Criminal Appeal No. 864-SB of 2003 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 864-SB of 2003 Date of decision : September 14, 2011 Iqbal Singh ....Appellant versus State of Haryana ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Kapil Aggarwal, Advocate for appellant Iqbal Singh Mr. Sunil Chadha, Advocate for appellant Nar Singh Mr. Anil Kumar, Deputy Advocate General, Haryana L.N. Mittal, J. (Oral) By this common judgment, I am disposing of two criminal appeals i.e. Criminal Appeal No. 864-SB of 2003 preferred by convict Iqbal Singh and Criminal Appeal No. 868-SB of 2003 preferred by convict Nar Singh because both these appeals have arisen out of common judgment and order dated 28.4.2003 passed by learned Special Judge, Jagadhri, thereby Criminal Appeal No. 864-SB of 2003 -2- convicting both the appellants under section 7 of the Prevention of Corruption Act, 1988 (in short, the Act) and sentencing each of them to undergo rigorous imprisonment for two years whereas appellants' co- accused Rameshwar Dass stands acquitted. Prosecution case in brief is as under:- Complainant Shafi Mohammad had purchased one acre land from Gurnam Singh. Sale deed thereof was executed on 8.4.1997 in favour of complainant's sons. Accused Iqbal Singh was posted as Naib Tehsildar/Joint Sub Registrar, Sadhaura whereas accused Nar Singh was posted as Reader to Iqbal Singh, Naib Tehsildar. Co-accused Rameshwar Dass, since acquitted, was working as private typist in Tehsil Complex, Sadhaura. After execution of the sale deed, complainant gave the same to Nar Singh accused for registration. Nar Singh put up the sale deed before Iqbal Singh for registration. Iqbal Singh demanded Rs 1800/- as illegal gratification from the complainant for registration of the sale deed. However, deal was struck at Rs 1500/-. The complainant promised to pay the same on the next day. However, on 8.4.1997 itself, complainant gave application Ex. PD to Deputy Commissioner, Yamuna Nagar who made endorsement thereon requiring Additional Deputy Commissioner (ADC) to conduct raid and DSP Jagadhri to accompany him. However, DSP was not available on that day. Accordingly, the complainant was asked to come on next day. On 9.4.1997, the complainant went to the office of Deputy Criminal Appeal No. 864-SB of 2003 -3- Commissioner who called ADC Lal Singh and Deputy Superintendent of Police, Jagadhri Rajinder Singh to the office. Raiding party was constituted. Other police officials as well as Ashok Kumar, Sultan Singh and Mohammad Islam accompanying the complainant were also joined in the raiding party. They went to Sadhaura and stopped near a carpet factory. Complainant gave 15 currency notes of Rs 100/- denomination to the DSP. Statement Ex. PC of the complainant was recorded. DSP made endorsement thereon and sent it to Police Station, Sadhaura where on its basis, FIR was registered. The DSP and the ADC affixed their initials on the currency notes. Phenolphthalein powder was applied to the currency notes which were then handed over to the complainant. Numbers of the currency notes were recorded in memo. Constable Surinder Singh in civil dress was made shadow witness. Necessary instructions were given to the complainant and the shadow witness. Both of them were sent to the office of Naib Tehsildar. However, Naib Tehsildar Iqbal Singh was not found present. His Reader Nar Singh accused was present. He asked the complainant if he had brought the bribe money. The complainant answered in the affirmative. On demand of Nar Singh accused, complainant Shafi Mohammad handed over the tainted currency notes to Nar Singh accused for being passed over to Iqbal Singh accused. Necessary signal was flashed by the complainant to the shadow witness who passed on the same to the remaining raiding party. In the meantime, Nar Singh accused gave the Criminal Appeal No. 864-SB of 2003 -4- tainted currency notes to accused Rameshwar Dass. The raiding party came to the spot. Accused Rameshwar Dass was also called. Tainted currency notes were recovered from the pocket of pants of accused Rameshwar Dass. Hand wash of accused Nar Singh, accused Rameshwar Dass and complainant Shafi Mohammad in separate solutions of sodium carbonate turned the colour thereof to pink. The said solutions were sealed in nips and along with tainted currency notes, shirt of accused Nar Singh and pants of accused Rameshwar Dass were seized by the police. Photo copy of the sale deed was seized from the complainant. Rough site plan of the place of occurrence was prepared. Statements of witnesses were recorded. Accused Nar Singh and Rameshwar Dass were arrested. Accused Iqbal Singh was arrested on 10.4.1997. Scaled site plan was got prepared. Report of Forensic Science Laboratory depicted that phenolphthalein was detected in