IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 827-SB of 1998 Date of Decision : May 17, 2010 Rajesh Kumar (dead) through his near relatives Smt.Sushma and others. ....Appellant Versus State of Punjab .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. S.K.Garg Narwana, Advocate Mr. P.S. Sidhu, Additional Advocate General, Punjab T.P.S. MANN, J. Vide judgment and order dated 29.9.1998 passed by Special Judge, Mansa, the appellant was convicted under Section 7 read with Section 13(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one month. According to the prosecution, complainant Darbara Singh inherited the estate of his widowed mother Mukhtiar Kaur, who died about 3½ years earlier to 12.6.1996, and he was the only legal representative of said Mukhtiar Kaur. He demanded copy of the mutation from appellant- Rajesh Kumar, Revenue Patwari, who told him Crl. Appeal No. 827-SB of 1998 -2- that the mutation of inheritance of the estate of Mukhtiar Kaur had not been sanctioned in his favour. The appellant demanded from the complainant the death certificate of his mother, which the complainant had given many days before 12.6.1996. As told by the appellant, the complainant obtained an order for entering mutation of inheritance from the Naib Tehsildar on 11.6.1996 and on 12.6.1996, he went to the appellant in the Patwarkhana Bareta located near the railway crossing, Jalbera. He handed over to him the application on which the Naib Tehsildar had passed an order for entering mutation in respect of the inheritance of the estate of Mukhtiar Kaur. Thereafter, the complainant asked the appellant as to what was still deficient in the papers, upon which the latter said that the deficiency would be made good in case he paid a sum of Rs.1,000/- to him. The appellant also told him that he should in the first instance brought Rs.1,000/- and, thereafter, he will get the mutation of inheritance of the estate of Mukhtiar Kaur entered and get it sanctioned. The complainant showed his inability to meet his illegal demand but the appellant stuck to his demand and told the complainant that he should bring a sum of Rs.1,000/- in the afternoon and, in the meantime, he was going outside. However, the complainant after making a false promise to the appellant regarding the payment of Rs.1,000/- as illegal gratification, went back. When the complainant reached in front of the railway station, Rajinder Singh met him to whom he narrated the entire story, Crl. Appeal No. 827-SB of 1998 -3- who asked the complainant that such a corrupt Patwari should be got entrapped through the Vigilance Department. Thereafter, the complainant alongwith Rajinder Singh met Sukhdev Singh Aulakh, DSP, Vigilance Bureau, Mansa and got recorded his statement Ex.PC. The complainant produced the currency notes worth Rs.1,000/- of the denomination of Rs.100/- each before the DSP, Vigilance Bureau, Mansa, who applied phenolphthalein powder to the currency notes and nothing was left with the complainant and handed over the same to him with a direction to hand over the same to the appellant on demand. Rajinder Singh was deputed as a shadow witness, who was directed to give a signal to the police party, after payment of the currency notes to the appellant by the complainant by placing his hands on his head. After making endorsement Ex.PC/1 on statement Ex.PC, the same was sent to the Police Station, Vigilance Bureau, Firozepur, on the basis of which, FIR Ex.PC/2 was registered by Inspector Des Raj. An attempt was made to send the information to the Senior Superintendent of Police, Vigilance Bureau but he could not be contacted. Thereafter, the raiding party was constituted. The hands of the members of the raiding party were got washed. After obtaining permission from the Senior Medical Officer of PHC, Khiala Kalan, Megh Raj, Pharmacist was joined as a witness, who was introduced with the members of the raiding party. Thereafter, the complainant and the shadow witness were Crl. Appeal No. 827-SB of 1998 -4- sent in advance to the Patwarkhana and after receiving signal from the shadow witness, the Patwarkhana was raided. DSP Sukhdev Singh Aulakh then disclosed his identity to the appellant and asked not to move. The solution of sodium carbonate was prepared in a clean glass. The hands of the appellant were dipped in the presence of the witnesses. The colour of that solution turned into light pink. The said dip was taken into possession vide memo. Ex.PD, which was attested by the complainant, the shadow witness and Megh Raj PWs. On search of the accused, tainted currency notes of Rs.1,000/- (ten notes of Rs.100/- each) were recovered from the right pocket of the shirt worn by him. The numbers of the currency notes tallied with the numbers mentioned in Ex.PB and taken into possession vide memo. Ex.PE attested by the aforesaid witnesses. On further search of the appellant, various articles as mentioned in Ex.PF were recovered which were also taken into possession. Another solution of sodium carbonate was prepared and the right pocket of the shirt of the appellant was dipped in that solution, the colour of which turned into light pink. The solution after putting in a nip and sealing the same, was taken into possession vide memo. Ex.PC, attested by the aforesaid witnesses. The application submitted by the complainant