Crl. Appeal No. 852-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 852-SB of 2002 Date of Decision : July 28, 2011 Mukhtiar Singh – Patwari .... Appellant Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. T. S. Sangha, Senior Advocate with Mr. Narinder Singh, Advocate for the appellant. Mr. Shailesh Gupta, DAG, Punjab. * * * L. N. MITTAL, J. (Oral) : Mukhtiar Singh accused having been convicted and sentenced by learned Special Judge, Patiala, vide judgment and order dated 03.05.2002, has preferred the instant criminal appeal. Prosecution case is that on 04.09.1996, complainant Arjan Singh went to the accused (then posted as Revenue Patwari) in his office at Patiala and requested for supply of copy of jamabandi. The accused demanded Rs.1,000/- as illegal gratification for the same. The bargain was, however, settled at Rs.600/-. The accused asked the complainant to come Crl. Appeal No. 852-SB of 2002 2 on 06.09.1996 because it was holiday on 05.09.1996. The complainant met Bakhshish Singh (shadow witness) on 05.09.1996, who, on being disclosed about the demand of bribe by the accused, advised the complainant to approach Vigilance Bureau people. Accordingly, on 06.09.1996, both Arjan Singh and Bakhshish Singh went to the office of Vigilance Bureau, Patiala, where Arjan Singh lodged FIR by making statement to DSP Amar Nath. The complainant produced amount of Rs.600/- in the form of one currency note of Rs.500/- denomination and another currency note of Rs.100/- denomination. Phenolphthalein powder was applied to the said currency notes and the same were handed over to the complainant vide memo Ex.P-L, in which numbers of the notes were also recorded. The demonstration of phenolphthalein powder turning the sodium carbonate solution into pink was also given to the complainant and the shadow witness. Trap was laid. Necessary instructions were given to the complainant and shadow witness. Kewal Krishan – Sub Divisional Clerk of Irrigation Department was joined in the raiding party on the way. The complainant and the shadow witness went inside the office of the accused, whereas the remaining raiding party stayed behind. On demand of the accused, the complainant gave him the tainted currency notes and the accused gave copy of jamabandi to the complainant and obtained his signatures in his register. The accused himself put the date as 06.09.1996 below the complainant's signatures in the register. Thereupon, the shadow Crl. Appeal No. 852-SB of 2002 3 witness gave the requisite signal to the remaining raiding party, who reached the spot. Tainted money was recovered from the drawer of table of the accused, who had put the same there. Hand-wash of the accused turned the sodium carbonate solution into pink. The same was seized by the police. Copy of jamabandi given by the accused to the complainant was also seized from the latter by the police. Two registers of the accused were also taken into possession by the police. Necessary investigation proceedings were conducted at the spot. After obtaining sanction for prosecution of the accused and on completion of investigation, police presented report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.) for prosecution of the accused under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988 (in short – the Act). Charge under Section 13 (1) (d) read with Section 13 (2) and Section 7 of the Act was framed against the accused, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined nine witnesses. Head Constable Gurcharan Singh (PW-1) and Constable Surinder Singh (PW-2), being formal witnesses, tendered their affidavits in evidence. Balbir Singh – Kanungo (PW-3) proved posting of the accused as Patwari and also proved copy of jamabandi in question to be in the handwriting of the accused. Crl. Appeal No. 852-SB of 2002 4 Vijay Balab Singh – Election Kanungo (PW-4) proved sanction order for prosecution of the accused. Kewal Krishan (PW-5), complainant Arjan Singh (PW-6) and shadow witness Bakhshish Singh (PW-8) broadly stated according to the prosecution version. Deepak Sharma – Clerk (PW-7) proved posting order of the accused as Patwari. Head Constable Rajwant Singh (PW-9) was examined in place of DSP Amar Nath – Investigating Officer, who had since died. This witness proved various documents. This witness was also in the raiding party and broadly stated about the prosecution version. On conclusion of prosecution evidence, accused was examined under Section 313 Cr.P.C. The accused denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that one Head Constable and a Constable came to his office and took him to the office of Vigilance Bureau saying that he was wanted by the DSP Vigilance along with some record and then, he was falsely implicated in this case. In defence, the accused examined Head Constable Gurbhej Singh (DW-1). He brought register no.19 relating to deposit of case property and stated that there was no entry in the said register regarding deposit of sealed nip containing hand-wash solution of the accused nor Crl. Appeal No. 852-SB of 2002 5 there was entry regarding taking out of the nip for producing it in the Court. Learned Special Judge, Patiala, vide judgment dated 03.05.2002, convicted the accused under Section 13 (1) (d) read with Section 13 (2) and Section 7 of the Act and after hearing the parties on quantum of sentence, vide order of even date, sentenced the accused to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000/- for each of the two offences. Both the substantive sentences were ordered to run concurrently. Feeling aggrieved, the convict has preferred the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellant contended that the complainant Arjan Singh has not stated that copy of jamabandi was supplied to him by the accused after the complainant gave the bribe money to the accused. It was also canvassed that there is no entry in the relevant register Ujrat (receipt of fee) regarding supply of copy of jamabandi on 06.09.1996 and rather, there is entry regarding supply of copy of jamabandi to the complainant made on 04.09.1996. It was also pointed out that the complainant, in cross-examination, suppressed the factum of suit filed against him by his adopted son Nirmal Singh, although in further cross- examination, the complainant had to admit that the suit had been compromised by him with Nirmal Singh. It was pointed out that against the Crl. Appeal No. 852-SB of 2002 6 wishes of the complainant, the accused had supplied copy of jamabandi to Nirmal Singh, who filed suit on its basis against the complainant, and therefore, the complainant being annoyed, got the accused falsely implicated in this case. It was next contended that in all the memos i.e. Ex.P-F, Ex.P-G, Ex.P-H, Ex.P-I, Ex.P-J and Ex.P-L, FIR number has been changed from `57' to `58' and in memo Ex.P-L, the date of memo has also been changed from `5' to `6'. It was also argued that sealed nip of hand- wash of the accused was not deposited in Malkhana as there is no entry thereof in the relevant register no.19, as stated by Head Constable Gurbhej Singh (DW-1). On the other hand, learned State counsel contended that Kewal Krishan (PW-5) is an independent witness and he has supported the prosecution case. It was also submitted that complainant Arjan Singh (PW- 6) and shadow witness Bakhshish Singh (PW-8) are also independent witnesses and they had no reason to implicate the accused in a false case to to depose falsely against him. In this context, it was submitted that there is no reason for false implication of the accused. The witnesses had no enmity with him. It was submitted that all prosecution witnesses had supported the prosecution case and guilt of the accused is proved beyond reasonable doubt. I have carefully considered the rival contentions. Statements of Arjan Singh (PW-6) and Bakhshish Singh (PW- Crl. Appeal No. 852-SB of 2002 7 8) are sufficient to prove the demand and acceptance of illegal gratification by the accused. Their statements are further corroborated by statements of Kewal Krishan (PW-5) and Head Constable Rajwant Singh (PW-9), both of whom were in the raiding party. Presence of Rajwant Singh in the raiding party is mentioned in the FIR itself. Statements of all these witnesses could not be impeached in their lengthy cross-examination. Moreover, they had no enmity whatsoever with the accused, and therefore, they had no reason to implicate the accused in a false case or to depose falsely against him. The contention, that the complainant was annoyed with the accused because the accused had supplied copy of jamabandi to complainant's adopted son Nirmal Singh against wishes of the complainant and on the basis of said copy of jamabandi, Nirmal Singh filed suit against the complainant, cannot be accepted because no such plea was even taken by the accused in his examination under Section 313 Cr.P.C. nor there is even a shred of material on record to substantiate the said contention. No evidence has been led by the accused to depict that he had supplied copy of jamabandi to Nirmal Singh prior to registration of the instant FIR or at any other stage. On the other hand, copy of statement Ex.D-X/2 made by Nirmal Singh – plaintiff in that suit for withdrawing the said suit on account of compromise with the defendants (complainant and others) depicts that the said suit was instituted on 16.01.1997 i.e. more than four months after the registration of the instant FIR and consequently, it cannot be said that the complainant was annoyed Crl. Appeal No. 852-SB of 2002 8 on account of filing of suit against him by Nirmal Singh and for this reason, the complainant got the accused falsely implicated in this case. Omission by Arjan Singh (PW-6) in his testimony that copy of jamabandi was given to him by the accused after the bribe money was paid by the complainant to the accused is not fatal to the prosecution case. In this context, it is significant to notice that Bakhshish Singh (PW-8), who was present as shadow witness with the complainant, has stated that after the complainant gave the tainted currency notes to the accused, the latter handed over copy of revenue record i.e. copy of jamabandi to Arjan Singh. In addition to it, Kewal Krishan (PW-5), Bakhshish Singh (PW-8) and Head Constable Rajwant Singh (PW-9) have all stated that after the raid, the complainant gave the said copy of jamabandi to DSP Amar Nath at the spot and it was taken into possession vide memo Ex.P-J. From all this evidence, it is manifest that the accused had given copy of jamabandi to the complainant after the latter paid the bribe money to the accused. In the relevant register of fee, there is entry regarding delivery of copy of jamabandi by the accused to the complainant. The said entry bears 04.09.1996 as the date in the relevant column, but signatures of the complainant regarding receipt thereof were obtained on the said entry by the accused at the time of trap and the accused himself has written the date 06.09.1996 under the said signatures of the complainant. It is thus manifest that copy of jamabandi, although might have been prepared on 04.09.1996, Crl. Appeal No. 852-SB of 2002 9 was actually delivered to the complainant on 06.09.1996. As regards alleged suppression of filing of suit by Nirmal Singh against the complainant, the contention is misconceived and is not born out of by the testimony of the complainant. The complainant stated in cross-examination that he did not know if on the basis of copy of jamabandi supplied by the accused to Nirmal Singh, the latter had filed the suit against the complainant. However, the complainant did not deny the factum of filing of suit against him by Nirmal Singh, but denied knowledge of the suit being filed on the basis of copy of jamabandi. On the contrary, the complainant categorically admitted that the suit was compromised by him with Nirmal Singh. Moreover, the said suit has no relevance at all with the instant case, particularly because the said suit was instituted more than four months after the registration of the instant FIR. As regards change of number of FIR in the memos from `57' to `58', on perusal of the memos, it appears that some change has been made. However, if there was some clerical error in mentioning the FIR number in memos and if the same was corrected, it would not effect the prosecution case in any manner. As regards change of date in memo Ex.P-L, on perusal of the said memo, it cannot be said that the date had been changed from `5' to `6', although there appears to be some thickening of digit `6' in the date of said memo. However, at the top of memo, while writing the date of FIR, the date has been correctly written, without any cutting, over-writing or Crl. Appeal No. 852-SB of 2002 10 alteration. Similarly, the date of FIR as well as the date of memos have been correctly written as 06.09.1996 in all other memos. Consequently, contention regarding change of date in memo Ex.P-L cannot be accepted. The contention, that sealed nip of hand-wash of the accused was not deposited in Malkhana as there is no entry thereof in the relevant register, as stated by Head Constable Gurbhej Singh (DW-1), although apparently attractive, is in fact devoid of merit. Perusal of copy of relevant entry Ex.D-X of the aforesaid register clearly depicts that deposit of sealed nip of hand-wash of the accused has also been entered in the register. It appears that Head Constable Gurbhej Singh (DW-1), while appearing in the witness-box, either could not notice the entry of deposit of the said nip existing in the register or intentionally made the aforesaid factually incorrect statement to help the accused. Be that as it may, the fact remains that deposit of sealed nip of hand-wash of the accused has been mentioned in the relevant register, as depicted by copy of relevant entry Ex.D-X. It may also be mentioned here that Head Constable Gurcharan Singh (PW-1) was posted as Moharrir Head Constable at the relevant time and had received the case property of this case. In his affidavit (Ex.P-A), he has categorically stated that sealed nip of hand-wash of the accused was also deposited with him on 06.09.1996 along with other case property and he made entry thereof in the relevant register no.19. He was not cross- examined on this aspect nor relevant entry of register no.19 was put to him Crl. Appeal No. 852-SB of 2002 11 in cross-examination to challenge his aforesaid statement made in the affidavit of examination-in-chief. It was he, who had made the entry in register no.19, and therefore, he should have been confronted with the said entry if the accused thought that there was some discrepancy in the entry and if the accused wanted to take benefit thereof. It may, however, be repeated that in fact, there is no such discrepancy as deposit of sealed nip of hand-wash of the accused has also been mentioned in the register. From the aforesaid discussion, it emerges that the prosecution evidence is credible and is sufficient to bring home the charge against accused-appellant beyond reasonable doubt. Statements of prosecution witnesses could not be shaken or shattered in any manner in their lengthy cross-examination. Even the accused, in his statement under Section 313 Cr.P.C., did not allege any reason for his false implication. There is, therefore, no infirmity in the impugned judgment of conviction, which is accordingly affirmed. Learned counsel for the appellant prayed for reduction in sentence submitting that the accused has faced the agony of trial including this appeal for almost 15 long years. The accused has also lost his job on account of his conviction in the case. The prayer has been opposed by learned State counsel submitting that the menace of corruption should be curbed with strong hand. I have carefully considered the matter. Crl. Appeal No. 852-SB of 2002 12 Keeping in view all the circumstances including lapse of long period and loss of job by the accused, the amount involved, menace of corruption raising its ugly head, and balancing the equities, I am of the considered view that ends of justice would be met if the sentence of imprisonment is reduced from two years to one year for each of the two offences, while maintaining the sentence of fine and the sentence of imprisonment in default thereof. It is ordered accordingly. It goes without saying that both the substantive sentences of imprisonment shall run concurrently, as directed by the trial Judge. With reduction in sentence as aforesaid, the appeal stands disposed of accordingly. The appellant, who is on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence. July 28, 2011 ( L. N. MITTAL ) monika JUDGE