IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal S-1030-SB of 1998 Date of Decision : February 21, 2011 Jagdish (since dead) through his near relatives .....Appellant Versus State of Haryana ....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Baljinder Singh, Advocate Mr. Manish Deswal, Deputy Advocate General, Haryana. T.P.S. MANN, J. The appellant, alongwith Sita Ram, was tried under Section 7 of the Prevention of Corruption Act, 1988. During the trial of the case, Sita Ram died and, accordingly, criminal proceedings against him abated. Vide judgment and order dated 27/30.11.1996, learned Special Judge, Sirsa convicted the appellant of the aforementioned offence and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for six months. It may not be out of place to mention here that during pendency of the appeal, the appellant also died on 9.1.2009. His near Crl. Appeal S-1030-SB of 1998 -2- relatives, i.e. Kamlesh Rani-wife and Munish Kumar and Rajinder Kumar-sons, filed Criminal Misc. No.44381 of 2010 for grant of permission to continue the appeal. Alongwith the application, copy of death certificate was attached. Vide order dated August 30, 2010, the Court allowed the application and granted leave to the applicants therein to continue the appeal. According to the prosecution, the appellant was posted as Patwari in the relevant circle whereas Sita Ram accused was posted as Ziledar in the Canal Department. Complainant Hanuman filed an application for the conversion of certain area belonging to him from un- command into command area. He went to the office of the Ziledar to find out the progress of his application, where he came across Sita Ram Ziledar as well as the appellant. Both, Sita Ram and the appellant, inquired from the complainant if he had paid the fee for that purpose or not. In reply, he stated that as per his information, no fee was payable. Upon this, the appellant and Sita Ram declared that the job would be done only if they were paid Rs.500/- each. In addition thereto, Sita Ram, Ziledar also declared that the job would be done only if the entire amount was paid to either of them. Even thereafter, the complainant contacted the appellant once or twice to find out the progress of his case, but the appellant reiterated that he would make a report only after a sum of Rs.1000/- i.e. Rs.500/- for him and Rs.500/- for Sita Ram was paid to him. However, the complainant was not interested in paying the Crl. Appeal S-1030-SB of 1998 -3- bribe amount. He, alongwith Gopi Ram, appeared before the Superintendent of Police, State Vigilance Bureau, Hisar, who asked him to give his complaint in writing. The complainant got scribed an application from Gopi Ram, put his own signatures thereon and gave it to the police on 4.8.1993. The Superintendent of Police asked the complainant to contact him on the following day alongwith one witness at PWD Rest House, Sirsa. On 5.8.1993, complainant Hanuman, alongwith Rameshwar reached PWD Rest House and noticed that a raiding party had already been formed and Tehsildar Banwari Lal Gaur and other police officials, including DSP Raj Pal were present there. An application for conducting raid was made by DSP Raj Pal to the Distict Magistrate, Sirsa. Shri Tarun Bajaj, Additional District Magistrate granted necessary permisson. DSP Raj Pal then gave a demonstration to Hanuman and Rameshwar about the action of phenolphthalein powder when coming in contact with solution of clean water and sodium carbonate powder. Hanuman was instructed to contact the appellant in the office of District Magistrate, Sirsa and to hand over the tainted currency notices to him. Rameshwar was assigned the duty of a shadow witness and instructed to give the agreed signal once the tainted money received by the appellant. Once the signal was received, the raiding party reached the place where the the appellant was present. DSP Raj Pal disclosed his identity and the facts and circumstances of the case to the appellant. Crl. Appeal S-1030-SB of 1998 -4- DSP Raj Pal also searched the person of the appellant and found the tainted currency notes, the numbers whereof tallied with the memo, earlier prepared. The hands of the appellant were washed in clean water and sodium carbonate powder, which turned pinkish. According to Hanuman, the agreed amount was Rs.1000/-, but the appellant had demanded Rs.1,500/-, which was paid. The appellant was arrested and on completion of investigation, challan was presented against the appellant as well as his co-accused Sita Ram. Both of them were charged for the aforementioned offence, to which they pleaded not guilty and claimed trial. Before any evidence could be examined by the prosecution, Sita Ram died and, accordingly, criminal proceedings against him came to an end. In support of its case, the prosecution examined PW1 Inderjit, Draftsman, PW2 Shiv Parkash, Patwari Halqa, PW3 Budh Ram, Assistant Divisional Reader, Canal Department, PW4 Randhir Singh, Deputy Collector, Canal, PW5 Banarsi Dass, DSP (retd.), PW6 Gopi Ram, PW7 Y.P.Guglani, PW8 C. Rakesh Kumar, PW9 Banwari Lal Gaur, Tehsildar (retd.), PW10 Hanuman and PW11 DSP Raj Pal. Report Ex.PZ of Forensic Science Laboratory was tendered in evidence. Rameshwar, the shadow witness and SSP