CRA No.369-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.369-SB of 2001 Date of Decision : 25.11.2010 Raghbir Singh Sukhija .......Appellant Versus State of Punjab .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. J S Bedi, Advocate, for the appellant. Mr. Mehardeep Singh, DAG, Punjab. **** JITENDRA CHAUHAN, J. 1. The present appellant namely Raghbir Singh Sukhija has preferred this appeal against the judgment/order dated 15.3.2001 vide which he was convicted under section 7 read with section 13(2) of the Prevention of Corruption Act and was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of `5000/- or in default of payment of fine to further undergo rigorous imprisonment for a period of six months. 2. The present case has been registered on the statement dated 7.5.1993, Ex.PD, of Hardial Singh, complainant, against Raghbir Singh Sukhija, wherein he has stated that he is the resident of Village Chauke CRA No.369-SB of 2001 -2- and is Ex Sarpanch. About ten years ago he had submitted an application in the office of Sub Divisional Officer, Punjab State Electricity Board for getting tubewell connection. He had deposited security. He had received a registered demand notice from the office by which the Test Report was demanded from him. He deposited a sum of `24,500/- vide two receipts. Thereafter he met Raghbir Singh Sukhija SDO twice or thrice in his office at Maur Mandi and requested to release his connection, but he was putting off the matter on one pretext or the other. Raghbir Singh Sukhija, accused- appellant told that he received `5000/- from other persons and he had demanded `2000/- from the complainant. On his repeated requests, the accused appellant agreed for `1000/- from the complainant to release the connection. As the complainant was reluctant to pay the bribe, he told this fact to Ajaib Singh Member Panchayat, who also advised him not to give any bribe. Both of them approached the Vigilance Office and informed him. They produced ten currency notes of `100/- of denomination each, total `1000/- which was to be paid as bribe to Raghbir Singh Sukhija. The Vigilance Staff completed the formalities. 3. Statement Ex.PD of Hardial Singh complainant was recorded and sent to the Police station through Constable Darshan Singh, PW9, on the basis of which formal FIR Ex.PD/1 was recorded in Police station Maur. 4. Thereafter, DSP constituted a team. The accused appellant was nabbed from nearby Weigh Bridge with bribe money. The details of the manner in which the accused appellant was apprehended are mentioned in the statement of Hardial Singh, PW3. 5. After completion of investigation, the challan against the accused appellant was presented. The accused appellant was charge CRA No.369-SB of 2001 -3- sheeted under section 7 read with section 13(2) of the Prevention of Corruption Act, to which he pleaded not guilty and claimed trial. 6. In order to prove its case, the prosecution examined Hardial Singh complainant PW3; Ajaib Singh, PW4, and Sukhmandar Singh, PW5, Sub Divisional Magistrate to prove the recovery of tainted money from the possession of the accused. 7. Jasvir Singh PW1 proved appointment letter, Ex.PA, and Posting Order, Ex.PB, of the accused appellant. Gurbax Singh, PW2, proved the sanction of prosecution, Ex.PC, of the accused appellant. Bachan Singh, PW6, proved application, Ex.PM, of Hardial Singh complainant and Test Report, Ex.PN, regarding tubewell connection. HC Baldev Singh, PW7, and Constable Jiya Ram, PW8, proved affidavits, Ex.PO and Ex.PQ, respectively. DSP Malkiat Singh, Investigator of this case was not produced by the prosecution. 8. The accused appellant refuted the all incriminating circumstances appearing against him in the evidence. The accused appellant took up the plea that he has been falsely implicated in this case. Hardial Singh PW, applied for electric motor connection and order for lhis motor connection was passed by him on 28.4.1993 and the same was handed over to Gurtej Singh JE who was friendly to Hardial Singh PW and was annoyed with him. Hardial Singh PW, was annoyed with the appellant as he failed his two earlier test reports which were submitted without necessary installation. After the sanction order dated 28.4.1993, the accused appellant informed Hardial Singh that actual connection will then be given to him by JE Gurtej Singh after the transformer would be available in the stock. JE Gurtej Singh wanted the transfer of the accused appellant. Hardial Singh PW, offered bribe to the accused appellant which he CRA No.369-SB of 2001 -4- refused. On 7.5.1993, the accused appellant was going to