IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 657-SB of 2004 Date of Decision : March 03, 2010 Dilbagh Singh (since deceased) through his near relatives. ....Appellant Versus State of Haryana .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. Jasbir Mor, Advocate Mr. Rajeev Takkar, Addl. Advocate General, Haryana T.P.S. MANN, J. The present appeal was filed by the appellant against the judgment and order dated 27/28.2.2004 passed by Special Judge, Rohtak whereby he was convicted under Sections 7/13 of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of six months. According to the prosecution, on 28.6.2002 complainant Surender @ Salender alongwith Rajpal went to State Vigilance Bureau, Crl. Appeal No. 657-SB of 2004 -2- Rohtak and moved an application Ex. PO before Inspector Om Parkash alleging therein that he was having 2½ acres of land in village Chiri, District Rohtak. He had entered into an agreement to sell one acre of land to Rajpal. About one month ago, he asked appellant Dilbag Singh Patwari to give him a copy of jamabandi. The appellant told him that Rs.700/- would be charged. Accordingly, he took Rs.300/- from him in advance as Government fee and demanded remaining Rs.400/- with the threat that in case payment was not made, copy of jamabandi would not be given. The complainant produced currency notes worth Rs. 400/- before Inspector Om Parkash but stated that he was not willing to pay illegal gratification to the appellant. Inspector Om Parkash made endorsement Ex.PO/1 on the application and on its basis, FIR No. 38 dated 28.6.2002 under Sections 7/13 of the Prevention of Corruption Act was registered at State Vigilance Bureau. Further case of the prosecution is that Inspector Om Parkash moved application Ex. PG before Additional Deputy Commissioner, Rohtak, as the Deputy Commissioner, Rohtak was out of station to depute some Gazetted Officer in the raiding party. Accordingly, Charan Dass, Tehsildar, Meham was joined in the raiding party. The Tehsildar put his initials on the currency notes. The phenolphthalein powder was applied on the notes and were handed over to complainant to be given to the appellant. Rajpal was deputed as a shadow witness. He was directed to give signal to the police party by Crl. Appeal No. 657-SB of 2004 -3- swiping his hand on the head after passing of the money to the appellant. The police party came to know that the appellant was sitting in the house of one Bani Singh and, accordingly, the police party alongwith the complainant and shadow witness, went to the said house. The police party stayed at some distance. After the money was handed over to the appellant, the requisite signal was given by the shadow witness to the police party, who apprehended the appellant from the house of Bani Singh. On search of the appellant, four marked currency notes were recovered from the left pocket of his shirt. A mixture of water containing sodium carbonate was prepared and the hands of the appellant and the pocket of the shirt were washed. Each time, the colour of the water turned pink. A nip of sample was separated from each wash and sealed with seal 'SK'. The currency notes were dried and put in an envelop which was also sealed with seal 'SK'. The seal after use was entrusted to the Tehsildar. All the articles were taken into possession vide memo. Ex.PL which was duly attested by the witnesses. Thereafter, the hands of the complainant were also washed with similar mixture which also turned pink. A nip of sample was separated from the same and sealed with seal 'SK'. The seal was entrusted to the Tehsildar after use. The sample was taken into possession vide memo. Ex. PM. Copy of jamabandi Ex.P1 was taken into possession vide memo. Ex.PK which was duly attested by the witnesses. Rough site plan Ex. PU of the place of recovery was prepared and the appellant was arrested. Crl. Appeal No. 657-SB of 2004 -4- Statements of the witnesses were recorded. The case property was deposited with MHC. Copy of posting order of the appellant Ex.PB was taken into possession vide memo. Ex.PC which was also duly attested by the witnesses. Scaled site plan Ex.PA was also got prepared. The sanction order Ex.PF was obtained from the Collector, Rohtak. After completion of the investigation, final report under Section 173 Cr.P.C. was submitted in the Court. The appellant was then charged for offence under Sections 7/13 of the Prevention of Corruption Act, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined twelve witnesses. PW1 Constable Sumit Kumar, PW3 MHC Daya Nand, PW4 Constable Subhash, PW7 Constable Kuldeep Singh and PW12 Inspector Om Parkash deposed about the various steps taken during the investigation of the case. PW2 Rohtas Singh, Kanungo proved the posting order Ex. PB of the appellant. PW5 Dilbag Singh, Bill Clerk in the Deputy Commissioner's Office, Rohtak identified the signatures of District Magistrate, Rohtak on sanction order Ex. PF. PW6 Rakesh Gupta, ADC, Rohtak produced application Ex.PG and proved his endorsement Ex.PH vide which the Tehsildar was asked to do the needful. PW8 Charan Dass, Tehsildar deposed about the minute details of the raid, which was conducted in his presence. PW9 Surender, trap Crl. Appeal No. 657-SB of 2004 -5- witness. PW10 Rajpal, who was deputed as shadow witness, and PW11 Zora Singh, however, did not support the prosecution case and were declared hostile. When the appellant was examined under Section 313 Cr.P.C., he denied all the incriminating circumstances put to him and pleaded false implication. In defence, he examined Bani Singh, Lambardar of village Chiri as DW1. The trial Court believed the prosecution version and, accordingly, convicted and sentenced the appellant, as mentioned above. I have heard learned counsel for the parties and scanned the evidence with their able assistance. Learned counsel for the appellant has submitted that PW9 Surender, trap witness and PW10 Rajpal, who was deputed as a shadow witness did not support the prosecution case. Similarly, PW11 Zora Singh, who was said to have accompanied PW9 Surender to the office where the appellant was sitting, did not support the prosecution case and stated that nothing had happened in his presence. Therefore, there was no corroboration to the prosecution case about the appellant having demanded a sum of Rs. 400/- from him as bribe and, thereafter, received the same for the purposes of preparing and issuing jamabandi to him. It is true that PW9 Surender, PW10 Rajpal and PW11 Zora Crl. Appeal No. 657-SB of 2004 -6- Singh did not support the case of the prosecution and at the request made by the Public Prosecutor, they were declared hostile and allowed to be cross-examined. In his examination-in-chief, PW9 Surender deposed that he had to pay Rs. 500/- to the appellant regarding revenue collection of Gopal Singh son of Ram Singh. On 24.6.2002 Inspector Om Parkash of State Vigilance Bureau, Rohtak and Rajpal son of Hardwari met him at Lakhanmajra, who told him to pay the revenue collection to the appellant on 28.6.2002. His thumb impression was obtained on blank papers. On 28.6.2002, he went to village Chiri where Inspector Om Parkash met him and took a sum of Rs. 400/- from him by assuring that Rs. 100/- would be exempted from the revenue collection. He handed over the said amount of Rs. 400/- to the Inspector, who directed him to hand it over to the appellant. At that time, the appellant was sitting in the house of Bani Singh, Lambardar. The witness went to meet him and gave Rs.400/-. The appellant further handed over the said amount to Bani Singh, Lambardar. At that time, Inspector Om Parkash alongwith 3/4 persons reached there and obtained his thumb impressions on blank papers. He was then allowed to go from the house of Bani Singh, Lambardar with the assurance that Rs. 100/- would be exempted. Because of the aforementioned stand taken by PW9 Surender, the Public Prosecutor had requested the trial Court that he be allowed to cross- examine him. In his cross-examination, which followed, he admitted that Ex. PO bore his left thumb impression at point A though the said Crl. Appeal No. 657-SB of 2004 -7- application was not got drafted by him nor he had got recorded that he had agreed to sell one acre of his land to Rajpal and when he went to the appellant for obtaining copy of the jamabandi, he was asked to pay a sum of Rs. 700/- in all, Rs. 300/- out of which was the fee for obtaining copy of jamabandi and Rs. 400/- as bribe. He also admitted his thumb impressions on various documents Exs. PK, PL, PM, PN and PQ. Though he denied the factum of demand of bribe by the appellant and his consequently making statement before Inspector Om Parkash, Vigilance Bureau and, thereafter, of demand, once again, being made by the appellant and his paying the bribe money, yet the aforementioned various documents shown to have been prepared at the spot bear his thumb impressions. His explanation that his thumb impressions were obtained on blank papers is nothing but an afterthought so as to help the appellant. Similarly during his cross-examination by the Public Prosecutor, PW10 Rajpal admitted that he was 7th class pass and various documents, i.e. Exs. PK, PL, PM, PN and PQ bore his signatures although, according to him also, his signatures were obtained by the police on blank papers. Similar was the stand of PW11 Zora Singh regarding his left thumb impression appearing on various documents. His explanation about his thumb impression appearing on the documents was the same as offered by PW9 Surender and PW10 Rajpal. However, from their testimonies, it is made out that PW9 Surender was to pay Rs. 400/- to the appellant and, therefore, Inspector Om Parkash Crl. Appeal No. 657-SB of 2004 -8- had asked him to hand over the said amount to him. PW9 Surender had handed over the amount to the appellant, who passed on the same to Bani Singh, Lambardar. Said Bani Singh, Lambardar while appearing as DW1 admitted the said fact. Therefore, one thing is apparent that PW9 Surender had passed on the tainted currency to the appellant. However, if the appellant was to receive money by way of land revenue, he was to make an entry in the record to that effect. No such entry was made by the appellant nor any material is available on the record to show that any such amount was due as land revenue. Therefore, it is apparent that PW9 Surender, PW10 Rajpal and PW11 Zora Singh have not supported the prosecution case so as to help the