Om Parkash were given up as having died whereas Hari Singh was given up as unnecessary. Crl. Appeal S-1030-SB of 1998 -5- When examined under Section 313 CR.P.C., the appellant stated that it was a false case. The witnesses had deposed falsely. There was a case of transfer of land of Jagdish, brother of Gopi Ram, from one outlet to another outlet, which was decided against him and so they were annoyed. In dischrage of his duties, the appellant had not obliged Hanuman, Rameshwar and Gopi Ram and they got him falsely implicated in the case as they were close to the then Chief Minister of Haryana. However, in defence, the appellant did not examine any evidence. After hearing learned counsel for the parties and going through the evidence brought on the record, the trial Court believed the prosecution version and convicted and sentenced the appellant, as mentioned above. There is a major discrepancy in the prosecution case as to whether PW10 Hanuman had given 10 currency notes of the denomination of Rs.100/- each to the appellant or 15 notes of the similar denomination. The consistent case of the prosecution is that the appellant had earlier demanded Rs.1,000/- from Hanuman, which were to be shared by the appellant and Sita Ram, Ziledar equally. Even while submitting application, Hanuman had stated that Rs.1,000/- had been demandeed by the appellant. Even he had produced only ten currency Crl. Appeal S-1030-SB of 1998 -6- notes of the denomination of 100/- each before DSP Raj Pal, to which phenolphthalein powder was applied and thereafter those currency notes returned to him. Accordingly, recovery memo Ex.PT was prepared. When PW Hanuman and Rameshwar reached the office of the appellant, the appellant was said to have demanded Rs.1,500/- instead of Rs.1,000/- by saying that Rs.500/- were required by Deputy Collector as well. Though PW Hanuman protested by saying that he had brought Rs.1,000/- as per earlier demand yet as the appellant insisted for Rs.1,500/-, at that point of time, PW Hanuman borrowed Rs.500/- from Rameshwar and gave Rs.1,500/- i.e. 15 currency notes of the denomination of Rs.100/- each including the ten tainted currency notes to the appellant. After acceptance of the said amount and giving of the designated signal, the raiding party reached the spot and search of the appellant conducted which led to recovery of those 15 currency notes Exs.P3 to P17. PW9 Banwari Lal Gaur, who was posted as Tehsildar- cum-Executive Magistrate, Sirsa on the day of the trap and had accompanied the raiding party to witness the recovery of the tainted currency notes, deposed in his cross-examination that the DSP had initialed only those currency notes which were given to Hanuman whereas the extra currency notes recovered from the appellant were not initialed by the DSP. The DSP had initialed the currency notes worth Rs.1,000/- in one of their corners. The currency notes were not initialed either by Hanuman or by Rameshwar or by him. When the sealed parcel Crl. Appeal S-1030-SB of 1998 -7- was opened on the request of defence counsel, 15 currency notes of the denomination of 100 were taken out, which were found initialed in one of the corners. PW11 DSP Raj Pal tried to wriggle out of the awkward situation by deposing that he had not made any specific mark on the currency notes which were handed over to the complainant before the raid. He then added that perhaps he had not signed or put his initials on the above mentioned 10 notes. He feigned ignorance if he had got the aforesaid 10 notes initialed from some other person. However, he stated that all the 15 recovered notes bore initials at the corner which appeared to be in same handwriting. He then stated that he did not remember or know as to who had signed those notes and when. Apparently all the 15 notes recovered from the appellant stood initialed. As 15 notes had been recovered by DSP Raj Pal it would indicate that no such raid, as alleged by the prosecution, had been conducted and the appellant implicated in the case after having been taken to the Vigilance Bureau. According to PW3 Budh Ram, Assistant Divisional Reader, Canal Department and PW4 Randhir Singh, Depty Collector, Canal, Hisar Water Services Division, the job of conversion of un-command area into command area was that of XEN/Divisional Canal Officer and not of the appellant. If that was a fact, the appellant had nothing to do with the application said to have been submitted by PW10 Hanuman for conversion of un-command area into command area. Crl. Appeal S-1030-SB of 1998 -8- It is true that Rameshwar, who had acted as a shadow witness died before he could be examined at the trial, however, no other evidence had been brought on record by the prosecution to corroborate the testimony of complainant Hanuman that the appellant had demanded illegal gratification from him for conversion of his area from un- command into command and the bribe money was thereafter received by the appellant. In view of the above, it cannot be said that prosecution has been able to prove its case against the appellant beyond reasonable doubt. Resultantly, the appeal is accepted and the judgment of conviction and sentence passed by the trial Court is set aside. ( T.P.S. MANN ) February 21, 2011 JUDGE satish