Criminal Appeal No. 419-SB of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 419-SB of 1991 Date of Decision: 15.04.2009 Hussan Lal son of Kala Ram son of Batana Ram, aged 35 years, Inspector, Cooperative Societies, resident of Village Paddi Khushi, District Hoshiarpur. ... Appellant Versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Raj Kumar Gupta, Advocate, for the appellant. Mr. Jaspreet Singh, Assistant Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. This appeal is directed, against the judgement of conviction, and the order of sentence dated 25.10.91, rendered by the Court of Special Judge, Ferozepur, vide which, it convicted the accused (now appellant), under Section 13(2) of the Prevention of Corruption Act, 1988, and sentenced him, to undergo rigorous imprisonment for a period of one year, and to pay a fine of Rs. 1,000/-, in default thereof, to further undergo rigorous imprisonment for a period of three months. Criminal Appeal No. 419-SB of 1991 2 2. The facts, in brief, are that one Jagtar Singh, resident of Jandwala Kharta, was Secretary of Jandwala Kharta Cooperative Society w.e.f. 01.01.89. Earlier, he was Salesman of the said Society. He was not paid the wages from 01.11.87 onwards. The Society passed a resolution, regarding his wages on 28.03.89. On the basis of the resolution, wages were to be paid to him, after his attendance report was verified, by the Inspector, Incharge of the Society. The accused was holding additional charge of the Society. As such, he was the person, who was to verify and attest the attendance report of Jagtar Singh. 3. On 04.05.89, Jagtar Singh, approached the accused, with a copy of the resolution dated 28.03.89, at his office, situated at Focal Point, Ghallu. He requested him to verify his attendance report. The accused refused to verify the report, and demanded a sum of Rs. 2,000/-, as gratification, other than legal remuneration, for this purpose. Jagtar Singh, told the accused that he was a poor person and could not pay this amount. On further request, made by Jagtar Singh, the accused agreed to verify the report of his attendance, after obtaining a sum of Rs. 1,000/-, as gratification, other than legal remuneration. Since Jagtar Singh, was not ready to pay the gratification, other than legal remuneration, to the accused, he made an excuse, that the amount was not readily available with him. The accused told Jagtar Singh, to contact him, in the office of Marketing Societies, Abohar, with attestation of attendance report, from the Sub Inspector of the area, and Criminal Appeal No. 419-SB of 1991 3 he should also bring a sum of Rs. 1,000/-, on that day, for payment to him, as gratification, other than legal remuneration, for getting the attendance report verified from him. Jagtar Singh, then approached the Vigilance Department, and narrated the aforesaid facts. His statement was recorded by Tara Chand Sharma, Inspector, on 05.05.89. Jagtar Singh, then produced ten currency notes of Rs. 100/- each, before Inspector Tara Chand Sharma. The numbers of the same, were noted down by Tara Chand Sharma, in a separate memo. Phenol-pathelein powder was applied to the aforesaid currency notes. Thereafter, the aforesaid tainted currency notes, were handed over to Jagtar Singh, with a direction to hand over the same to the accused, on his demand. A memo regarding entrustment of the tainted currency notes to Jagtar Singh, was prepared. Babu Singh, Inspector Vigilance, was appointed as a shadow witness, to watch and listen the exchange of talk between Jagtar Singh, and the accused, and watch the payment of amount of Rs. 1,000/- by the former to the latter as gratification, other than legal remuneration. He was also directed that after the payment of the aforesaid amount, was made by Jagtar Singh, to the accused, the requisite signal should be given by him. Thereafter Tara Chand Sharma, Inspector, organized a raiding party, headed by him, and consisting of Jagtar Singh, complainant, Babu Singh, shadow witness, and other Police officials. Thereafter, the Vigilance party, proceeded towards the Marketing Societies office, Abohar. The party then went to the office of Sewerage Board and Ashok Kumar, Junior Engineer, was Criminal Appeal No. 419-SB of 1991 4 associated with it. The statement of Jagtar Singh, was sent through Constable Harbhajan Singh, for the registration of case, on the basis whereof, the case was registered. After a sum of Rs. 1 ,000/-, on demand was paid by Jagtar Singh, to the accused, as gratification, other than legal remuneration, and the requisite signal was given by Babu Singh, shadow witness, the remaining members of the raiding party apprehended the accused. Inspector Tara Chand