Criminal Appeal No. 714-SB of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 714-SB of 1996 Date of Decision: 27.04.2010 Jawahar Lal son of Rati Ram, resident of Garhi Mohalla, Rohtak. ... Appellant Versus State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. Baljit Mann, Advocate, for the appellant. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, dated 09.10.96, and, the order of sentence, dated 11.10.96, rendered by the Special Judge, Bhiwani, vide which, he convicted the accused (now appellant), for the offence, punishable under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter to be called as the 'Act' only) and, sentenced him to undergo rigorous imprisonment, for a period of 02 years, and, to pay a fine of Rs. 10,000/-, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 06 months. Criminal Appeal No. 714-SB of 1996 2 2. The facts, in brief, are that, Ram Avtar, complainant, was having a kiosk (khokha), on the land, belonging to the Development and Panchayat Department, under the control of Block Development and Panchayat Officer (II), at a monthly rental of Rs. 150/-, wherein, he was selling seeds insecticides etc. On 28.05.93, the complainant, was summoned, by the accused, and told either to remove his kiosk (khokha), from the land, or pay a sum of Rs.10,000/-, as gratification, other than legal remuneration, to which, he agreed. However, on 02.06.93, after having consultation with his brother namely Ram Kishan, the complainant, moved a written complaint, to the Deputy Superintendent of Police, Dadri, against the accused, on the basis whereof, the first information report, was registered. Thereafter, a raiding party, consisting of Ram Avtar, complainant, Kuldeep Singh, Deputy Superintendent of Police, Arun Kumar, Sub Divisional Magistrate, Dhan Singh, Naib Tehsildar, and, Dharam Singh, Sub Inspector/Station House Officer, Police Station City, Charkhi Dadri, was formed. A sum of Rs. 10,000/-, consisting of ten currency notes of the denomination of Rs. 500/- each, and hundred notes of the denomination of Rs. 50/- each, was given, by the complainant, to the Deputy Superintendent of Police. Three currency notes of the denomination of Rs. 500/, and, Rs. 50/- each, were signed, by the Deputy Superintendent of Police. Thereafter, the entire amount of Rs. 10,000/-, was handed over, by the Deputy Superintendent of Police, to the complainant, vide a separate memo, duly signed by the Sub Divisional Magistrate, and, Dhan Singh, Naib Tehsildar, shadow Criminal Appeal No. 714-SB of 1996 3 witness. The complainant, was instructed, to hand over the amount of Rs. 10,000/-, to the accused, as gratification, other than legal remuneration, on his demand, whereas, Dhan Singh, Naib Tehsildar, was directed, to give a signal, as and when, the aforesaid currency notes, were handed over by the complainant, to the accused. Thereafter, the raiding party, proceeded towards the house of the accused. The complainant, went inside the house of the accused, and, on demand, handed over a sum of Rs. 10,000/-, as gratification, other than legal remuneration, to him. Dhan Singh, Naib Tehsildar, gave a signal to the members of the raiding party, the moment, the gratification, other than legal remuneration, was given, by the complainant, to the accused. The accused was arrested. His personal search, led to the recovery of 43 currency notes of the denomination of Rs. 100/- each, from the purse of the accused. Thereafter, the raiding party, conducted search of the room of the accused, wherefrom, the amount of Rs. 10,000/-, paid by Ram Avtar, to the accused, was recovered from underneath the mattress of the bed, wrapped in a newspaper. The entire amount of Rs. 10,000/-, recovered from the accused, paid to him, as gratification, other than legal remuneration, was taken into possession, vide a separate recovery memo. The statements of the witnesses were recorded. After the completion of investigation, the accused, was challaned. 3. On his appearance, in the Court, the accused, was supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 7 of the Act, was framed, against the accused, to which, he pleaded not guilty, and claimed judicial trial. Criminal Appeal No. 714-SB of 1996 4 5. The prosecution, in support of its case, examined Karan Singh, Block Development and Panchayat Officer, Hansi (PW1), Dharambir, Accountant (PW2), Rajpal, Draftsman (PW3), Ram Avtar, complainant (PW4), A.K. Raghav, Chief Judicial Magistrate (PW5), Arun Kumar, IAS (PW6), Dhan Singh, Naib Tehsildar (PW7), shadow witness, and, Kuldeep Singh Sihag, Deputy Superintendent of Police (PW8), Investigating Officer. Thereafter, the prosecution evidence was closed. 