the tainted currency notes whereas phenolphthalein and sodium carbonate were detected in the three hand wash solutions. Sanction orders for prosecution of accused Iqbal Singh and accused Nar Singh were 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 all the three accused under sections 7 and 13 of the Act and section 120-B IPC. Initially Rameshwar Dass accused was discharged by learned Special Judge vide order dated 11.6.1998 whereas separate charge under Criminal Appeal No. 864-SB of 2003 -5- section 7 of the Act was framed against accused Iqbal Singh and accused Nar Singh. They pleaded not guilty to the charge and claimed trial. This Court vide order dated 12.7.1999 in Criminal Revision No. 11 of 1999 set aside the order dated 11.6.1998 of the trial Judge regarding discharge of accused Rameshwar Dass and directed the trial court to frame charge against Rameshwar Dass also. Accordingly, charge for abetment of offence under 7 of the Act punishable under section 12 of the Act was framed against accused Rameshwar Dass vide order dated 13.9.1999. He also pleaded not guilty to the charge and claimed trial. In support of its case, the prosecution examined 11 witnesses. Surinder Bakshi, PW1 proved sanction order for prosecution of accused Nar Singh. Neeru Bakshi, PW2 proved posting orders of accused Nar Singh as Reader and accused Iqbal Singh as Naib Tehsildar at Sadhaura on the relevant dates. Constable Mulkh Raj, PW3 stated that he prepared scaled site plan of the place of occurrence. ASI Raj Pal, PW4 stated that he recorded formal FIR in this case. Complainant Shafi Mohammad, PW5; shadow witness Surinder Singh Constable, PW6; Investigating Officer Rajinder Singh DSP, PW7 and Lal Singh, the then Additional Deputy Commissioner, PW10 have Criminal Appeal No. 864-SB of 2003 -6- broadly stated according to the prosecution version. HC Joginder Singh, PW8 and Constable Kehar Singh PW9 tendered their affidavits in evidence being formal witnesses. Gian Chand , PW11 proved the sanction order for prosecution of accused Iqbal Singh. PWs Ashok Kumar, Sultan Singh and Mohammad Islam were given up as one over by the accused. Report of Forensic Science Laboratory was tendered in evidence. The accused in their examination under section 313 Cr.P.C. denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. However, Iqbal Singh and Nar Singh admitted their posting as Naib Tehsildar and Reader respectively on the relevant dates. Accused Iqbal Singh alleged that after the complainant presented sale deed on 8.4.1997 for registration, he (accused Iqbal Singh) asked his Reader to complete the formalities. The Reader after completing formalities placed the sale deed before him and he affixed his signatures thereon as Sub Registrar after making inquiries from the complainant and the vendor. The sale deed was duly registered on that very day and receipt regarding official fee charges was given to the complainant and his signatures were obtained on the back of the counter- foil. After registration, the sale deed was also handed over to the Criminal Appeal No. 864-SB of 2003 -7- complainant on the same day. Accused Rameshwar Dass alleged that he was being forced by the police to become prosecution witness in the case, but since nothing had happened in his presence, he refused to become prosecution witness and thereupon he was falsely implicated in this case. In defence, accused examined two witnesses. Niranjan Singh (Reader to Naib Tehsildar on the date of his examination as witness) stated that sale deed executed by Gurnam Singh in favour of complainant's sons was registered on 8.4.1997. Sub Registrar Iqbal Singh had signed the same on the same day. The vendee Shafi Mohammad complainant had paid the registration fee on the same day after registration of the sale deed vide receipt dated 8.4.1997. The vendee also put his thumb impression on the counter-foil of the receipt. Original sale deed was also handed over to him on 8.4.1997. Lajpat Rai, DW2 stated that he was present at the seat of accused Rameshwar Dass typist. At about 11/11.30 AM, a person took Rameshwar Dass accused with him telling that he was being called by the Naib Tehsildar. Again said the person told Rameshwar accused that he was being called by the Officer. Lajpat Rai assuming that Naib Tehsildar had arrived, also followed Rameshwar Dass. However, on reaching the office, it was found that Naib Tehsildar had not arrived. Some policemen were present there. They asked accused Rameshwar Dass to become witness whereas this witness Lajpat Rai was asked to go outside. Nothing was Criminal Appeal No. 864-SB of 2003 -8- recovered from the possession of accused Rameshwar Dass in the presence of this witness. Learned Special Judge vide impugned judgment and order dated 28.4.2003 convicted and