Sharma, disclosed his identity to the accused, as Vigilance Inspector. A glass containing water was arranged. Sodium-bicarbonate was mixed therein, as a result whereof, a solution was prepared. In the first instance, Ashok Kumar, aforesaid, prosecution witness, was made to dip his hands, in the said solution. The colour of the solution did not change. Thereafter, the hands of the accused were got dipped, in the said solution, as a result whereof, the colour thereof, turned into light pinkish. The solution was transferred, into a nip P1, which was sealed with the seal bearing impression “TCS' and the signatory chit of Ashok Kumar, was affixed thereon. It was taken into possession, vide memo exhibit PB. Tara Chand Sharma, Inspector, offered himself, for search to the accused. Thereafter, he searched the person of the accused. Tainted currency notes of Rs. 1,000/-, from the right pocket of the pant, worn by the accused, were recovered. The numbers of the tainted currency notes were compared with the numbers, already noted in memo PF, and the same tallied. The tainted currency notes P3 to P12, were taken into possession, vide memo PJ, attested by the witnesses. On further search Criminal Appeal No. 419-SB of 1991 5 of the person of the accused, Rs. 2896/-, a purse, and a wrist watch were recovered. The same were taken into possession, vide memo exhibit PK. Thereafter, the accused, was made to put off his pant. The right side pocket of the pant, worn by the accused, was reversed. It was dipped into a freshly prepared solution, in the aforesaid manner, as a result whereof, the colour thereof, changed into light pinkish. The solution was transferred, into a nip exhibit P2, which was sealed with the seal bearing impression 'TCS'. The signatory chit of Ashok Kumar, was also affixed. The pant was converted into a parcel and sealed with the seal bearing impression 'TCS'. The signatory chit of Ashok Kumar, was also affixed. The sealed parcel of the pant exhibit P13, was taken into possession, vide memo exhibit PH. On search of Jagtar Singh, nothing was recovered. Memo PL was prepared. Copy of the resolution PN and attendance certificate PQ, were taken into possession, vide memo PM, from the table of the accused. The rough site plan PR, was prepared, with correct marginal notes. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, and on receipt of sanction PA, the accused was challaned. 4. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 13(2) of the Prevention of Corruption Act, 1988, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Dalbir Criminal Appeal No. 419-SB of 1991 6 Singh, Assistant, Office of Registrar Cooperative Societies, Chandigarh (PW1), who proved sanction PA, signed by Mr. G.S. Cheema, Registrar, Cooperative Societies, and identified his signatures, Kamal Kishore, Accountant, Office of the Assistant Registrar, Cooperative Societies, Ferozepur (PW2), who proved copy of the order PB, vide which, Hussan Lal, was appointed as Inspector Cooperative Societies,as also the posting order PC, and photostat copy of his service book PD, Jagtar Singh (PW3), the complainant, in this case, Babu Singh, Vigilance Inspector (PW4), the shadow witness, and Tara Chand (PW5), at the relevant time, posted as Vigilance Inspector, and thereafter promoted as Deputy Superintendent, the Investigating Officer. Thereafter, the Additional Public Prosecutor, for the State, after tendering, into evidence, exhibits PS and PT, affidavits of Moharrir Head Constable Kashmiri Lal, and Constable Sukhbir Singh, respectively, as also PU, report of the Forensic Science Laboratory, closed the prosecution evidence. 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. It was admitted by him, that on 05.05.89, he was working as Inspector, Cooperative Societies, Focal Point, Ghallu, with additional charge of Jandwala Kharta Cooperative Society. He also admitted that Jagtar Singh, complainant, was working as Salesman of Cooperative Society, Jandwala Kharta. He also admitted that he had also been Criminal Appeal No. 419-SB of 1991 7 working as Secretary of the said Society since 01.01.89. He denied the remaining allegations and took up the following plea:- “This is a false case. On 05.05.89, I was residing at Abohar and had to attend the meeting of Joint Registrar at Abohar at 10 AM. I was proceeding towards the office of Cooperative Marketing Society from my residential house and on my way I met Sher Singh, Sub Inspector of Cooperative Society, Jandwala Mira Sangla. When we both were about 10 yards short of IFFCO office, Jagtar Singh PW tried to give me some money in the presence of S.I. Sher Singh and told me to look after the Joint Registrar. I refused to accept that amount. Jagtar