was taken into possession vide memo. Ex.PH. The DSP inspected the spot and prepared site plan Ex.PL. The statements of the witnesses were recorded. The appellant was arrested and upon completion of investigation, final report under Section 173 Cr.P.C. was submitted in the Court, where charge under Sections 7 read with Section Crl. Appeal No. 827-SB of 1998 -5- 13(2) of the Prevention of Corruption Act was framed against the appellant, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined seven witnesses. PW1 complainant Darbara Singh deposed on the lines of statement Ex.PC which was earlier made by him before DSP Sukhdev Singh Aulakh. PW2 Rajinder Singh, who was appointed as a shadow witness, supported the case of the prosecution. PW3 Sham Lal, Clerk, office of the Deputy Commissioner, Mansa proved the signatures of Ravinder Bansal, Naib Tehsildar on application Ex.PA moved by the complainant and endorsement Ex.PA/1 vide which the said application was marked to the halqa Patwari on 11.6.1996 while PW4 Surinder Pal, Sadar Kanungo proved sanction order Ex.PJ and PW5 Constable Des Raj proved his affidavit Ex.PK. PW6 Megh Raj, Pharmacist also supported the prosecution case. PW7 DSP Sukhdev Singh Aulakh, Vigilance Bureau, Punjab, Flying Squad-I, Chandigarh deposed about the various steps taken by him during the course of investigation. Crl. Appeal No. 827-SB of 1998 -6- The appellant when examined under Section 313 Cr.P.C., admitted his appointment as revenue Patwari on 7.7.1987 and posting in Circle Kulrian-I, vide orders Exs.PN, PO and PQ. He further stated that at the relevant time, village Mandair fell in his circle. He also admitted that Darbara Singh demanded from him a copy of the mutation of inheritance of the estate of his mother Mukhtiar Kaur. He admitted that he asked Darbara Singh to bring death certificate of his mother who gave copy thereof to him some days prior to 12.6.1996. He also admitted that he asked the complainant that he should first get sanction from the competent authority for entering mutation. He, however, denied that he ever demanded a sum of Rs.1,000/-, as illegal gratification for entering the mutation in favour of Darbara Singh. He also denied that he ever accepted the amount of Rs.1,000/- as illegal gratification from Darbara Singh on 12.6.1996 in Patwarkhana Bareta. He stated that he was falsely implicated in the present case. He denied the recovery of currency notes from the right pocket of the shirt worn by him at the relevant time. He, however, stated that the mother of the complainant was selling her land to strangers. The complainant suspected that it was the appellant who was persuading his mother to sell the land at low price. Similarly, the co-sharers of Darbara Singh were selling the specific Khasra Numbers from joint khata and he was suspecting that he was instrumental behind the sales, made by Chhota Singh and others. So much so, Darbara Singh filed a suit for injunction against Chhota Singh etc. for restraining them from selling the specific Crl. Appeal No. 827-SB of 1998 -7- numbers and he was himself selling the specific numbers. It was further stated by him that on account of this, the complainant nursed a grudge against him and got him falsely implicated in this case. The further case of the appellant was that Rajinder Singh PW was a truck driver and the nephew of the complainant. Said Rajinder Singh quarrelled with him at the time of taking a copy of jamabandi about a month prior to the date as he had refused not to show the names of other co-sharers in the landed property and this had led him to get less amount of loan. It was further stated by him that Rajinder Singh was a short tempered person and he even picked up quarrel in the presence of the police officials with one Tehal Singh, which resulted in initiation of the proceedings under Sections 107/151 Cr.P.C. against him. It was also stated by him that both Darbara Singh and Rajinder Singh conspired together and got him involved falsely. He stated that the raid was conducted at about 11.30 a.m. but was falsely shown at about 3.30 p.m. He also stated that the case was got registered against him after concocting the story. On the day of raid, he was busy in his work at about 11.30 a.m. Tarsem Lal, Patwari, Kulrian-II was also there. Two/three persons were also sitting in his office in connection with their work, when he was surprised by Darbara Singh complainant accompanied by two more persons of which he later on came to know that they were from the Vigilance Department. He further stated that Darbara Singh complainant put the application alongwith Crl. Appeal No. 827-SB of 1998 -8- death certificate on his table while those two persons caught hold of him and false recovery was shown in relation to the currency notes and death certificate. At the time of raid, 10-12 persons had collected outside his room but none was joined in the investigation. The investigation was stated to be one sided and tainted. The trial Court believed the prosecution version and convicted and sentenced the appellant, as mentioned above. I had heard learned counsel for the parties and perused the evidence with their able assistance. Learned counsel for the appellant had submitted that complainant Darbara Singh, who was the star witness of the prosecution being the trap