IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.629-SB of 1998 Date of Decision : September 20, 2010 Jiwan Lal ....Appellant Versus State of Punjab .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. K.K. Goel, Advocate Mr. P.S. Sidhu, Additional Advocate General, Punjab T.P.S. MANN, J. The instant appeal is directed against the judgment and order dated 6.8.1998 passed by the Special Judge, Barnala, whereby the appellant was convicted under Section 7 of the Prevention of Corruption Act (hereinafter referred to as ‘the Act’), and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- and, in default of payment of fine, to undergo further rigorous imprisonment for three months. The appellant was further convicted under Section 13(2) of the Act and sentenced to undergo rigorous imprisonment for 3 ½ years and to pay a fine of Rs.1,000/- and, in default of payment of fine, to undergo further rigorous imprisonment for three months. Both the sentences were ordered to run concurrently. The period of detention suffered by appellant Criminal Appeal No.629-SB of 1998 -2- during trial/investigation was ordered to be set off from the sentence awarded to him. According to the prosecution, on 12.1.1994 complainant Dilbar Singh made statement to the effect that he was attorney of Sarbajit Singh son of Hira Singh, resident of Thikriwala, who had 25/30 killas of land in the village. 11 killas of land of Sarabjit Singh in Patti Dhaliwal at outlet No.55447 of Kuraz Branch, were not brought under the Warabandi scheme and about 5 killas of land of complainant adjoining that land were also not brought under the said scheme. The appellant, who was working as Canal Patwari, had prepared the Warabandi of the village about 2-3 months prior. Since the complainant was not issued any chits regarding the Waranbandi, he went to Ludhiana and made an application to the Deputy Collector. The said application was marked to the appellant for report. Thereafter, the complainant approached the appellant to prepare his case for Warabandi, who demanded Rs.1,500/- for doing the needful and on request of the complainant, he agreed to accept Rs.1,000/- from the complainant to include the land in the Warabandi and issuing the chit. The complainant told this fact to Teja Singh son of Surat Singh of the same village and decided not to pay the illegal gratification to the appellant. Further case of the prosecution was that on 12.1.1994, the complainant and Teja Singh approached Bharthari Singh, Inspector, Vigilance, Sangrur and handed Criminal Appeal No.629-SB of 1998 -3- over ten currency notes of the denomination of Rs.100/- each and made statement before him. The Inspector then applied phenolphthalein powder on the same. The said notes were returned to the complainant and demonstration was made in the presence of the complainant and Teja Singh. The colour of water lying in the glass did not change when sodium carbonate was put but when phenolphthalein powder applied on a paper was put in the glass of water, the colour of water turned into pink. After making endorsement on the aforesaid statement, Inspector Bharthari Singh sent it to Police Station Kotwali, Barnala for registration of the case on the basis of which FIR No.14 dated 12.1.1994 was registered against the appellant for offences under Sections 7 and 13(2) of the Act. Thereafter, Inspector Bharthari Singh in the company of complainant Dilbar Singh and Teja Singh, who was deputed as a shadow witness, started for Barnala. Amarjit Singh, Forest Guard was joined in the police party at Bus Stand, Badbar. Thereafter the complainant alongwith Teja Singh went to the house of the appellant and handed over the tainted money to the appellant, who after counting the money put the same into the pocket of the jersy, which he was wearing at that time. The complainant remained in the room whereas Teja Singh came out and gave signal to the police party, who, alongwith Teja Singh, entered the house of the appellant where he was found siting. Inspector Bharthari Singh then secured the appellant by his arms and disclosed his identity. Thereafter, Inspector Bharthari Singh Criminal Appeal No.629-SB of 1998 -4- arranged a glass of water and put sodium carbonate in the same. The colour of the water did not change but when the hands of the appellant were dipped in the glass of water, the colour of water changed into pink. The solution was put into a nip and sealed with the seal bearing impression ‘BS’ and was taken into possession vide separate recovery memo. attested by the complainant, Teja singh and Amarjit Singh. On further search of the appellant, ten currency notes of the denomination of Rs.100/- each were recovered from the pocket of the jersy of the appellant. The same were taken into possession after comparing their numbers with the memo. