CRA No.994-SB of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No .994-SB of 2003 Date of decision: 08.08.2011 Sunder Lal ......Appellant Vs. State of Haryana ...Respondent CORAM:- HON'BLE MR. JUSTICE L.N. MITTAL. Present: Mr. N.K. Sanghi , Advocate with Mr. Aditya Sanghi. Advocate Mr. Aditya Singla, Advocate Mr. Lokesh Sharma, Advocate Mr. Ashish, Advocate for the appellant. Mr. Sameer Singh, Asst. Advocate General, Haryana. **** L.N. MITTAL, J. (Oral). Sunder Lal, appellant and Rakesh Kumar were tried together for the offence under Section 7 of the Prevention of Corruption Act, 1988 (in short 'Act'). Learned Special Judge, Hisar vide judgment dated 03.05.2003, convicted Sunder Lal under Section 7 of the Act and acquitted co-accused Rakesh Kumar giving benefit of doubt. After hearing the parties on quantum of sentence, learned Special Judge vide order dated 06.05.2003 sentenced the convict Sunder Lal to undergo rigorous imprisonment for 8 months and to pay fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for 1 month. Feeling aggrieved, convict Sunder Lal has preferred the instant criminal appeal. Complaint Exhibit P-A accompanied by affidavit Exhibit P-B was submitted by Hardei complainant to Deputy Commissioner, CRA No.994-SB of 2003 -2- Hissar. It was mentioned in the complaint that Lichhmi, sister of complainant's husband Balwan, had executed will in favour of complainant's sons. The complainant approached appellant-Sunder Lal, who was Patwari Halqa, for entering mutation on the basis of will, but the appellant demanded Rs. 5000/- as illegal gratification for doing the needful. The appellant remained adamant on the demand inspite of complainant's entreaties. The complainant under compulsion paid the amount of Rs.5000/- as illegal gratification to the appellant in the presence of Bhoop Singh, Numberdar. Thereafter, the appellant entered the mutation on 13.11.1995. The said mutation was also verified by Girdawar Halqa on 23.11.1995. However, Naib Tehsildar Rakesh Kumar accused also demanded Rs. 15,000/- as bribe for sanctioning mutation, in the presence of Mangat, Patwari. The complainant being unable to meet the said demand made the aforesaid complaint. On the basis of aforesaid complaint, Smt. Dipti Uma Shankar, IAS, the then SDM, Hisar conducted preliminary enquiry and gave report Ex. P-J holding the allegation against the appellant as proved and holding Rakesh Kumar, Naib Tehsildar to be guilty of only delaying the reference of mutation to Assistant Collector Ist grade, although, holding the allegation of demand of 15,000/- by Rakesh Kumar to be not proved. On the basis of aforesaid complaint made by the complainant, FIR was registered and investigated. Statements of witnesses were recorded. Both the accused were arrested. Sanction orders for prosecution of both the accused were obtained. On completion of investigation, police presented report under Section 173 of the Code of Criminal Procedure (for short, "Cr.P.C.") for prosecution of both the accused under Sections 7 and 13 of the Act. Charge under Section 7 of the Act was framed against both the accused, who pleaded not guilty and claimed trial. CRA No.994-SB of 2003 -3- To prove its case, the prosecution examined fifteen witnesses. Complainant-Hardei, PW-1 broadly stated according to the complaint allegations. Mangat, Patwari PW-2 stated that Naib Tehsildar i.e. Rakesh Kumar accused never demanded illegal gratification of Rs. 15,000/- or any other thing from the complainant for sanctioning mutation. The witness was declared hostile and was cross-examined by the Public Prosecutor, but the witness denied the prosecution version. Bhoop Singh, Numberdar PW-3 has also stated that in his presence, the complainant never gave Rs. 5000/- to accused Sunder Lal. This witness was also cross-examined by learned Public Prosecutor but the witness denied the prosecution version. Mahabir Singh, Ahlmad PW-4 brought record of the mutation in question and stated about the proceedings thereof before Naib Tehsildar, Rakesh Kumar. Satbir Singh, Assistant, Commissioner Office, Hissar PW-5 proved posting order Ex.PG of Rakesh Kumar posted as Naib Tehsildar (Revenue), Barwala. Balbir Singh PW-6 (retired SI) stated that he recorded formal FIR in this case. Prithi Singh, Kanungo PW-7 stated that he had verified the mutation in question on 23.11.1995. Narender Kumar, Patwari PW-8 stated that he gave copy of mutation in question (No.4115) alongwith other documents to the police. Surinder Kumar, Advocate PW-9 stated that he scribed the will in question at the instance of Smt. Lichhmi. Rajesh Kumar, Clerk PW-10 proved posting order of accused Sunder Lal, Patwari. CRA No.994-SB of 2003 -4- Hoshiara PW-11 son of the complainant has stated that disputed land and other land is being cultivated by his mother. He has also stated that he never visited accused Sunder Lal, Patwari. Smt. Dipti Uma Shankar PW-12 stated about the preliminary enquiry conducted by her and proved her report Ex.PJ. Daya Nand, retired DSP PW-13 stated about the investigation of the case as well as preparation of report under Section 173 Cr.P.C. P.C. Bidhan PW-14 was posted as Collector, Hisar at the relevant time.He proved sanction to prosecute Sunder Lal accused. Peeru Singh, Superintendent PW-15 proved sanction Ex.PL granted by Commissioner, Hissar for prosecution of Rakesh Kumar accused. Both the accused in their examination under Section 313 Cr.P.C. admitted their posting as Patwari and Naib Tehsildar respectively but broadly denied all other incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. They alleged that they have been falsely implicated in this case. In defence, the accused examined two witnesses. Ramesh Chander, Clerk DW-1 produced record of registered mortgage deed dated 02.03.1981 executed jointly by Balwan (complainant's husband) and Lichhmi. Yashpal Chand Jain, finger print expert DW-2 has stated that disputed thumb impressions of Lichhmi on the will in question do not tally with her thumb impression on the aforesaid mortgage deed. Learned Special Judge vide impugned judgment dated 03.05.2003 convicted accused Sunder Lal and acquitted the co-accused Rakesh Kumar and vide order dated 06.05.2003, awarded sentence to convict Sunder Lal, who feeling aggrieved has filed the instant criminal CRA No.994-SB of 2003 -5- appeal. I have heard learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellant raised various contentions to assail the impugned judgment of conviction, whereas learned State counsel contended that the statement of complainant-Hardei PW-1 is corroborated by testimony of Smt. Dipti Uma Shankar PW-12, who had conducted enquiry in the complaint made by the complainant, and therefore, accused Sunder Lal has been rightly convicted. Learned counsel for the appellant contended that no recovery of the bribe money allegedly paid to the appellant was effected and therefore, the prosecution case is doubtful. The contention can not be accepted because the bribe money had allegedly been paid before entry of mutation on 13.11.1995 whereas the FIR was registered on 07.04.1997 and therefore, after expiry of almost 1 year 5 months, the bribe money possibly could not be recovered from the appellant, even if it had been paid by the complainant. Consequently, this contention can not be accepted. Learned counsel for the appellant also contended that in report roznamacha Ex.PC/3 dated 13.11.1995, it is mentioned that complainant's son Hoshiar Singh produced the will of Lichhmi before the appellant and the presence of complainant at that time is not mentioned in the said report and therefore, the prosecution version is unacceptable. This contention is also devoid of merit. Firstly, this report was recorded by the appellant himself. Secondly, the bribe money had allegedly been paid before 13.11.1995 because it was after alleged payment of bribe money, the appellant entered the mutation on 13.11.1995 alongwith aforesaid report roznamacha. Consequently, even if the complainant's presence is not recorded in the report roznamacha, it has no bearing on the prosecution case. CRA No.994-SB of 2003 -6- Learned counsel for the appellant next contended that there has been long delay in lodging the FIR. There is considerable merit in the contention. Bribe money was allegedly paid sometime before 13.11.1995. Application Ex.P-A by complainant to Deputy Commissioner appears to have been moved on 22.03.1997 and it was forwarded to SDM for enquiry and report vide endorsement dated 25.03.1997. This application is undated accompanied by affidavit Ex.P-B dated 28.02.1997. Thus, the complainant remained silent for more than 1 year 3 months. This long delay stands completely un-explained. On the other hand, it has come in evidence that Naib Tehsildar had on 22.07.1996 referred the mutation as disputed one to SDM/Assistant Collector Ist Grade for appearance on 06.08.1996. Application Ex.PA was moved by the complainant even 8 months thereafter. The complainant has miserbly failed to explain this long delay. The mutation was not even pending before the Naib Tehsildar Rakesh Kumar accused when the complainant made this application to the Deputy Commissioner. This long and un-explained delay makes the complainant's testimony highly doubtful. In the aforesaid context, learned counsel for the appellant also pointed out that the will on the basis of which the disputed mutation was entered, was found to be forged one and thereafter, the complainant lodged false FIR at belated stage because mutation could not be sanctioned on the basis of forged will. There is considerable force in the contention. Yashpal Chand Jain, finger print expert DW-2 has proved that the disputed will did not bear the thumb impressions of testatrix Smt. Lichhmi. Even Assistant Collector Ist grade found the will to be forged and fictitious and consequently, sanctioned mutation in favour of natural heirs of Lichhmi vide order dated 31.03.1997 Ex.DB. It is thus apparent that the complainant, realising that the mutation was not being sanctioned in favour of her sons because the will was not genuine, made complaint against both CRA No.994-SB of 2003 -7- the accused very belatedly. Thus the complainant's version is unacceptable. In the aforesaid context, testimony of Hardei- complainant PW-1 alone would not be sufficient to prove the guilt of the appellant beyond reasonable doubt. Testimony of the complainant becomes suspicious in view of the circumstances noticed here-in-before. Consequently, in the absence of any corroboration, it would be highly unsafe to convict the appellant on the sole uncorroborated and interested testimony of the complainant. In this context, it would not be out of place to notice that testimony of the complainant has been contradicted by Bhoop Singh PW-3. He has categorically stated that in his presence, the complainant never gave Rs.5000/- to accused-Sunder Lal. This is in contradiction to the testimony of the complainant that she had paid the amount to Sunder Lal-accused in the presence of Bhoop Singh, Numberdar. Learned counsel for the appellant also rightly pointed out that the case of Sunder Lal-appellant is at par with that of co-accused Rakesh Kumar because there is only sole testimony of the complainant against both the accused, but inspite thereof, the learned Trial Judge distinguished the case of the appellant Sunder Lal from that of co-accused Rakesh Kumar on the ground that in preliminary enquiry, the appellant was found guilty of accepting Rs.5000/- from the complainant whereas appellant's co-accused was not found guilty of demanding Rs.15,000/- from the complainant. There is considerable force in the submission of the learned counsel for the appellant. The distinction made by the Trial Judge between the case of the appellant Sunder Lal and the case of co-accused Rakesh Kumar is infact no distinction because in the witness box during trial, complainant Hardei only supported the case of the prosecution against both the accused. Mangat, Patwari PW-2, in whose presence CRA No.994-SB of 2003 -8- Rakesh Kumar allegedly demanded Rs.15,000/- from the complainant, has denied the said version. Similarly, Bhoop Singh in whose presence the complainant allegedly paid Rs. 5000/- to the appellant Sunder Lal, has also denied the said version. Finding in the preliminary enquiry report was for the purpose of initiating action and can not be used to convict the appellant on its basis. It would not be out of place to notice with significance that during preliminary enquiry, Bhoop Singh had allegedly stated that the amount was paid in his presence by the complainant to Sunder Lal Patwari as observed in the enquiry report, but in the witness box, Bhoop Singh was not confronted with his said statement allegedly made during the enquiry. There is also nothing on record to depict that Sunder Lal had opportunity of cross-examination of the aforesaid witness Bhoop Singh during enquiry. Consequently, the statement of Bhoop Singh made during enquiry and the finding recorded by Smt. Dipti Uma Shankar, SDM on its basis can not be used as substantive evidence to convict the appellant Sunder Lal. Consequently, the statement of Smt Dipti Uma Shankar has no probative value to determine the guilt of the appellant because the said witness had no personal knowledge of the fact in issue. Her report is based on statements of witnesses recorded by her. However, the material witnesses Mangat and Bhoop Singh, who were examined during enquiry, have not supported the prosecution case during trial. Consequently, statement of the Enquiry Officer Dipti Uma Shankar can not be used to convict the appellant. We are thus left with the sole deposition of the complainant which is not sufficient to convict the appellant. Learned counsel for the appellant also referred to affidavit Ex.DA allegedly affirmed by the complainant, wherein it has been stated that she had made complaint against both the accused at the instance of Mangat, Patwari, who had infact taken Rs.35,000/- from the complainant for the mutation in question. However, this affidavit can not be CRA No.994-SB of 2003 -9- used because the complainant in the witness box denied having affirmed this affidavit. It is correct that Smt. Deepti Uma Shankar in her cross- examination admitted having attested the aforesaid affidavit as identified by Madan Lal Ex- Municipal Councilor . However, without examination of said Madan Lal, it can not be said that the aforesaid affidavit was actually affirmed by the complainant. Consequently, this affidavit can not be used against the prosecution. For the reasons aforesaid, I find that the prosecution case against the appellant is highly suspicious and guilt of the appellant is not proved beyond reasonable doubt. The appellant therfore, deserves the benefit of doubt. The appeal is, therefore, allowed. Impugned judgment and order passed by learned Special Judge, Hisar qua appellant are set aside and appellant Sunder Lal is acquitted of the charge against him giving him benefit of doubt. Fine amount paid by him before the Trial Judge shall be refunded to him. August 08, 2011 (L.N. MITTAL) harjeet JUDGE