sentenced the accused Nar Singh and Iqbal Singh as already noticed hereinbefore whereas accused Rameshwar Dass was acquitted. Feeling aggrieved, convicts Nar Singh and Iqbal Singh have preferred the instant criminal appeals. I have heard learned counsel for the parties and perused the case files with their assistance. Learned counsel for appellant Nar Singh vehemently contended that statements of four material witnesses i.e. Shafi Mohammad complainant, PW5, shadow witness Constable Surinder Singh, PW6, Investigating Officer Rajinder Singh DSP, PW7 and Lal Singh ADC, PW10 are contradictory in many respects. It was submitted that according to the complainant, on 8.4.1997, he was asked by the Deputy Commissioner to come on the next day as no officer was available on that day, but Lal Singh ADC, PW10 stated that on 8.4.1997, the complainant was not having money with him and therefore, he was asked to come on the next day. The complainant also made improvement by stating that Naib Tehsildar had told him that in his absence, money be handed over to his Reader Nar Singh accused. The complainant also did not name the persons (Ashok etc.) accompanying him. Contradictions in the statements of complainant and Criminal Appeal No. 864-SB of 2003 -9- shadow witness regarding demand made by Nar Singh were also pointed out. It was also pleaded that there is also contradiction as to who gave the signal to whom. There is also contradiction as to who told the raiding party that Nar Singh had handed over the tainted currency notes to Rameshwar Dass accused. There is also contradiction regarding arrival of Rameshwar Dass to the spot. Lal Singh PW10 also stated that shirt of accused Nar Singh and pants of accused Rameshwar Dass were also washed in solutions of sodium carbonate, but it is not the prosecution case nor stated by other witnesses. Rajinder Singh DSP also stated that he wanted to conduct the raid after arrival of Naib Tehsildar, but ADC insisted on conducting the raid immediately. Lal Singh also stated that after some time, the complainant had returned to the remaining members of the raiding party and told that Naib Tehsildar was not present and his Reader was demanding the bribe money. The officers asked the complainant to go back and give the tainted currency notes to the Reader and the complainant did accordingly. It was also pointed out that the shadow witness was not visible from the place where the remaining raiding party was present as stated by Rajinder Singh DSP, PW7. Some other contradictions were also pointed out. Learned counsel for Nar Singh appellant also contended that the allegation of demand of bribe is against Iqbal Singh accused and not against Nar Singh accused. It was also submitted that recovery of the tainted currency notes was also allegedly effected from Rameshwar Dass Criminal Appeal No. 864-SB of 2003 -10- accused and not from Nar Singh accused. It was accordingly contended that essential ingredients of offence under section 7 of the Act i.e. demand, acceptance and recovery of the bribe money are not established qua Nar Singh accused. Reliance in support of this contention has been placed on following judgments:- 1. Mathura Dass Gupta vs. State of Haryana, 2006(1) R.C.R. (Criminal) 566; 2. Amrik Singh vs. State of Punjab, 2005(4) R.C.R. (Criminal) 310 ; 3. Banarsi Dass vs. State of Haryana, 2010(2) R.C.R. (Criminal) 553; 4. A.Subair vs. State of Kerala, 2009(3) R.C.R. (Criminal) 370; 5. C.M.Girish Babu vs. CBI, Cochin, High Court of Kerala, 2009(2) R.C.R. (Criminal) 134; 6. Gurmeet Singh vs. State of Punjab, 2010 (1) R.C.R. (Criminal) 324; 7. Prem Singh Yadav vs. Central Bureau of Investigation, 2011 (178) DLT 529. It was also contended on behalf of Nar Singh accused that it was duty of Naib Tehsildar/Sub Registrar Iqbal Singh to register the sale deed and therefore, there was no occasion for Nar Singh accused to demand Criminal Appeal No. 864-SB of 2003 -11- bribe. It was also pointed out that the sale deed stood registered on 8.4.1997 itself and even handed over to the complainant on the same day. For this reason also, there was no occasion for the complainant to pay the bribe money on 9.4.1997. In support of this contention, reference has been made to judgments in Amrik Singh vs. State of Punjab, 2005(4) R.C.R. (Criminal) 310 ; Ganga Kumar Srivastava vs. The State of Bihar, 2005 (6) JT356 and Mehar Chand vs. State of Haryana, 2004(4) R.C.R. (Criminal) 655. Counsel for Nar Singh accused also argued that Ashok Kumar, Sultan Singh and Mohammad Islam independent witnesses were accompanying the complainant on 9.4.1997 but none of them was made shadow witness and on the other hand, Constable Surinder Singh who was gunman of DSP Rajinder Singh was made shadow witness and therefore, the prosecution case is doubtful. In