take lunch. Hardial Singh PW, along with Vigilance Officials, grappled with him near Weigh Bridge. Hardial Singh tried to put the tainted money in the pocket of the shirt of the accused appellant and during grappling the tainted money fell on the ground. The accused appellant also fell on the ground as a result of grappling during scuffle, the accused appellant sustained injuries. The accused appellant was arrested and taken to Police Station Maur, where this false case was booked against him. 9. In defence, Dr Anil Goyal, DW1, was examined who proved MLR, Ex.DA. This witness examined the accused appellant on 8.5.1993 at 1.35 PM and found two abrasions on nose and cheek and also complained of pain on left arm. 10. After appraisal of evidence, the learned Special Judge convicted the accused appellant and sentence as stated above in para no.1. 11. Learned counsel for the accused appellant submits that the prosecution has failed to prove its case against the accused appellant. The learned counsel submits that the appellant had applied for tubewell connection on 2.2.1993 vide application, Ex.PM; the accused appellant issued sanction order releasing the electric connection on 28.4.1993 and this trap was laid on 7.5.1993. The learned counsel stressed that when no work was pending with the accused appellant and the accused appellant had already sanctioned the electric connection, there was no question of demanding the bribe and payment thereof on 7.5.1993. The learned counsel assailed the findings of the learned Special Judge on the ground that it is based on misreading of evidence. DSP Malkiat Singh was not CRA No.369-SB of 2001 -5- examined by the prosecution who is the investigator of the case and great prejudice has been caused to the defence of the accused appellant. 12. On the other hand, the learned State counsel submits that the prosecution has fully proved its case by producing Hardial Singh, PW3; Ajaib Singh, PW4 and Sukhmandar Singh, PW5, Sub Divisional Judicial Magistrate. The DSP could not be examined as he had gone to America and was not available to the prosecution. The prosecution evidence was closed by order by the learned Special Judge. 13. The learned State counsel submitted that Hardial Singh, complainant, PW3, and Ajaib Singh, PW4, have supported the prosecution case. Sukhmandar Singh SDM PW also corroborated the PW3 and PW4. Hardial Singh, PW3, has stated that he had applied for the release of tube well connection to the Punjab State Electricity Board, Maur Mandi. The accused appellant demanded money. He told this fact to Ajaib Singh, PW4. Both these witnesses then contacted the Vigilance Office. Hardial Singh, PW3, produced before DSP ten currency notes of `100/- denomination each and statement of Hardial Singh PW was recorded, which was read over and explained to him. Hardial Singh signed the statement, Ex.PD, in token of its correctness. Both the witnesses have stated that the DSP had applied phenolphthalein powder to the currency notes and returned the same to Hardial Singh through memo Ex.PE attested by them and the official witness Sukhmandal Singh, the then PGO, was joined in the raiding party. Then all the three above witnesses have stated that they went to the PSEB office, where Hardial Singh and Ajaib Singh went to the office of the accused appellant, but the remaining police party stayed behind and the accused appellant met them in the office. The accused appellant said that he would be coming outside to accept the money. The accused came CRA No.369-SB of 2001 -6- outside and started going towards weigh bridge along with the PW3. Hardial Singh, PW3, was sitting on the rear seat of the scooter. The accused stopped his scooter near Weigh Bridge and demanded illegal gratification. Hardial Singh, PW3, then handed over `1000/- to the accused appellant who put the same in front pocket of his shirt and then Ajaib Singh, PW4, gave a signal to the police party. The police party reached the spot. On this the accused appellant tried to run away but fell down and received injuries on his mouth and his turban also fell down. 14. Hardial Singh, PW3, further stated that DSP disclosed and the purpose of raid to the accused appellant. Thereafter solution of water and sodium carbonate was prepared in which the accused appellant was asked to dip his hands when he did so its colour changed to light pink and then that solution was transferred into nip, Ex.P1, and sealed with the seal mark ‘MSS’ and signatory chit of Sukhmandar Singh and taken into police possession vide memo, Ex.PF, attested by PW3, PW4 and PW5. All the three witnesses further