witness, did not support the case of the prosecution when he appeared before the trial Court as PW1 and was declared hostile. Therefore, the very foundation of the prosecution got dislodged. It is true that during his examination-in-chief, PW1 Darbara Singh was declared hostile on a request made by the Public Prosecutor when he did not state anything about the proceedings which took place subsequent to the arrival of DSP Sukhdev Singh Aulakh in the room where the appellant was found present. However, before that he had categorically deposed that the appellant was putting him off by not supplying copy of the mutation regarding the inheritance of his deceased mother Mukhtiar Kaur. He deposed that the appellant had demanded a Crl. Appeal No. 827-SB of 1998 -9- sum of Rs.1,000/- from him as illegal gratification in order to supply the copy of the mutation and he had, therefore, informed Rajinder Singh, who had advised him to get the appellant entrapped. Later on, both of them went to the Vigilance Bureau where they met DSP Sukhdev Singh Aulakh, who set up a team for conducting a raid once the complainant paid a sum of Rs.1,000/- as illegal gratification to the appellant. He also testified that he had handed over the tainted currency notes to the appellant who had put the same in his right pocket and at that time Rajinder Singh had placed his hands on his head whereafter the official from the Vigilance Department reached there. As PW1 Darbara Singh could not state as to what happened thereafter, a request was made by the learned Public Prosecutor that he be allowed to cross-examine him as he was suppressing truth, which request was allowed. During his cross-examination by the learned Public Prosecutor, PW1 Darbara Singh turned around and supported the case of the prosecution in its entirety. He was, thereafter, cross-examined by the counsel for the appellant but his testimony could not be shattered. He denied that he got entrapped the appellant at the instance of Rajinder Singh, who was his nephew. He also denied that the appellant had told him to bring the Lambardar. He further denied that he was deposing falsely or that he had put the currency notes in the application and placed the same on the table. When PW1 Darbara Singh had fully supported the prosecution case, no benefit can be extended to the appellant on the ground that initially he had not supported the prosecution version and was got declared hostile Crl. Appeal No. 827-SB of 1998 -10- by the Public Prosecutor. Learned counsel for the appellant had submitted that the prosecution examined only related witnesses in support of the demand and acceptance of the illegal gratification by the appellant. No independent corroboration was sought despite the fact that at the time of the raid, a number of persons were present in the office. It is true that PW2 Rajinder Singh, who is the shadow witness, is the nephew of PW1 Darbara Singh, the trap witness, but that by itself is not sufficient to hold that his testimony cannot be believed qua the demand and acceptance of the illegal gratification. During his cross-examination, PW2 Rajinder Singh denied having taken any loan from the bank although he had obtained copy of Jamabandi from the appellant about a month prior to the raid. He also termed it as incorrect that he had quarrelled with the appellant while obtaining copy of the Jamabandi on the ground that he wanted the appellant not to mention the names of other share-holders so that he could obtain loan. As regards the presence of some persons in the Patwarkhana where the appellant was nabbed, PW2 Rajinder Singh deposed that those persons did not enter the Patwarkhana. Similarly, DSP Sukhdev Singh Aulakh testified that when he was conducting the proceedings in the Patwarkhana, some persons were standing outside and he had heard their voices. When the people from the public had not entered the Patwarkhana and had not witnessed the demand and acceptance of the illegal gratification by the Crl. Appeal No. 827-SB of 1998 -11- appellant, their non-joining with the proceedings cannot be termed to be fatal to the prosecution case. The defence tried to attack the prosecution case on the ground of DSP Sukhdev Singh Aulakh not offering himself for search to the appellant before conducting the search. Attention of the Court in this regard was drawn to the testimony of PW1 Darbara Singh when he stated that when DSP Sukhdev Singh Aulakh reached the spot, the arms of the appellant were tied and, thereafter, notes recovered from the pocket. However, on perusal of the testimony of PW7 DSP Sukhdev Singh Aulakh, it is made out that he was not at all questioned on behalf of the appellant regarding offering himself for search before conducting the search of the appellant. The cross-examination of PW7 runs into two and a half pages and no question, what to talk of suggestion, was put to him about offering his own search to the appellant before conducting his search. At the same time, it was the defence which elicited from PW7 DSP Sukhdev Singh Aulakh that he had got the hands of every member of the raiding party washed, expect the complainant and the shadow witnesses and police proceedings Ex.PC/1 in that regard were recorded. Even the suggestion put to PW1 Darbara Singh during his cross-examination was not on the issue of DSP Sukhdev