Crl. Appeal No. 47-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 47-SB of 2004 Date of Decision : September 07, 2011 Hukam Chand .... Appellant Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. R. S. Sihota, Senior Advocate with Mr. Ashok Sharma, Advocate for the appellant. Mr. Anil Kumar, DAG, Haryana. * * * L. N. MITTAL, J. (Oral) : This is criminal appeal by Hukam Chand accused, who stands convicted under Section 7 and Section 13 (1) (d) (ii) of the Prevention of Corruption Act, 1988 (in short – the Act) and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/- and in default thereof, to undergo further rigorous imprisonment for three months for each of the two offences, by learned Special Judge, Faridabad, vide judgment and order dated 18.12.2003. Both the sentences were, however, ordered to run concurrently. Crl. Appeal No. 47-SB of 2004 2 Prosecution case, in brief, is that complainant Ali Sher made application Ex.P-D to Deputy Commissioner, Faridabad on 26.11.1999, who marked it to Tehsildar, Hathin and DSP, Palwal. The complainant alleged in the said application that transformer supplying power to his tubewell got burnt. He asked foreman, Hathin to replace the transformer, but the foreman demanded Rs.1,000/- as illegal gratification. Since the complainant refused to pay the same, a burnt transformer was installed. The complainant again went to the foreman, who categorically stated that the transformer would not be replaced at any cost without payment of Rs.500/- to him as bribe. The complainant took the application to Inder Singh Saini – DSP Palwal. Since office time was over, DSP asked the complainant to come on the next day. Accordingly, on 27.11.1999, the complainant went to the DSP. They then went to Tehsil office. Complainant was again sent to the foreman. On return, the complainant told that even on that day, foreman Hukam Chand demanded Rs.500/- as bribe for changing the transformer. Ali Mohd. was joined in the raiding party as shadow witness. Rajinder Singh – Naib Tehsildar was also joined in the raiding party. Demonstration was given to depict that colour of sodium carbonate solution turned pink on adding phenolphthalein powder. The complainant gave five currency notes of Rs.100/- denomination. Phenolphthalein powder was applied to the same. The notes were given back to the complainant. Numbers of the notes were recorded in memo. Necessary instructions were given to the Crl. Appeal No. 47-SB of 2004 3 complainant and the shadow witness. The raiding party went to Hathin. The complainant and the shadow witness went inside the office of Electricity Board, whereas the remaining raiding party stayed outside. The complainant, on demand of the accused, gave him the tainted currency notes. The accused put the same in right side pocket of his pants. Shadow witness flashed necessary signal to the remaining raiding party, who reached the spot. The tainted currency notes were recovered from the pocket of the accused. Numbers thereof were found to be the same as mentioned in the memo. Hand-wash and pocket-wash of pants of the accused in separate solutions of sodium carbonate turned the colour thereof into pink. Each solution was sealed in two quarter bottles. All the articles were seized by the police. Statements of witnesses were recorded. Rough site plan of the place of occurrence was prepared. The accused was arrested. Ruqa Ex.P-B was sent to Police Station, where on its basis, FIR was registered. Scaled site plan was got prepared. Sanction for prosecution of the accused was obtained. 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 of the Act. Charge under Section 7 read with Section 13 of the Act was framed against the accused, who pleaded not guilty and claimed trial. To prove its case, the prosecution examined eight witnesses. Crl. Appeal No. 47-SB of 2004 4 Anoj Kumar – Draftsman (PW-1) stated that he prepared scaled site plan. ASI Abdul Subhan (PW-2) stated that he recorded formal FIR in this case. I. C. Manchanda – retired SDO (PW-3) stated that he had given copy of application of complainant Ex.P-C and copy of re-connection order Ex.P-C/1 and copy of transfer and posting order of the accused to the police. Ali Sher – Complainant (PW-4) and Ali Mohd. (PW-7) turned hostile and denied the prosecution version. They were cross-examined by Public Prosecutor of State. The complainant stated he had made application regarding demand of bribe by the SDO and not regarding demand of bribe by accused Hukam Chand – foreman. Rajinder Singh – Tehsildar (previously Naib Tehsildar) (PW-5) and DSP Inder Singh Saini (PW-6) broadly stated according to the prosecution version. G. R. Sharma – retired Chief Engineer (PW-8) proved sanction order for prosecution of the accused. The accused in his examination under Section 313 Cr.P.C., while admitting that he was posted as foreman at Hathin, denied all other incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. In defence, the accused examined two witnesses. Crl. Appeal No. 47-SB of 2004 5 Bijender (DW-1) stated that the accused is residing near his house for last 10-12 years. The witness met the accused in his office on 27.11.1999 at about 02-02:30 P.M. and remained with him till 05:00 P.M. Nothing happened with him in his office till 05:00 P.M. Jagdish (DW-2) is colleague of the accused. He stated that he remained in the office at Hathin from 03:00 P.M. to 05:00 P.M. on 27.11.1999 and no raid was conducted in the office. Learned Special Judge, vide impugned judgment and order dated 18.12.2003, convicted and sentenced the accused, as already noticed herein before. Feeling dissatisfied, the convict has filed 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 even name of the accused was not mentioned in application Ex.P-D, which is the basis of initiation of the instant case. It was also contended that complainant Ali Sher (PW-4) and shadow witness Ali Mohd. (PW-7) have both turned hostile, and