6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that, on 02.06.93, he was busy, in the meeting with the bankers, which started, at about 11.00, in the morning. It was further stated by him that, after the end of the meeting, when, he was seeing off the officers, he was arrested, near the hall of the Panchayat Samiti. It was further stated by him that, it was there, that his person, was searched, and a sum of Rs. 4300/-, belonging to him, which was the amount of his pay and allowances, was recovered, from him, besides the wrist watch and the gold ring. It was further stated by him that, he had never accepted any amount of Rs.10,000/-, from Ram Avtar. It was further stated by him that, he never demanded any such amount, from the complainant. It was further stated by him that, the place, wherefrom, the amount, was alleged to have been recovered, did not belong to him. It was further stated by him that, the room, was not occupied by him. It was further Criminal Appeal No. 714-SB of 1996 5 stated by him that, the house, itself belonged to Hari Ram, BDPO (I), Dadri. With a view to avoid repetition, the remaining defence set up by the accused, in his statement under Section 313 Cr.P.C., shall be discussed in detail, in the subsequent paragraphs. He, however, examined Raghvar Dayal Aggarwal (DW1), Hari Om, Clerk, D.C. Office, Bhiwani, Development Branch, Bhiwani (DW2), Badan Singh, Clerk, office of BDPO, Charkhi Dadri (DW3), Mahabir Parshad (DW4), Siri Chand, Head Constable (DW5), Sube Singh, Advocate, Charkhi Dadri (DW6), and, Devan Babu Sharma, Junior Engineer, Municipal Committee, Charkhi Dadri (DW7). Thereafter, he closed his defence evidence. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, the instant appeal, has been filed by the appellant. 9. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 10. To establish the commission of offences, punishable under Sections 7 of the Act, the prosecution, is required to prove the following ingredients:- (i) The accused, was a public servant or expected to be a public servant, at the time, when the offence, was committed; (ii) The accused, accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person; Criminal Appeal No. 714-SB of 1996 6 (iii) Such gratification, was not a legal remuneration, to which, the accused, was legally entitled; (iv) The accused, accepted such gratification, as a motive or reward for fore-bearing to do an official act, or doing or fore-bearing to show favour, or disfavour, to someone, in the exercise of his official functions. 11. The case of the prosecution, is mainly based, on the evidence of Karan Singh, Block Development and Panchayat Officer, Hansi (PW1), Dharambir, Accountant (PW2), Rajpal, Draftsman (PW3), Ram Avtar, complainant (PW4), A.K. Raghav, Chief Judicial Magistrate (PW5), Arun Kumar, IAS (PW6), Dhan Singh, Naib Tehsildar (PW7), shadow witness, and, Kuldeep Singh Sihag, Deputy Superintendent of Police (PW8), Investigating Officer. Before touching the merits of the case, it is to be seen, as to what is the position of the trap witnesses. The principle of law, laid down, in Raghbir Singh Vs. State of Punjab, AIR, 1976 (SC), 91, Shanti Lal Rameshwar Vs. State of Rajasthan, AIR, 1976 (SC), 738, Jai Ram Lakha Vs. State of Punjab, 1978, CLR (SC), 286, and, Darshan Lal Vs. Delhi Administration, 1974, CLR, 611 (SC), was to the effect, that the witnesses, in a trap case, are considered to be interested or partisan witnesses. Their evidence, is required to be scrutinized, carefully and cautiously, like that of any other interested or partisan witnesses and the Court may require corroboration to the evidence of such witnesses, through an independent source, in appropriate cases. Keeping in view the principle of law, laid down, in the aforesaid authorities, by the Criminal Appeal No. 714-SB of 1996 7 Apex Court, it is to be seen, as to whether, the evidence of the aforesaid witnesses, is reliable and credible, and without corroboration from an independent source, sufficient for bringing home the guilt to the accused. This aspect of the matter is being discussed, in the succeeding paragraphs. 12. There is, no dispute, about the factum that, the accused, at the relevant time, was Block Development & Panchayat Officer (II). This fact, was admitted, by the accused, in his statement, under Section 313 of the Code of Criminal Procedure, and it was also proved, from the evidence, on record. Under these circumstances, the accused, was a public servant, at the relevant time. 13. The next question, that arises for consideration, is, as to whether, the accused, had any motive, to demand gratification, other than legal remuneration, in the sum of Rs. 10,000/-, from the complainant. According to the complainant, his kiosk (khokha), was placed, near the wall of the Cooperative Bank. The land, under the kiosk (khokha), belonged to the Development and Panchayat Department under the control of Block Development & Panchayat Officer (II), and, he had been paying a rent of Rs. 150/- per month since 1981. He further stated that, the accused, asked him, to remove the kiosk (khokha), otherwise, he would get the same removed, by force, and, for that purpose, he demanded a sum of Rs. 10,000/-, as gratification, other than legal remuneration from him. DW6/A, is a copy of the resolution, passed by the Panchayat Samiti, on 29.05.93. It is evident, from DW6/A, the resolution, that proposal regarding the Criminal Appeal No. 714-SB of 1996 8 construction of shopping complex, by the Panchayat Samiti, was accepted. In that proposal, Ram Avtar, complainant, was accommodated, even beyond the normal rights of a kiosk (khokha) holder. It is evident, from item No. 6 of DW6/A, that Ram Avtar Beej Bhandar and the occupant of the kiosk (khokha), running a book shop therein, had agreed, to pay a sum of Rs. 30,000/- and Rs. 8,000/- advance respectively, and, that Ram Avtar, was demanding a shop, while no other person, was ready, to take the shop. It is further evident, from this document, that this amount of advance, was to be adjusted against the rent. This document further reveals that, Ram Avtar, complainant, wanted a shop 1 ft. bigger in size, than the normal size, and, he was ready, to pay rent @ Rs. 1,000/- per month, for the said shop. When the resolution, had already been passed, by the Panchayat Samiti, wherein, approval had been granted, for the construction of a shopping complex, and, Ram Avtar, had already been accommodated, even beyond the normal rights of a kiosk (khokha) holder, as far back, as on 29.05.93, the question of demanding and accepting a sum of Rs. 10,000/-, by the accused, as gratification, other than legal remuneration, from him, on 02.06.93, did not at all arise. Had this resolution been not passed, on 29.05.93, the matter, would have been different. In those circumstances, it would have been said, that the accused, had some motive, as a result whereof, he allegedly called the complainant, to his office, and demanded a sum of Rs. 10,000/-, as gratification, other than legal remuneration. Since the complainant, knew that, he had been accommodated, in respect of a larger space than Criminal Appeal No. 714-SB of 1996 9 that of a kiosk, vide the resolution aforesaid, no prudent man, could believe, that he would pay gratification, other than legal remuneration, in the sum of Rs. 10,000/-, to the accused, on 02.06.93. The prosecution, therefore, miserably failed, to prove, that the accused, allegedly accepted the gratification, other than legal remuneration, as a motive or reward for showing favour, to the complainant, in the exercise of his official functions. This ingredient, for constituting the offence, punishable under Section 7 of the Act, was not proved. 14. Now coming to the first demand of gratification, allegedly made, by the accused, on 28.05.93, other than legal remuneration, it may be stated here, that the statement of Ram Avtar, complainant, PW4, in that regard, is neither reliable, nor corroborated, through any other evidence, as would be discussed, hereinafter. Ram Avtar, when appeared, as PW4, in his examination-in-chief, stated that, he was summoned, by the accused, on 28.05.93, in the afternoon, and he asked him, if he wanted, to retain his kiosk (khokha) or get it replaced with a new kiosk, then he would have to pay a sum of Rs. 10,000/-. As stated above, this statement of Ram Avtar, PW4, is not supported by any independent witness. Normally, the agenda of the meeting, is sent, almost one day before. In the instant case, the meeting of the Panchayat Samiti, took place, on 29.05.93, wherein, a proposal, was approved, for the construction of a new shopping complex, wherein, the complainant, was allowed, to retain more space, than a kiosk (khokha) holder. On 28.05.93, the agenda, must have been received, by the accused. He knew that, there was a proposal, for the construction of new shopping Criminal Appeal No. 714-SB of 1996 10 complex. Under these circumstances, there was no occasion for him, to demand a sum of Rs. 10,000/-, as gratification, other than legal remuneration, from the complainant, for retaining his kiosk (khokha). The story of demand of Rs. 10,000/-, as gratification, other than legal remuneration, by the accused, on 28.05.93, as set up by the complainant, is nothing, but a concocted one. The complainant, being an interested witness, his evidence, could not be taken, as a gospel truth. The alleged first demand, made on 28.05.93, therefore, did not stand proved, beyond a reasonable doubt, from the evidence, on record. 