Singh Aulakh offering his own search before conducting the search of the appellant. He had simply stated that when DSP Crl. Appeal No. 827-SB of 1998 -12- Sukhdev Singh Aulakh reached the spot, the arms of the appellant were tied and, thereafter, notes recovered from his pocket. Even if it is taken that DSP Sukhdev Singh Aulakh did not offer himself to be searched by the appellant before conducting the search of the appellant, that by itself will not demolish the prosecution case as there is consistent and categorical evidence led by the prosecution by way of the testimonies of PW1 Darbara Singh, PW2 Rajinder Singh and PW6 Megh Raj, Pharmacist in whose presence recovery of the tainted notes was effected from the appellant. None of the aforementioned witnesses are shown to be having enmity to depose falsely against the appellant. Rather, it was the appellant who had been putting off PW1 Darbara Singh on one pretext or the other by not carrying out mutation regarding the inheritance of the estate of Mukhtiar Kaur, the widowed mother of PW1 Darbara Singh and when the complainant stressed upon the appellant to supply him the copy of the inheritance, the appellant demanded a sum of Rs.1,000/- from the complainant as illegal gratification. Subsequently, a raiding party was constituted so as to apprehend the appellant. Pursuant thereto PW1 Darbara Singh alongwith PW2 Rajinder Singh, went to the appellant, who was sitting in the Patwarkhana and upon demand made by the appellant, PW1 Darbara Singh handed over the tainted currency notes which he kept in the pocket of his shirt. Once pre-designated signal was given by PW2 Rajinder Singh, the raiding party which included PW6 Megh Raj, Pharmacist reached the spot and the tainted currency notes were Crl. Appeal No. 827-SB of 1998 -13- recovered from the appellant. His hands were, thereafter, dipped in the solution of sodium carbonate which turned pink. The application submitted by PW1 Darbara Singh for obtaining copy of the mutation was also recovered from the appellant. An attempt was also made by the defence to point out certain contradictions and discrepancies in the statements of the prosecution witnesses. However, such like discrepancies and contradictions are bound to appear in the testimonies of witnesses on account of lapse of time. Even, otherwise the discrepancies pointed out are minor in nature and do not go to the root of the case. Half hearted attempt was made by the defence to dislodge the prosecution case on the ground that the FIR was not recorded at the time given therein but was recorded later on. Reference was made in this regard to the testimonies of PW6 Megh Raj, Pharmacist when he deposed in his cross-examination that he had joined raiding party at 10.45 a.m., whereas statement Ex.PC made by complainant Darbara Singh was recorded at 2.30 p.m. in Vigilance Bureau, Ferozepur. Argument of the defence was that only after the statement of complainant Darbara Singh was recorded that the raiding party was constituted. However, on perusal of the statement Ex.PC and endorsement Ex.PC/1 made by DSP Sukhdev Singh Aulakh, it is made out that after complainant Darbara Singh alongwih his nephew Rajinder Singh reached the Vigilance Bureau, Mansa, his statement Ex.PC was Crl. Appeal No. 827-SB of 1998 -14- recorded and a raiding party was constituted and necessary demonstration given to all. Subsequently, endorsement Ex.PC/1 was made by DSP Sukhdev Singh Aulakh on 12.6.1996 at 2.30 p.m. on the staement Ex. PC while he was at the office of Vigilance Bureau at Mansa. The statement Ex.PC alongwith endorsement Ex.PC/1 was, thereafter, sent to Police Station, Vigilance Bureau, Ferozepur Range, Ferozepur where FIR Ex.PC/2 was lodged on 12.6.1996 at 7.50 p.m. Therefore, it cannot be said that PW6 Megh Raj, Pharmacist could not have been joined at 10.45 a.m. He had also stated that he alongwith raiding party reached Bareta at 3.20 p.m. and it was at 3.27 p.m. that the signal was received. Therefore, it cannot be said that the FIR was not recorded at the time given therein but was recorded later on. Last submission made by counsel for the appellant was regarding the plea taken by the appellant during his examination under Section 313 Cr.P.C. According to the appellant, complainant Darbara Singh suspected that it was the appellant who was instrumental in allowing his co-sharers to sell the land out of the joint khata and that appellant had filed a suit for permanent injunction against Chhota Singh and Mohinder Singh. However, this Court is of the considered view that any sale from the joint khata could give cause of grievance to the complainant against the co-owners but that would not have prompted him to come up with a false case against the appellant. It was finally submitted that the sentence of imprisonment Crl. Appeal No. 827-SB of 1998 -15- awarded to the appellant was highly excessive. However, after taking into consideration the facts and circumstances of the case, the Court is of the view that the sentence of imprisonment imposed is commensurate with the magnitude of the crime. In view of the above, no fault can be found with the judgment passed by the trial Court whereby the appellant stood convicted and sentenced. The appeal is without any merit and, therefore, dismissed. ( T.P.S. MANN ) May 17, 2010 JUDGE satish