Singh tried to put that money in the right side pocket of my pant. I caught hold of his arm and when we were in that process, I was apprehended by the Vigilance Officials. The Vigilance Officials took me to City Abohar, Police Station. They were about 8-10 persons in number. This happened at about 9.45 AM. On 04.05.89, I never went to Ghallu Focal Point. On that day, I had visited Killianwali Cooperative Society at 8.30 AM in the presence of Dalbir Singh Sub Inspector. We returned back at about 3/3.30 PM. My presence has been recorded in the register of Killianwali Cooperative Society. I can produce the attested copy of the said entry. Additional charge of Jandwala Kharta Society was given to me. This Society was suffering from embezzlement of huge amounts. I had asked for the records from SI Udik Chand and asked him to take records of the Society from Gurdev Singh and Jagtar Singh. I had also informed him about my intention of verifying the Society records on 17.05.89 with a view to get the cases registered against them. Jagtar Singh had noted that direction on 03.05.89 and Udik Chand had also noted it. After I was arrested on 05.05.89, audit of the Society was conducted and Jagtar Singh was found to have drawn Rs. 7030/-, as extra salary and case was registered against them. This case has been Criminal Appeal No. 419-SB of 1991 8 made against me because of that case on account of enmity. I am innocent.” 7. The accused examined Vinod Kumar Grover, Stenographer (DW1), Krishan Parkash, Clerk (DW2), Dalbir Singh, Inspector (PW3), and Sher Singh, Sub Inspector, Cooperative Society (DW4). He also tendered into evidence resolution dated 04.05.89, exhibit D2, copies of the first information report D3 and D4, photostat copy of the special audit report D12, copy of the order exhibit D13, and copy of the plaint D14. Thereafter, the accused, closed the defence evidence. 8. 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. 9. Feeling aggrieved, the instant appeal, was filed by the appellant. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the appellant, submitted that Jagtar Singh, could not be said to be a trustworthy witness, on whose testimony, reliance could be placed. He further submitted that the first information report, copy whereof, is exhibit D3, under Sections 408, 409, 420,467, 468, 471, 379, and 120-B of the Indian Penal Code, was registered, against him, in the year 1987. He further submitted that another first information report, copy whereof, is D4, was registered, against Jagtar Singh. It was further submitted that the inquiry was being held, against Jagtar Singh, complainant, by the accused, and with a view to wriggle Criminal Appeal No. 419-SB of 1991 9 out of the same, he got manipulated the trap. He further submitted that, as such, Jagtar Singh, was inimically disposed towards the accused. He further submitted that, on account of the aforesaid criminal cases, pending against Jagtar Singh, his evidence could not be acted upon to record conviction. It was further submitted by him, that even the accused got suspended the aforesaid Society. It was further submitted by him, that the accused was not present in the office of the Society, on 04.05.89, but was present in Killianwali Society, on that day. He further submitted that even the evidence of Babu Singh, Vigilance Inspector, who was appointed as shadow witness, and of Tara Chand Sharma, Vigilance Inspector, the Investigating Officer, could not be said to be reliable, as they being trap witnesses, could be said to be highly interested, in the success of the same (trap). He further submitted that independent witness Ashok Kumar, who was joined from the Sewerage Board, was not examined by the prosecution and, as such, an adverse inference, could be drawn, against the prosecution that had he been examined, he would not have supported the case of the prosecution. He further submitted that the accused had no motive to demand and accept gratification, other than legal remuneration, from Jagtar Singh. He further submitted that the trial Court, was wrong, in ignoring the defence version, set up by the accused, and duly proved through defence evidence. He also submitted that the sanction was invalid. He further submitted that the trial Court, was wrong, in recording conviction and awarding sentence. Criminal Appeal No. 419-SB of 1991 10 12. On the other hand, the Counsel for the respondent submitted that the mere fact that, in the past, two criminal cases, referred to above, were registered against Jagtar Singh, did not mean that he could not be said to be a creditworthy witness. He further submitted that Jagtar Singh, was not inimically disposed towards the accused, nor did he get manipulated