15. Now coming to the alleged second demand and acceptance of a sum of Rs. 10,000/-, as gratification, other than legal remuneration, on 02.06.93, it may be stated here, that it has been held above, that there was no motive with the accused, either to demand, or accept this amount, as gratification, other than legal remuneration, as it was not within his competence, to allot the shop, to the complainant, on account of the reason, that already, a proposal, had been sanctioned, for the construction of a new shopping complex. Not only this, even the statement of Ram Avtar, PW4, to the effect that, on 02.06.93, the accused, demanded a sum of Rs. 10,000/-, as gratification, other than legal remuneration, and, he paid the same, to him, is not at all reliable. Besides that, his statement, in this regard, is not corroborated, by Dhan Singh, Naib Tehsildar, PW7, who was appointed, as a shadow witness, by the Investigating Officer. He did not state even a single word, that he heard the accused, demanding a sum of Rs. 10,000/-, as gratification, other than legal remuneration. Had the amount been Criminal Appeal No. 714-SB of 1996 11 demanded, as gratification, other than legal remuneration, by the accused, from the complainant, he being the shadow witness, would have certainly deposed, in that regard. The alleged second demand, on 02.06.93, was also not proved, by the prosecution, beyond a reasonable doubt. 16. Under these circumstances, it is to be determined, as to what was the effect of non-proof of the initial (first) and the second demand of gratification, other than legal remuneration, by the accused, from the complainant. The law is well settled, that when the prosecution fails to prove the initial and the second demand of gratification, other than legal remuneration, by the accused, from the complainant, then its case is bound to dwindle down. In Subash Parbt Sonvane Vs. State of Gujarat, 2002(3) RCR (Criminal), 188 (SC), a decision rendered by a Bench of three Judges of the Apex Court, the principle of law, laid down, was to the effect, that when there is no evidence, that the accused, demanded money, from the complainant,no offence under the provisions of the Act, is constituted. In Dharam Pal Vs. State of Haryana, 1997(4), RCR, 737 (P&H), the principle of law, laid down, was to the effect, that there is always demand first of illegal gratification, and then acceptance of the same, in reiteration of that demand. It was further held that if the demand of illegal gratification is not proved, then conviction for the offence, punishable under Section 7 of the Act, could not be recorded. In G.V. Naniudiah Vs. State (Delhi Administration), 1988(1), CLR, 595 (SC), the principle of law, laid down, was to the effect that, if the evidence, with regard to the demand Criminal Appeal No. 714-SB of 1996 12 of illegal gratification, was found to be unreliable, the benefit of doubt, should go to the accused, and he should be acquitted. The principle of law, laid down, in Pritam Singh Vs. The State of Punjab (1987-91), Supp. CLR, 13, was to the effect, that once there is no independent evidence, to support the prosecution version, regarding the demand of bribe, by the accused, and even the shadow witness fails to support the prosecution case, on this aspect of the matter, the case of the prosecution, against the accused fails and the accused is entitled to acquittal. In Ram Krishan Juneja Vs. The State of Haryana, 1993(1), RCR, 312, there was no independent evidence, that the accused, had demanded bribe money. The accused was given the benefit of doubt, and was acquitted of the charge, framed against him, for the offence, punishable under Section 5(2)(47) of the Prevention of Corruption Act, 1947. In Tarlok Singh Vs. The State of Punjab, 1983, RCR, 382, the demand of bribe, was not corroborated by an independent witness. It was held that the testimony of the complainant alone, regarding the demand of bribe, was not sufficient and the witnesses being interested, no reliance can be placed, on their testimony. Accordingly, the accused was acquitted. In Mani Ram Vs. State of Haryana, 2000(2), RCR (Criminal), 352, there was no evidence of initial demand of bribe, by the accused. The shadow witness also did not support the initial demand of bribe, by the accused. In these circumstances, it was held that, in such a case, the evidence should be impeachable and inspire confidence, in the absence whereof, the accused was entitled to acquittal. Ultimately, the accused was acquitted. In Satbir Singh Vs. Criminal Appeal No. 714-SB of 1996 13 State of Haryana, 2000(1), RCR (Criminal), 487, the initial demand of illegal gratification, by the accused, was not proved, by the prosecution, and the accused was acquitted. The crux of the principle of law, laid down, in the aforesaid cases, is to the effect that, if the prosecution fails, to prove, that the accused, made a demand of gratification, other than legal remuneration, then its case must fall to the ground. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the present case. As stated above, in the instant case, neither the initial demand of illegal gratification, nor the second demand dated 02.06.93 of the same, stood proved, beyond doubt, from the evidence, on record. In this view of the matter, relying upon the principle of law, laid down, in the aforesaid cases, it can be held that, no conviction for the offence, punishable under Section 7 of the Act, can be recorded, against the accused. 17. Now coming to the factum, with regard to the payment of Rs. 10,000/-, as gratification, other than legal remuneration, it may be stated here that, no doubt, the complainant and Dhan Singh, Naib Tehsildar, PW7, in their statements, stated that, the amount of Rs. 10,000/-, as gratification, other than legal remuneration, was paid, to the accused. However, no recovery of the alleged amount of gratification, other than legal remuneration, was effected, from the accused. On the other hand, the recovery of the tainted currency notes of Rs. 10,000/-, was effected, from underneath the mattress, lying on the bed, in a room of the residential house. The question arises, as to whether, the accused, was residing, in that residential house, or the Criminal Appeal No. 714-SB of 1996 14 same, had been allotted, to somebody else. Dharambir, Accountant of the Office of Block Development & Panchayat Officer, Dadri-II, when appeared, as PW2, stated that, there is only one residence meant for BDPO, at Dadri, and, that was occupied by Hari Ram, BDPO(I), Dadri. He further stated that, he was still occupying the same. He further stated that, the residence, was not allotted, to Jawahar Lal, accused, or, to any other BDPO No. (II) till the date of his statement, in the Court. He further stated that, Jawahar Lal, accused, was not allotted any government accommodation and he used to live with some relative at Dadri. There was no reason, on the part of Dharambir, Accountant, PW2, to depose falsely. He being an official witness of the Office of the BDPO, Dadri-II, could be said to be the best person, to state, as to whom, the residence aforesaid, was allotted, and, who was residing therein. No document, was produced, by the prosecution, on the record, to prove, that the aforesaid residence, had been allotted, to the accused, and, he was actually residing therein. Mahabir Parshad, DW4, also stated that, in May and June, 1993, Jawahar Lal, was posted, at Dadri. He further stated that, earlier he was posted, as BDPO, Ferozepur Jhirka. He further stated that, at Dadri, he was not having any accommodation, allotted to him, during May-June 1993. He further stated that, Jawahar Lal, accused, being his mother's sister's husband, was residing with them. No doubt, he is nearly related, to the accused, yet, his evidence, cannot be discarded, merely on account of such relationship. The prosecution, miserably failed, to prove, that the residence, was allotted, to the accused, and, he was residing therein. Criminal Appeal No. 714-SB of 1996 15 The evidence of Mahabir Parshad, DW4, is duly corroborated by the statement of Dharambir, Accountant, PW2, and, as such, it assumes much significance. When the accused, had not been allotted the residence aforesaid, nor he was residing, in the same, and, on the other hand, the same, had been allotted, to Hari Ram, BDPO(I), the question of allegedly keeping the amount of Rs. 10,000/-, aforesaid by the accused underneath the matters of the bed, in a room of that house, did not at all arise. Anybody could keep that amount there. Since no recovery of alleged bribe money was effected from the accused, it appears that, he was apparently falsely implicated, for the reasons, which would be discussed, in the subsequent paragraphs. 18. According to Ram Avtar, complainant, and, Dhan Singh, PW7, an amount of Rs. 10,000/-, as gratification, other than legal remuneration, was paid, to the accused, by the complainant. Had the same been paid, to the accused, then his hands, would have certainly been got washed in the water contained in a tumbler, as a result whereof, the fingers of his hands, would have become pink and the solution, would have also turned pink. No such procedure, was adopted, by the Investigating Officer.