therefore, ingredient of demand and acceptance of illegal gratification, which is essential part of offence in question, is not established. It was also pointed out that sanction order for prosecution of the accused is defective as factum of demand is not mentioned therein and only factum of receiving/obtaining Rs.500/- as illegal gratification, Crl. Appeal No. 47-SB of 2004 6 otherwise than the legal remuneration, has been mentioned in the order. Reference was also made to statements of defence witnesses to contend that no raid, as alleged by prosecution, was conducted. On the other hand, learned State counsel contended that Rajinder Singh – Tehsildar (PW-5) and DSP Inder Singh Saini (PW-6) have both supported the prosecution case and their statements prove recovery of the tainted currency notes from the accused. The said recovery is also proved by hand-wash and pocket-wash of pants of the accused. It was thus argued that the accused accepted the tainted currency notes as illegal gratification and he has been rightly convicted. I have carefully considered the rival contentions. The contention that the sanction order is defective cannot be accepted. Detailed facts have been mentioned in the sanction order. Factum of accepting/obtaining Rs.500/- as illegal gratification other than legal remuneration as motive or reward for showing favour to the complainant in the discharge of official function by corrupt and illegal means and by abusing his position as public servant has been specifically mentioned in the sanction order. Consequently, it cannot be said that the sanction order is defective. G. R. Sharma – Chief Engineer, who had issued the sanction order, also appeared in the witness-box and proved the same. He stated that the entire file was put up before him. It is thus manifest that sanction order was issued after due application of mind by the competent Crl. Appeal No. 47-SB of 2004 7 authority and the same does not suffer from any infirmity. Statements of defence witnesses also cannot be accepted. Bijender (DW-1) belongs to the locality of the accused. His statement depicts that he was chance witness. Jagdish (DW-2) has not even stated that he was posted in the office at Hathin. On the other hand, he stated that he was on duty at Mindkola, which is 11 kilometers from Hathin. He deposed that Junior Engineer asked him to visit the office at Hathin for arranging vehicle, and therefore, he went to Hathin office at 03:00 P.M. His statement is not supported by any document to depict that he visited the office at Hathin. On the contrary, he deposed that he was posted at Mindkola and not at Hathin. Moreover, statements of both the defence witnesses are belied by statements of Rajinder Singh – Tehsildar (PW-5) and DSP Inder Singh Saini (PW-6). Their statements prove that raid had been conducted and the accused had been caught at the spot. On the other hand, both the defence witnesses are interested witnesses. Ali Sher (PW-4) and shadow witness Ali Mohd. (PW-7) have both turned hostile. Consequently, we are left with statements of Rajinder Singh – Tehsildar (PW-5) and DSP Inder Singh Saini (PW-6). Their statements only prove recovery of the tainted currency notes from the accused. The said recovery is also proved by hand-wash and pocket-wash of the pants of the accused. However, taking all-over view of the evidence on record, it would not be safe to uphold the conviction of the accused Crl. Appeal No. 47-SB of 2004 8 merely on the basis of recovery of tainted currency notes from the accused. Since the complainant and the shadow witness have turned hostile, demand of illegal gratification by the accused from the complainant, which is essential ingredient of the offences in question, is not proved. In this context, it becomes highly significant that in application Ex.P-D, name of the foreman, who demanded illegal gratification from the complainant, has not been mentioned. Consequently, it cannot be said that it was the accused Hukam Chand, who had demanded illegal gratification from the complainant for replacement of the transformer, when the complainant contacted the concerned foreman. The complainant has categorically stated that the accused never demanded any bribe from him. On the other hand, according to the complainant, he had contacted the concerned SDO and other officials. The complainant also stated that the SDO had demanded bribe from him. The complainant went on to state that he never contacted the accused Hukam Chand nor the accused demanded any bribe from him. The complainant also stated that he made application Ex.P-D against SDO and not against accused Hukam Chand. In view of this statement of the complainant, implicating the SDO and exculpating the accused Hukam Chand, it would be unsafe to affirm the conviction of the accused. Shadow witness Ali Mohd. stated that he had gone to Electricity Office, Hathin, where large gathering was present, but nothing was recovered in his presence from the possession of the accused nor the Crl. Appeal No. 47-SB of 2004 9 accused demanded any bribe from the complainant. There is thus no cogent evidence to prove that the accused ever demanded any illegal gratification from the complainant. There is not even an iota of evidence regarding the alleged demand. Consequently, charge under Sections 7 and 13 of the Act cannot be said to be proved. The prosecution case is suspicious and doubtful. Obviously, benefit of doubt would go to the accused. For the reasons aforesaid, I conclude that prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. The accused is granted benefit of doubt. Accordingly, the instant appeal is allowed and impugned judgment and order dated 18.12.2003 passed by learned Special Judge, Faridabad are set aside. The accused is acquitted of the charge against him. Fine amount paid by him shall be refunded to him. Bail bonds furnished by the accused stand discharged. September 07, 2011 ( L. N. MITTAL ) monika JUDGE