the trap, against the accused. He further submitted that Hussan Lal, accused, was having a motive to demand and accept gratification, other than legal remuneration, from Jagtar Singh, as he was to verify his attendance report, as Salesman and Secretary, in the Society, and only thereafter, he could get arrears of his wages. He further submitted that, no doubt, trap witnesses are interested witnesses, yet their evidence, cannot be discarded merely, on account of that reason. He further submitted that the evidence of the trap witnesses, was duly corroborated, through other items of circumstantial evidence, and the trial Court, was right, in relying upon the same. He further submitted that the version, set up by the accused, and the evidence, produced by him, in support of that version, were duly considered and discussed by the trial Court, and, ultimately, the same were found to be not reliable and rejected. He further submitted that the trial Court, was right, in recording conviction and awarding sentence. 13. The case of the prosecution was unfolded by Jagtar Singh, who was admittedly Secretary in Jandwala Kharta Cooperative Society. It was stated by him, that he had not been paid salary from 01.11.87. Criminal Appeal No. 419-SB of 1991 11 His evidence was further to the effect that Hussan Lal, accused, being Inspector of the Society, was incharge of the aforesaid Society, and it was he, who was to verify his attendance report, in the Society, in pursuance of the resolution dated 28.03.89, and only thereafter, the payment of salary, was to be made, to him (Jagtar Singh). His evidence further proceeded, in the manner, that on 04.05.89, he met the accused, and requested him, to verify his attendance report. He further stated that the accused demanded a sum of Rs. 2,000/-, as gratification, other than legal remuneration, for verification of his attendance report. It was further stated by him, that since he was unable to meet the heavy demand, raised by the accused, he made a request, to him, and, ultimately, he (accused) agreed to obtain a sum of Rs. 1,000/-, as gratification, other than legal remuneration, for the aforesaid purpose. It was further stated by him, that the accused told him, that he (Jagtar Singh), should come to him, on the next day, i.e. 05.05.89, with the said amount, alongwith the verification of attendance report from the Sub Inspector. It was further stated by him, that on 05.05.89, he had gone to Sub Inspector, Cooperative Societies Udik Chand, to get the verification certificate of attendance. It was further stated by him, that he got the attendance report verified from him. He further stated that since he was not ready to pay gratification, other than legal remuneration, to the accused, for the aforesaid purpose, he approached the Vigilance Department, and made a statement, detailing the aforesaid facts, which was recorded and read over and explained to Criminal Appeal No. 419-SB of 1991 12 him. From his evidence, it was proved, that the tainted currency notes of Rs. 1,000/-, were also handed over by him, to Tara Chand Sharma, Deputy Superintendent, Vigilance, who applied phenol-pathelein powder, to the same, and entrusted the same, to him, with a direction to hand over the same to the accused, on demand, whereas, Babu Singh, Inspector, Vigilance, was appointed, as shadow witness. From his evidence, it was also proved that, on demand, he paid a sum of Rs. 1,000/-, as gratification, other than legal remuneration, to the accused, on 05.05.89, in the presence of Babu Singh, shadow witness, whereafter, the latter gave the requisite signal to the raiding party, and the accused was arrested and recovery of tainted currency notes was effected from him. The statement of Jagtar Singh, PW3, was duly corroborated through the evidence of Babu Singh, Inspector Vigilance, PW4, who was appointed as shadow witness, in all material particulars. Further corroboration to the ocular evidence, was provided through the hand-wash and the pocket-wash of the accused, as a result whereof, the solution turned into light pinkish. Still further corroboration was provided to the ocular version, through the factum, that the tainted currency notes, the numbers whereof, had already been noted, in a separate memo, were recovered from the accused, and he was unable to furnish any explanation, as to how, the same came into his possession, which were a short while ago, in the possession of Jagtar Singh. Still further corroboration to the ocular version, was provided through exhibit PU, report of the Forensic Science Laboratory, according to Criminal Appeal No. 419-SB of 1991 13 which, the hand-wash and pocket-wash of the accused, were chemically and physically