stated that then from the personal searched of the accused `1000/- in the shape of ten currency notes of `100/- denomination each were recovered from the front pocket of the shirt of the accused, the numbers of which were tallied with memo, Ex.PE. These notes were Ex.P.2 to Ex.P.11. The currency notes were taken into possession vide memo, Ex.PG, attested by the witnesses. On further search of the accused appellant, some other articles were taken into police possession vide memo, Ex.PJ. The pocket of the shirt of the accused appellant was washed in the solution which also turned pink and that solution was also transferred into another nip, Ex.P12, and sealed with seal mark ‘MSS’ and signatory chit of Sukhmandar Singh, PW5, and taken into police possession vide memo, Ex.PH, attested by the witnesses along with shirt, CRA No.369-SB of 2001 -7- Ex.P.13. The scooter of the accused appellant was also taken into police possession vide memo, Ex.PK, attested by the witnesses. This is the entire procedure adopted by the raiding party. 15. I have heard the learned counsel for the parties and have carefully perused the record with their able assistance. 16. It is well established principles of law that in a bribery case, the following ingredients must be established beyond reasonable doubt: (a) It should be firstly shown that the official was in a position to perform certain official acts of which the aggrieved party would have received some benefits; (b) Secondly, the official had agreed to perform those acts and had also agreed to accept money as reward; (c) Thirdly, the money had been paid to the official as bribe and recovered from his possession. 17. Now this court will examine as to whether the first ingredient is fulfilled or not. It is admitted fact that the accused appellant had already issued sanction order of the connection on 28.4.1993. On the date of the raid i.e. 7.5.1993, no work was pending with the accused appellant. At the time of alleged handing over of bribe money, the appellant was not in a position to do a favour or disfavour to Hardial Singh complainant, PW3. So, on that day, neither the complainant, Hardial Singh, could ask for release of electric tube well connection in his favour nor the accused appellant could demand money in lieu of work pending with him. This witness admitted in his cross-examination that on 15.9.1993 the transformer was brought by him on his tractor trolley from Mansa which was got issued by J.E. Gurtej Singh. It has been brought to the notice of this Court that the accused appellant was the sanctioning authority of the tube well connection. After the sanction order is passed and handed over to the J.E. for further compliance, the accused appellant has become functus officio. CRA No.369-SB of 2001 -8- The next steps were to be taken by the junior engineer to supply electric connection subject to availability of the transformer. Where a complainant approaches a Vigilance Officer with a prayer to nab the corrupt official by conducting a raid, it is obligatory on the part of the DSP to ensure that before proceeding to conduct a raid, he should ensure that the bribe receiver, a public servant, was in such a position of authority over him to extend some favour to the complainant. The DSP must have ensured that the public servant in fact had seized of the matter relating to the complainant and the public servant would be in a position to confer some official favour upon the latter i.e. the complainant. Most unfortunate part is that the prosecution has not produced Malkiat Singh DSP from which everything could have been elicited. So, the first important ingredient is missing on account of the fact that once the accused appellant had sanctioned the tube well connection on 28.4.1993 and had sent the same to Gurtej Singh, Junior Engineer for further necessary action to supply electric connection, there could not have been any occasion for the accused appellant to demand money from complainant Hardial Singh, PW3. The prosecution has neither joined Gurtej Singh, Junior Engineer in the investigation nor cited as a witness nor produced in court. The investigation conducted is not fair. The IO should have known the real cause as to why and by whom the electric connection of the complainant was delayed. 