appellant. That will not cast any doubt on the prosecution case regarding the demand of Rs.400/- as bribe made by the appellant from PW9 Surender. Once PW9 Surender submitted an application Ex. PO before Inspector Om Parkash and, thereafter, at the time of the raid when PW9 Surender contacted the appellant, who was at that time present in the house of Bani Singh, Lambardar, it can be inferred that demand was made by the appellant for paying the remaining amount of Rs. 400/- so that he may issue copy of the jamabandi to him. The testimony of PW9 Surender is duly corroborated by that of PW8 Charan Dass, Tehsildar in whose presence the recovery of the tainted money was effected from the left pocket of the shirt worn by the appellant. PW8 Charan Dass had no axe to grind against the appellant due to which he could have deposed Crl. Appeal No. 657-SB of 2004 -9- falsely against him. No suggestion was put to him that he was inimically disposed towards the appellant. The aforementioned evidence consisting of the statements of PW9 Surender and PW8 Charan Dass, Tehsildar is further corroborated by the factum of the hand wash which was carried out by PW12 Inspector Om Parkash. After recovering the tainted money from the pocket of the shirt worn by the appellant, first his hand wash was taken and as a result thereof the colour of the solution turned pink. It was followed by the left pocket of the shirt being dipped in the solution which again turned pink. The hand wash of complainant-Surender also led to the water turning pink. From the said objective material available on the record, it is established that PW9 Surender had first carried the tainted money to the place where the appellant was sitting. Once the bribe was demanded, he had handed over the same to the appellant, who then put the same in his shirt's pocket. Report Ex. PV issued by the Forensic Science Laboratory, Madhuban confirmed the presence of sodium carbonate and phenolphthalein in the nips of hand wash of the appellant, pocket wash of the appellant and also hand wash of complainant Surender. As regards the objection of the defence that no attempt was made to join any independent witness, it may be noticed that to begin with, an attempt was made by deputing Zora Singh for accompanying PW9 Surender to the house of Bani Singh, Lambardar and PW11 Zora Singh being asked to stay at some distance and notice the handing over Crl. Appeal No. 657-SB of 2004 -10- of the tainted money to the appellant. However, both PW10 Rajpal and PW11 Zora Singh while deposing before the trial Court opted not to toe the line of the prosecution. Therefore, it cannot be said that no attempt was made by the prosecution to join any independent witness. At the same time, PW8 Charan Dass can be treated as an independent witness as he had been instructed by the Additional Deputy Commissioner to associate himself with Inspector Om Parkash for conducting the raid. He supported the prosecution case in its entirety. According to him after receiving the pre-designated signal from Rajpal, he alongwith others entered the house of the Lambardar where the appellant was sitting and was apprehended. On his search, Rs. 400/- were recovered from the left pocket of his shirt. Thereafter, the hand wash and the pocket wash of the appellant were taken and both times the water turned pink. Even the hands of PW9 Surender were washed and the water turned pink. In his cross-examination, PW8 Charan Dass testified that Rajpal was instructed to stand near the window and that window was visible from the road. Further, the raiding party was standing at a distance of 60/70 feet when it received the signal from Rajpal. Within 2/3 minutes the raiding party reached the spot after receiving the signal. When the raiding party reached inside the room, the appellant was sitting on the cot. The Investigating Officer caught the appellant from his hands. The hands were got washed in the room itself. All this while, no one came from the village. He denied the suggestion that Crl. Appeal No. 657-SB of 2004 -11- nothing was recovered from the appellant or that he had connived with Inspector Om Parkash to register a false case against the appellant. He further denied that he had signed the papers on the asking of Inspector Om Parkash. He further denied the suggestion that initially the amount was given to Bani Singh, Lambardar and, thereafter, put in the pocket of the appellant. Therefore, it cannot be said that there is no sufficient evidence available on the file to connect the appellant with the crime. Certain contradictions and discrepancies have been pointed out by the defence counsel. However, none of them can be termed as material. Such like discrepancies are bound to occur in the testimony of truthful witnesses as with the passage of time human memory fades. Impugned judgment of conviction has been thoroughly scanned. The trial Court has taken into consideration the entire evidence available on the file and appreciated the same in its true perspective so as to hold the appellant guilty of the crime. Those findings are, therefore, not to be disturbed in the present appeal. Resultantly, the appeal is without any merit and, therefore, dismissed. ( T.P.S.MANN ) March 03, 2010 JUDGE ajay-1