examined separately. On the basis of colour test, litmus paper test, PH test, acid test, flame test, and clorimetric analysis data, it was concluded that sodium ions, carbonate ions, and phenol-pathelein, were present, in the contents of both hand-wash and the pocket-wash. The prosecution witnesses were thoroughly cross-examined, but nothing of consequence, could be got elicited from their mouth, which could go to discredit their evidence. In Hans Raj Vs. State of Haryana (1997(3) RCR 427, the principle of law, laid down, was to the effect, that the chemical test is a corroborative piece of evidence. In Roop Singh Vs. State of Punjab AIR 1991 (SC) 1125, it was held that where the accused was not able to explain the presence of phenol-pathelein powder, on his hands, his conviction, under the relevant Sections, was legally sustainable. There was no reason, on the part of Jagtar Singh, Babu Singh, and Inspector Tara Chand Sharma, to falsely implicate the accused, in the instant case. No doubt, the accused, has set up a plea, that Jagtar Singh, was inimically disposed towards him, yet the same was not proved, as would be discussed, in the subsequent paragraphs. The trial Court, was, thus, right in holding that the evidence of the prosecution witnesses, duly corroborated, through other circumstantial evidence, was cogent, convincing, reliable, and trustworthy. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. Coming to the credibility of Jagtar Singh, it may be stated Criminal Appeal No. 419-SB of 1991 14 here, that the same, could not be successfully, challenged by the accused. D3 is copy of the first information report No. 271, dated 30.06.87, pertaining to the allegations dated 30.06.87. This first information report, was registered, on the basis of the letter, dated 28.10.89, from the office of the Senior Superintendent of Police, Ferozepur. The allegations therein, were regarding the acts of criminal intent, attributed to Balbir Singh, Balwinder Singh, and Satyavart Rattan. No allegation of any criminal intent, was against Jagtar Singh. D4 is another copy of the first information report, pertaining to the acts, prior to 14.09.89. This first information report, was also registered, on the basis of the letter of the Senior Superintendent of Police, dated 28.01.91. This first information report, against Jagtar Singh, was registered, much later than the present first information report, was registered, against the accused. As stated above, in the first information report exhibit D3, there was no allegation, against Jagtar Singh, and the same related to the year 1987. The mere fact that, on the basis of the letters of the Senior Superintendent of Police, Ferozepur, the first information report, copy of which is D4, was registered, against the accused, did not mean, that he was inimically disposed towards the accused, in any manner. Even registration of criminal cases, prior to the relevant occurrence,or after the relevant occurrence, against a witness, cannot, in any manner, affect his credibility, so far as the case, in which, he is a witness is concerned. If his evidence is disbelieved merely, on the ground, that one or two criminal cases prior to or after Criminal Appeal No. 419-SB of 1991 15 the occurrence, in which, he was a witness were registered, against him, then there would be no person, in the society, who could be believed. During the course of one's life, sometimes correct and sometimes false criminal cases are registered, against him, for a variety of reasons. If such registration of cases are taken into consideration, then no credibility can be attached to the evidence of any witness. Every person is a competent witness, according to the provisions of law. Jagtar Singh, was a competent witness. As stated above, the registration of the aforesaid first information report, against him, one much before the present case, and the other, after the present case, did not at all affect his credibility or reliability. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 15. The accused placed, on record, D1, letter written by him, to Udik Chand, directing him, that he (accused) wanted to inspect the Society, on 17.05.89. He was also directed that the records be taken from Jagtar Singh, and others. Udik Chand, was told that, in case, he failed to obtain the records, action could be taken, against him. Exhibit D1/A, is the endorsement of Jagtar Singh, showing that he had noted the contents of the letter, on 03.05.89. The perusal of this letter, does not indicate, that any action was contemplated against Jagtar Singh. The action against Udik Chand, only was to be taken, in case, he failed to obtain the record, as directed, in the letter, aforesaid. D9