18. The material discrepancy in the statements of Hardial Singh, PW3, and Ajaib Singh, PW4, regarding their going towards the Weigh Bridge cannot be ignored. Hardial Singh, PW3, stated that the accused- appellant took him on his scooter and went towards Maur Mandi. It means that the appellant was driving the scooter while Hardial Singh, PW3, was CRA No.369-SB of 2001 -9- sitting on rear seat. Ajaib Singh, PW4, in his examination-in-chief, states that he (Ajaib Singh) along with Hardial Singh sat behind the accused on his scooter and started towards Maur Mandi and the police party followed them. It means, it was a triple riding. This fact cannot be forgotten by lapse of time as it was a double riding or a triple riding. Both the witnesses are contradicting each other on this point. 19. The plea of the accused-appellant taken under Section 313 Cr.P.C. that Hardial Singh along with Vigilance officials grappled with him near Weigh Bridge. Hardial Singh tried to put the tainted money in the pocket of his shirt and during grappling, tainted money fell on the ground. The appellant accused also fell on the ground as a result of grappling and scuffle, the accused-appellant received injuries. He was apprehended there, taken to Police Station, Maur Mandi, where this false was booked against him. This stand of the accused-appellant appears to be correct when this Court sees the conduct of the DSP. Ajaib Singh, PW4, stated that the DSP told them that the raid should be successful and both the witnesses were told that in case of failure of raid, the complainant would have to bear the expenses of the raid. This shows the overzealousness of the DSP in the success of the raid by all means. Ajaib Singh, PW4, further admitted in his cross-examination that they remained at the spot for about 15 to 20 minutes and thereafter, they went to the Police Station. After reaching the Police Station, statement of Hardayal Singh was recorded and the case was registered. This witness further stated that he remained standing at the gate of the Police Station and the DSP continued his writing work in the Police Station, Maur Mandi. Writing work was done in the Police Station for about one hour. The story of the prosecution as stated by Hardayal Singh, PW3, that first his statement, Ex.PD, was recorded and CRA No.369-SB of 2001 -10- then they proceeded for conducting the raid. While Ajaib Singh, PW4, stated that first the accused-appellant was apprehended, brought to the Police Station and then statement of Hardayal Singh was recorded and then case against the accused-appellant was registered. it has come in evidence that all the writing work was done in the Police Station and not at the spot. This conduct of the Investigating Officer speaks itself that the DSP was not fair towards the accused-appellant and was adamant to implicate the accused-appellant in this case. The statement of Dr. Anil Goyal, DW1, who conducted medico-legal examination vide report, Ex.DA, two abrasions on his face and complaint of pain on left forearm was noticed. The complaint of pain in the left forearm itself shows that the raiding party, which was consisting of about half a dozen of people, might have tried to put currency notes in his pocket and during that scuffle someone might have twisted the arm of the accused-appellant. 20. Hon’ble the Supreme Court, in Ram Prakash Arora Vs. State of Punjab, Criminal Appeals Reporter (SC) 344, observed as under:- “Apart from what has been stated above we cannot overlook the fact as to why the appellant demanded illegal gratification on February 15, 1968 after he had already submitted a report on February 12 by verifying at the spot that the connection be given and that the sanction had actually been accorded by the S.D.O. on February 13, 1968.” 21. Learned counsel for the accused-appellant has also pointed out some material irregularities in conducting the raid. Keeping in view the above facts and circumstances, the statement of Sukhmandar Singh, PW5, becomes insignificant. In Anand Parkash Vs. State of Haryana, 2008(2) RCR (Criminal) 335, following view has been taken:- CRA No.369-SB of 2001 -11- “15. As ruled by the Apex Court in re : Meena (Smt.) wife of Balwant Hemke v. State of Maharashtra, 2000(2) RCR (Criminal) 661 : 2000(5) SCC 21, mere recovery of currency notes and positive result of the phenolphthalein test is not enough to establish the guilt of the appellant on the basis of perfunctory nature of materials and prevaricating type of evidence.” 22. Keeping in view the above discussion, this Court is of the opinion that the prosecution has failed to prove the case against the accused-appellant beyond reasonable doubt. Resultantly, this appeal is allowed. The judgment of conviction and sentence is set aside and the accused-appellant is acquitted of the charge. His bail bonds shall stand cancelled. 25.11.2010 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to Reporter : Yes / No