Crl.Appeal No.2002-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.2002-SB of 2002 Date of decision:28.07.2010 Sanjiv Kumar ...Appellant Versus State of Haryana ...Respondent CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.J.S.Bedi, Advocate for the appellant. Mr.Kshitij Sharma, AAG, Haryana. JITENDRA CHAUHAN, J. 1. The present appeal is directed against the judgment and order dated 2.12.2002 passed by the Additional Sessions Judge, Jagadhri, (for short `Trial Court') whereby the accused–appellant has been convicted for the offences punishable under Sections 7 and 13 (i) (d) of the Prevention of Corruption Act, 1988 (for short `the Act') and sentenced as under:- (i) To undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- under Section 7 of the Act; Crl.Appeal No.2002-SB of 2002 2 (ii) To further undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- for the offence under Section 13(i) (d) of the Act; AND In default of payment of fine, to further undergo rigorous imprisonment for three months. Both the sentences were ordered to run concurrently. 2. The Trial Court noticed the facts of the present case in para nos. 1, 2 and 3 of the impugned judgment, which are as under:- “1. On 23.6.1997 Jasmer Singh (PW11) was assaulted by some persons in his village. Same day at 8.50 a.m. he was taken to Primary Health Centre, Bilaspur by Dalip Singh, where Dr. Sanjiv Kumar (accused) was on duty. The accused demanded from Dalip Singh Rs.500/- for issuance of MLR and to make it a case under Section 324 IPC. Dalip was having Rs.300/- only. He gave that amount to the accused. The accused issued the MLR and sent the same to concerned Police Station for information. Next date i.e. on 24.6.1997 the accused demanded balance amount of Rs.200/- and threatened to spoil the case and to discharge the injured if amount was not paid. 2. The complainant Mange Ram who was the nephew of the injured moved an application Ex. PF before the Superintendent of Police of Yamuna Nagar to take action against the accused. Superintendent of Police called in his office Sh.Rattan Singh DSP Headquarter, and Sh.Raj Kumar Garg City Magistrate Crl.Appeal No.2002-SB of 2002 3 and directed them to conduct a raid. The complainant handed over to the DSP two currency notes of the denomination of Rs.100/- Ex.P1 and Ex.PW2. DSP and the City Magistrate, put their initials on each note and handed over the same to the complainant with the direction to hand over those notes to the accused on demand, vide memo Ex.PA. Constable Raj Kumar was appointed as shadow witness with the direction to follow the complainant and to make a signal to the raiding party after passing of the money. 3. The raiding party proceeded for Primary Health Centre Bilaspur. The complainant was sent inside the hospital to give the tainted notes to the accused. Shadow witness was stationed near the gate of the hospital. Remaining members of the raiding party stayed outside the gate of the hospital. When the complainant entered the hospital, the accused was not available there. He had gone to his house located in the same compound. The complainant then went to his house and brought him to the hospital and gave him both the tainted notes near the gate of the hospital. The accused at that time was wearing a kurta paijama. He put the tainted notes into the pocket of the kurta. Shadow witness made a signal to the raiding party. Raiding party reached at the spot and nabbed the accused. Both the currency notes were recovered from the pocket of his kurta which were taken into possession vide memo Ex.PB. Rough site plan of the place of raid Ex.PJ was Crl.Appeal No.2002-SB of 2002 4 drawn. The statement of the complainant Ex.PF was sent to Police Station Bilaspur by the DSP for registration of a case with his endorsement Ex.PF/2. On the basis of that FIR Ex.PF/3 was drawn by Zile Singh, ASI....” 3. The accused/appellant was charge sheeted under Section 7 read with Section 13 of the Act, to which he pleaded not guilty and claimed trial. 4. To prove its case, the prosecution examined as many as ten witnesses, namely, Raj Kumar Garg, S.D.M., Ambala as PW1; Constable Raj Kumar as PW2; S.I. Inder Singh as PW3; Constable Gulzar Singh as PW4; Mrs. Amita Sethi, Staff Nurse, PHC Bilaspur as PW5; Mange Ram, Clerk as PW6; Constable Mulakh Raj as PW7; Karan Singh Dalal, Assistant Health-I, Branch, Haryana Civil Secretariat, Chandigarh, as PW8; DSP Rattan Singh as PW9 and Jasmer Singh as PW10. However, Dalip Singh was given up by the prosecution as having been won over by the accused. 5. Complainant-Mange Ram, PW6, deposed that on 23.6.1997, Dalip Singh went to the hospital for admission of injured Jasmer Singh, who is his maternal uncle. The accused/appellant was the doctor on duty and demanded Rs.500/- for admission of injured Jasmer Singh, PW11 and issuance of MLR to make out a case under Section 324 IPC. He further deposed that Dalip Singh was having Rs.300/- only and gave that amount to the accused/appellant before his reaching there. Next date i.e. on 24.6.1997 the accused asked them to pay balance amount of Rs.200/- and threatened to discharge the injured if the remaining amount was not paid. On that, he moved an application, Exhibit PF before the Superintendent of Police, Yamunanagar, to take action against the accused/appellant. The Crl.Appeal No.2002-SB of 2002 5 Superintendent of Police, Yamuna Nagar called the DSP Sh.Rattan Singh, PW-9 and Raj Kumar Garg, City Magistrate, PW1 in his office. He handed over two currency notes of denomination of Rs.100/- each to the raiding party and the same were returned to him after putting initials of DSP Sh.Rattan Singh and Raj Kumar Garg, City Magistrate with a direction to make a signal to shadow witness after passing of the money to the accused. The raiding party stood outside the gate of the hospital, whereas shadow witness was deputed at the gate of the hospital. Then he (complainant) went inside the hospital but at that time the accused was not available there. Thereafter he visited the house of the accused and brought him from his house. He gave tainted notes to the accused near the gate of the hospital. After receiving the signal from C. Raj Kumar, PW2, the raiding party reached there and nabbed the accused/appellant. Both the tainted notes were recovered from the pocket of his kurta, which were taken into possession, vide memo Ex.PB. 6. PW2-C. Raj Kumar, deposed that he joined the raiding party as a shadow witness. He corroborated the version given by Mange Ram, PW6 (complainant). 7. PW3-Raj Kumar Garg deposed that Mange Ram, PW6, (complainant) and the shadow witness performed their duties as per the directions of the raiding party and both the tainted notes were recovered from the pocket of the kurta of the accused/appellant. During his cross- examination, he stated that the shadow witness was a public man, who had come with the complainant, Mange Ram, PW6. 8. PW10-Jasmer Singh did not support the case of the prosecution Crl.Appeal No.2002-SB of 2002 6 and was declared hostile. 9. After completion of the deposition made by the prosecution, the accused was examined under Section 313 of the Code of Criminal Procedure. The accused denied the circumstances appearing against him in prosecution evidence and pleaded innocence. In defence, he examined Dinesh Singh, Radiographer as DW1; Sandeep Jain as DW2 and Dr.Prem Chand as DW3. 10. After hearing both the parties, the learned Trial Court convicted and sentenced the accused as noticed at the outset of this judgment. 11. Feeling aggrieved by the order of the learned Trial Court, the appellant has preferred this appeal. The present appeal was admitted on 17.12.2002 by this Court. 12. Learned counsel has argued that there is no independent witness to the alleged demand and acceptance except the complainant, who is the most interested witness. 13. Learned counsel has further argued that the currency notes allegedly given to the appellant were not treated with “phenolphthalein” powder. There is no explanation by the prosecution for this material omission. The learned counsel submits that this fact itself is sufficient to conclude that the appellant has been falsely roped in the present case at the behest of Mange Ram, who wanted the appellant to record the injury suffered by Jasmer Singh under Section 326 IPC. The appellant is victim of conspiracy hatched by complainant-Mange Ram. 14. Learned counsel has further argued that as per the case of the prosecution, the alleged bribe was demanded for preparing MLR of injured Crl.Appeal No.2002-SB of 2002 7 Jasmer Singh, PW10. The MLR was prepared on 23.6.1997 and ruqa was sent to the police giving necessary intimation regarding admission of the injured in the hospital on the same day. Therefore, the learned counsel has argued that as the MLR was already prepared on 23.6.1997 so there was no occasion for demanding money on 24.6.1997 for the purpose of preparing MLR. 15. It is further contended that none of the other official witnesses, namely, Constable Raj Kumar, PW2 and SDM Raj Kumar Garg, PW1, including DSP Rattan Singh, PW9, offered themselves for search of their person before conducting the search of the appellant. This makes the recovery of the notes bad and casts a doubt on the prosecution case in its entirety. 16. Learned counsel has next argued that in the present case, Constable Raj Kumar, PW2, was made a shadow witness which severely taints the prosecution case. It is further submitted that as per the statement of SDM Raj Kumar Garg, PW2, the shadow witness accompanying the complainant-Mange Ram was Dalip Singh. However, as per the prosecution story, the shadow witness was Constable Raj Kumar. Dalip Singh, the maternal uncle of Jasmer Singh, who had accompanied him to the hospital, was not examined. Therefore, there are material contradictions in the statement of SDM Raj Kumar Garg, PW1, with regard to identity of the independent witness. 17. Learned counsel has lastly argued that as per the case of the prosecution, the complainant went to the house of the appellant. There was no one else present in the house of the appellant. If the appellant wanted Crl.Appeal No.2002-SB of 2002 8 some bribe, he would have demanded and taken it at his residence itself. He would not have come in a public place to receive the meager amount of Rs.200/-. 18. Learned counsel has further stated that the appellant has taken a categoric stand that he prepared the MLR of Jasmer Singh on 23.6.1997 itself and sent the same along with ruqa on the same day to the Police Station. On the next day, one of the relatives of Jasmer Singh i.e. Mange Ram, approached the appellant for giving opinion regarding the injury of Jasmer Singh being grievous in nature, to which the appellant refused. The injured-Jasmer Singh was having simple injury with sharp weapon. Therefore, the appellant rightly prepared the MLR depicting the injury under Section 324 IPC. The appellant also referred the injured to the Civil Hospital, Jagadhri for X-ray of his injuries. Therefore, there was no occasion for him to demand any amount on 24.6.1997. 19. On the other hand, learned counsel for the State has argued that the case of the prosecution is proved beyond reasonable doubt. If an independent witness was not involved, that does not render the case of the prosecution doubtful. 20. I have heard learned counsel for the parties and perused the record. 21. As per the statement of Constable Raj Kumar, PW2, the shadow witness, on getting a signal from Mange Ram, gave a signal to the raiding party. It is nowhere mentioned in the statement of this witness that the demand was raised by the appellant in his presence. He has himself not heard the accused-appellant raising the demand. He only gave signal to the Crl.Appeal No.2002-SB of 2002 9 raiding party after receiving the signal from Mange Ram-complainant. Therefore, from the record, it is proved that the present witness did not hear any demand of bribe allegedly raised by the appellant. Therefore, there is no independent witness to the demand of illegal gratification of Rs.200/- except the complainant himself who is an interested party. Similar question has been dealt with by the Hon'ble Supreme Court in Raghbir Singh V. State of Punjab, 1976 CRI. L.J. 172. Relevant portion of the judgment reads as under:- “8. The prosecution case also suffers from another serious infirmity and it is that it rests entirely on the evidence of witnesses who are either interested witnesses or police witnesses. Jagdish Raj was clearly an interested witness because he was concerned in laying the trap for the appellant. Arjun Das was also an interested witness as he was a relative of Jagdish Raj. Jagdish Raj admitted in his evidence that Arjun Das was his relative and so did Arjun Das. It is a little interesting to know that Arjun Das was not secured as a witness to the raid by Inspector Hardas Singh. He was picked up by Jagdish Raj when he was going to meet his sister in Putlighar and taken to the Special Enquiry Agency. His evidence was that he had taken leave on that day from his work as he wanted to meet his sister. But curiously enough, he allowed himself to be persuaded to go as a witness of the raid and even after the raid was over at about 3 p.m. he did not go to meet his sister in Putlighar. It appears to us extremely Crl.Appeal No.2002-SB of 2002 10 improbable that Arjun Das was really going to meet his sister when he was diverted by Jagdish Raj and taken as a member of the raiding party. If that was the mission for which he had taken leave, he would not have gone with Jagdish Raj and even if he did, he would have gone to meet his sister after the raid was over. It seems to us that Arjun Das had taken leave for the purpose of assisting Jagdish Raj in arranging the raid and he was clearly and indubitably an interested witness. Now it is significant that the only two persons who witnessed the actual passing of bribe were Jagdish Raj and Arjun Das Inspector Hardas Singh knew very well that Arjun Das was brought by Jagdish Raj and presumably he was connected with Jagdish Raj and could not therefore be regarded as an independent person even so he did not care to secure an independent person to act as a witness of the raid. In fact one Mohan Lal had acted as a witness when Jagdish Raj gave information to Inspector Hardas Singh in regard to the demand for bribe made by the appellant and though he was an independent person he was not taken as a witness by Inspector Hardas Singh when the latter went for the purpose of the raid. Instead one Makhan who was a sweeper in the whole time employment of the police was taken as a witness. But even he was not sent along with Jagdish Raj to witness the passing of the bribe. It is indeed difficult to see how Makhan could possibly be regarded as an independent witness. It is indeed a sad commentary on the functioning of Crl.Appeal No.2002-SB of 2002 11 the anti-corruption department in this case that the only safeguard against false implication in the offence of bribery which is provided by the presence of independent and respectable witnesses was completely ignored and two witnesses were taken, one of whom was a relative of Jagdish Raj and the other a sweeper in the whole time employment of the police. We must take this opportunity of impressing on the officers functioning in the anti-corruption department to insist on observing this safeguard as zealously and scrupulously as possible for the protection of public servants against whom a trap may have to be laid. They must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. We cannot in the present case, rely on the evidence of Jagdish Raj and Arjun Das for the purpose of holding that a sum of Rs.50/- was paid by Jagdish Raj to the appellant by way of bribe. 9. Even when the appellant came down to the ground floor from his room after allegedly taking the bribe of Rs.50/- and a search was made of his person, the persons who witnessed this search were not independent and respectable witnesses. Inspector Hardas Singh and Sub-Inspector Baldev Singh were police witnesses. The other three were Jagdish Raj, Arjun Das Crl.Appeal No.2002-SB of 2002 12 and Makhan who were all interested witnesses. Makhan, in fact, was not even called to give evidence on behalf of the prosecution. He was dropped on the ground that he was not a man of status. Now this is also a distressing feature of the present case. We are aiming to build a just and egalitarian social order where there will be equality of status and opportunity and it is indeed difficult to see how in such social order a sweeper who is earning his livelihood by doing honest labour can be regarded as a man of no status. Be that as it may, the fact remains that there was no independent person to witness the search of the person of the appellant and the seizure of five marked currency notes of Rs.10/- each from his person. It is a matter of regret that the prosecution did not choose to examine Gurdev Singh, Excise & Taxation Officer, though, according to the evidence of Jagdish Raj, Arjun Das, Inspector Hardas Singh and Sub-Inspector Baldev Singh, Gurdev Singh happened to come there before the person of the appellant was searched and he was a witness to the search. The only reason given by the prosecution for not examining Gurdev Singh was that he declined to attest the search memo. But that is hardly an explanation which can carry conviction. Gurdev Singh was a highly placed officer and even though he was the Head of the Department in which the appellant was working, we can safely assume that, if summoned, he would have told the truth, even if it hurt the appellant. We do not Crl.Appeal No.2002-SB of 2002 13 think it was fair on the part of the High Court to observe that Gurdev Singh's reluctance to support the case of the appellant, or his declining to become a prosecution witness against the appellant, who was his subordinate or a member of his staff, was neither exception nor unusual. Gurdev Singh was the only independent person who could have deposed to what happened at the time when the search of the person of the appellant was taken and it is unfortunate that the prosecution did not summon him to give evidence. There were