this regard reference has been made to judgments in Amrik Singh vs. State of Punjab, 2005(4) R.C.R. (Criminal) 310 ; Ganga Kumar Srivastava vs. The State of Bihar, 2005 (6) JT356 ; Anup Singh vs. State of Punjab, Criminal Appeal No. 563- SB of 1999, decided on 16.7.2010; Kuldip Rai vs. State of Punjab, 2002 (2) R.C.R. (Criminal) 781 and Dr. Ram Avtar Gupta vs. State of Haryana, 1991(2) R.C.R. (Criminal) 510. Counsel for appellant Nar Singh also canvassed that if money was meant for the said accused, he would not have given the same to co- Criminal Appeal No. 864-SB of 2003 -12- accused Rameshwar Dass. On the other hand, even as per charge sheet, no demand and recovery has been attributed to accused Nar Singh. It was also contended that shirt of accused Nar Singh although seized by the police was not subjected to test for presence of phenolphthalein to depict that Nar Singh had allegedly put the tainted currency notes in the pocket of his shirt before handing over the same to co-accused Rameshwar Dass. It was also argued that there is mention of conspiracy of accused Nar Singh with co- accused Iqbal Singh in the sanction order although no such conspiracy is proved. It was lastly contended that conviction in corruption case not only renders the accused liable to sentence of imprisonment but also snatches his livelihood on account loss of job and he also suffers ignominy and starvation and therefore, there should be fool proof evidence for conviction in corruption case. Reliance in support of this contention has been placed on judgments in Ganga Kumar Srivastava vs. The State of Bihar, 2005 (6) JT356 and Kuldip Rai vs. State of Punjab, 2002(2) R.C.R. (Criminal) 781 . Learned counsel for appellant Iqbal Singh, besides adopting the arguments addresses by counsel for appellant Nar Singh, also contended that neither tainted currency notes were given to appellant Iqbal Singh nor recovery thereof was effected from him nor he was present at the time of raid nor he made any demand at the time of raid and therefore, charge against Iqbal Singh is not proved. It was also pointed out that accused Criminal Appeal No. 864-SB of 2003 -13- Iqbal Singh was not present in his office and he had already signed the sale deed as Sub Registrar and therefore, there was no occasion for payment of any bribe to him for registration of the sale deed because the sale deed already stood registered. Reference in this regard was also made to testimony of complainant who stated in cross-examination that sale deed was handed over to him on 9.4.1997 in the evening and it was already signed by the Tehsildar. It was also argued that Iqbal Singh, Naib Tehsildar would have remained present in office on 9.4.1997 to receive the bribe money if he had made demand thereof from the complainant on the preceding day, but this accused was not present in his office on 9.4.1997. It was submitted that necessary ingredients of the offence under section 7 of the Act are not made out against accused Iqbal Singh. Reliance in support of this contention has been placed on two judgments namely Gurmej Singh vs. The State of Punjab, 1987(2) Recent Criminal Reports 296 and Mohinder Singh vs. State of Punjab, 1994(2) Recent Criminal Reports 63. On the other hand, learned State counsel contended that all the prosecution witnesses have supported prosecution case. They had no reason to implicate the accused in false case. It was also pointed out that Lal Singh PW10 is an IAS officer whereas Rajinder Singh DSP PW6 is also gazetted officer. It was also argued that application Ex. PD had been given by the complainant to Deputy Commissioner on 8.4.1997 itself mentioning Criminal Appeal No. 864-SB of 2003 -14- the demand of Rs 1500/- as illegal gratification by Naib Tehsildar i.e. by accused Iqbal Singh and the testimony of the complainant coupled with the said application proves the said demand. It was pointed out that statements of prosecution witnesses are sufficient to prove guilt of both the appellants beyond reasonable doubt. I have carefully considered the rival contentions. In so far as contradictions in the statements of material prosecution witnesses are concerned, the same do not go to the root or core of the case so as to impeach the veracity of these witnesses. On the other hand, some contradictions are bound to occur even in the statements of most truthful witnesses on account of different perceptions, power of observation and memory and also with passage of time. In the instant case, after the prosecution witnesses were examined initially against accused Nar Singh and Iqbal Singh, they were again examined/cross-examined after charge was also framed against accused Rameshwar Dass. Lastly statement of complainant Shafi Mohammad PW5 was recorded on 12.11.2002 i.e. more than 5½ years after the occurrence. Similar is the position of shadow witnesses Surinder Singh Constable PW6 and IO Rajinder Singh DSP PW7. Lal Singh PW10 was examined on 13.8.2001 i.e. more than four years after the occurrence. On account of lapse of such long period, contradictions in the statements of aforesaid material witnesses of the prosecution pale into insignificance. The witnesses could not be expected to give vediographic or Criminal Appeal No. 864-SB of 2003 -15- photographic version of the occurrence nor they could be expected to make verbatim parrot like identical statements. On the other hand, some minor contradictions in their statements are hallmark and guarantee of the truthfulness of their statements. Rather statements without any contradiction would be liable to suspicion being tutored ones. It is significant to notice that all the prosecution witnesses have supported the prosecution case. They were subjected to very lengthy cross- examination, but broadly they have stood the test of cross-examination. They had no motive to depose falsely against the accused or to implicate them in false case. Lal Singh PW10 is an IAS officer whereas Rajinder Singh PW7 is also a gazetted officer. Their statements cannot be discarded without any reason . Even statements of complainant Shafi Mohammad PW5 and shadow witness Surinder Singh PW6 cannot be doubted because they also had no motive or illwill against the accused. On the other hand, the complainant gave application Ex. PD to the Deputy Commissioner on 8.4.1997 and on the same day, Deputy Commissioner made her endorsement on it. This application is very brief stating about demand of bribe of money by Naib Tehsildar i.e. by Iqbal Singh. The other two accused were not even named in it. Detailed statement Ex. PC of the complainant was recorded on 9.4.1997 by Rajinder Singh DSP and thereafter raid was conducted. Whatever happened during the raid has been duly and truthfully stated by the prosecution witnesses. If the accused were to be Criminal Appeal No. 864-SB of 2003 -16- falsely implicated, then presence of Iqbal Singh accused could also be shown falsely at the spot at the time of raid. In that event, Nar Singh accused would not have come into picture. However, since Nar Singh made demand and accepted the bribe money at the time of raid, he was arrayed as accused. Statements of prosecution witnesses read as a whole and sequence of events taken into consideration as unfolded in their statements are sufficient to bring home the charge against both the appellants beyond reasonable doubt. All ingredients of the offence under section 7 of the Act are proved against both the appellants. The statements of the prosecution witnesses have to be read as a whole and not in isolated parts. The sequence of the events as proved by the prosecution evidence depicts that initially the demand of bribe money was made by accused Iqbal Singh on 8.4.1997 whereas at the time of raid on 9.4.1997, accused Iqbal Singh himself was not present in the office and on his behalf, accused Nar Singh being his Reader and public servant made the demand and accepted the bribe money. Recovery of tainted currency notes from co-accused Rameshwar Dass since acquitted would not absolve accused Nar Singh of his guilt because it was he who had demanded and accepted the tainted currency notes. His hand-wash also proves that he had accepted tainted currency notes as also stated by the complainant and the shadow witness. Omission to wash the pocket of his shirt would not be fatal to the prosecution case when there is direct evidence of the complainant and the Criminal Appeal No. 864-SB of 2003 -17- shadow witness and also there is evidence of hand wash of accused Nar Singh. Registration of the sale deed on 8.4.1997 by Iqbal Singh would also not accrue any benefit to the appellants because the sale deed was not handed over to the complainant on 8.4.1997. If the sale deed had been handed over to him on that day, there was no occasion for him to make application Ex. PD to the Deputy Commissioner on 8.4.1997 and then to make statement Ex. PC to the DSP on 9.4.1997 and to organize the raid. Statement of Niranjan Singh DW1 that sale deed was handed over to complainant on 8.4.1997 itself cannot be accepted at face value because he was not even posted in the office of Naib Tehsildar, Sadhaura on 8.4.1997. On the other hand, thumb impression on the back of the counter-foil of the receipt was obtained in token of giving receipt of registration fee to the complainant and not in token of giving registered sale deed to the complainant. The complainant has rather stated that the sale deed was given to him on 9.4.1997 in the evening. Consequently, even if accused Iqbal Singh had completed the formality of registration of the sale deed on