admitted his signatures on all the documents prepared in the office of the appellant. Further stated that jamabandi prepared by the appellant was handed over to the DSP by Gurnam Kaur and the same was taken into possession. In examination-in- chief, Mukhtiar Singh stated that he had stayed near canal minor. Canal minor was at a distance of 2-2-1/2 km from the office of the appellant. If Mukhtiar Singh had stayed near canal minor, then he cannot state that Gurnam Kaur had given signal to the raiding party. If Mukhtiar Singh had not gone to the office of the appellant, then how he signed number of documents prepared in the office of the appellant. In cross-examination by learned defence counsel, Mukhtiar Singh stated that firstly, he along with Gurnam Kaur had gone to the office of the appellant to see whether appellant was present in his office or not. After that, they had gone to the office of DSP, Vigilance. Suggestion was given to Mukhtiar Singh that two currency notes each of the denomination of Rs.50/- and one note of the denomination of Rs.100/- were taken into police possession vide memo (Ex.PF). In corss-examination, Mukhtiar Singh stated that DSP did not shake hand with the appellant. DSP had asked Gurnam Kaur about the place where currency notes were lying. Then Gurnam Kaur pointed out to DSP that currency notes were lying in the envelope on the table and from the envelope, currency notes were taken into police possession. In a case under the Corruption Act against Nahar Singh, he is the complainant. In case, Mukhtiar Singh had not gone to the office of the appellant, then there was no idea to sign memos prepared by the IO in the office of the appellant. All this shows that intentionally to support the appellant, Mukhtiar Singh stated that he had stayed near canal minor and had not gone to the office of Crl.Appeal No. 2376-SB of 2004 13 the appellant. Only Gurnam Kaur had gone to the office of the appellant. Gurnam Kaur was 65 years' old widow and has two issues but both the children are abnormal. She stated that she had gone to the office of the appellant for the issuance of copy of jabamandi, then appellant had demanded illegal gratification. By making false excuse to arrange payment, she came back from the office of the appellant and after that, she along with Mukhtiar Singh had gone to the office of Vigilance Bureau. Two currency notes each of the denomination of Rs.100/- were presented before the DSP. She was directed to hand over only those currency notes to the appellant on demand. She along with Mukhtiar Singh had gone to the office of the appellant. Marked currency notes were kept in the envelope on the table of the appellant. Mukhtiar Singh gave agreed signal to the raiding party. Jamabandi was handed over to her by the appellant and that jamabandi was produced before the IO and was taken into police possession. As per evidence on the file, there was a plot measuring 15 biswas. Plot was joint. Allegation of Gurnam Kaur is that plot fell to the share of her husband. On some portion of the plot, house was constructed and on some portion, flour mill was installed. But without partition, 5 marlas were sold by her brothers- in-law, namely, Rattan Singh and Prem Singh. She wanted to file civil suit and for that purpose, jamabandi was required. Two sale deeds dated 9.10.2000 and 16.10.2000 were executed by Rattan Singh and Prem Singh. This fact is clear from the statement of PW5 Gurjeet Singh. No doubt, Gurnam Kaur had not filed any civil suit but if she had not gone to the office of the appellant for the issuance of jamabandi and she has not deposited fee with the appellant, then there was no idea to prepare copy of jamabandi. To issue copy of jamabandi, fee is required to Crl.Appeal No. 2376-SB of 2004 14 be deposited by the party. But in the present case, when appellant had demanded illegal gratification, then to arrange payment, complainant came back from the office of the appellant. After that, matter was reported to the Vigilance Bureau. In the meantime, appellant had prepared copy of jamabandi and that copy of jamabandi was handed over to the complainant. At the time of raid, complainant had produced copy of jamabandi (Ex.P4), which was taken into police possession. Only after demand and acceptance of illegal gratification, then the appellant was expected to hand over copy of jamabandi. Illegal gratification in the envelope was handed over to the appellant. Envelope was kept on the table. DW2 Harpal Singh stated that on that basis of sale deeds, mutations were entered on 28.11.2000. Mutations are entered by the appellant but statement of DW2 is not helpful to the appellant because allegation of the complainant is that without partition, two sale deeds were executed by Rattan Singh and Prem Singh qua plot measuring 5 biswas. Sale deeds were executed in the month of October, 2000, whereas mutations were entered in the month of November, 2000. After the execution of the sale deeds and entry