also fifteen to twenty other persons who were assembled there at the time of the search and any one of them could have been asked to be a witness to the search. But this opportunity was also not availed of by the police. There is also one other small circumstance which is rather significant and it tends to show that the appellant did not accept any monies from Jagdish Raj as alleged by the prosecution. When Inspector Hardas Singh arrested the appellant for the purpose of searching his person, the appellant enquired from his as to why he was being arrested. That is hardly a question the appellant would have asked if he had accepted bribe from Jagdish Raj because then he would have known that he had been trapped. The evidence in regard to the search of the person of the appellant and the seizure of five marked currency notes from him is, in the context of the other facts and circumstances of the case, not such as to inspire confidence and cannot be implicitly accepted.” Crl.Appeal No.2002-SB of 2002 14 22. The trap witnesses are most interested witnesses, therefore, some independent evidence by way of independent witness ought to have been made on the part of raiding part. In the absence of the independent witness, the prosecution case becomes doubtful. This Court, in Gurdial Singh V. State of Punjab, 2010(2) RCR (Criminal), has held as under:- “14. The evidence further reveals that both Jarnail Singh and Balkar Singh are contradictory to their statements with regard to the placing of money. The complainant states that the accused received the money and put the same in the pocket and thereafter he took it from the pocket and started counting the same whereas Balkar Singh (PW4) states that the money was still in the hands of the accused when the police party apprehended him. DSP Sukhdev Singh did not got washed the shirt where the money is stated to have been put. Anyway, had the money been put in the pocket then it would have touched the currency notes to the tune of Rs.340/- which were recovered from his pocket, but the same were not dripped into the water so as to know that the said currency notes when dipped, the colour became pink. Furthermore, the conduct of both Jarnail Singh and Balkar Singh is not above board. Both are interested witnesses in the success of the trap. Further the conduct of complainant was not of a bona fide complainant. He admits that a case was registered against him under Sections 354/326 I.P.C. He also admits that another case was registered against his son Iqbal Singh under Section 376 I.P.C. In such Crl.Appeal No.2002-SB of 2002 15 circumstances, when the trap witnesses are interested and inimical witnesses and they are qualitatively inferior in the testimonies then no reliance could be placed on such witnesses. Similar view was taken by this High Court in case Amrik Singh v. State of Punjab 2005(4) RCR (Criminal) 310, wherein it was observed as under:- In Sat Paul v. Delhi Administration, 1976 SCC (Cri.) 160, it was held that trap witnesses are interested witnesses concerned with the success of the trap and qualitatively their testimonies are inferior to that of an ordinary interested witnesses. Besides, it was observed that corroboration of such interested witness from independent source is essential where witnesses have poor moral fiber with bad antecedents and have motive to remove the accused from their way. Corroboration of another trap witness, who was a police official was held not to be sufficient.” 23. As regards the non-treatment of currency notes with the phenolphthalein powder, no explanation has been rendered by the prosecution, which makes the case of the prosecution doubtful. In the similar circumstances, the Hon'ble Supreme Court, in Khilli Ram V. State of Rajasthan, 1985(1) RCR 66 (SC), observed as under:- “12. Ordinarily in cases of this type the powder treatment is made. There is no material at all on the record to explain why such a process was not followed in the instant case even Crl.Appeal No.2002-SB of 2002 16 though detection is alleged to have been handled by experienced people of the Anti Corruption Department. PW. 6 was a very senior officer and in fact by the time the trial took place he had retired from service. It is difficult for us to accept the position that he was not aware of the powder treatment. It has been in vogue for well over three decades now. If such powder treatment had been made, the passing of the bribe would indeed not have been difficult to be proved. We are prepared to agree with counsel for the State of Rajasthan that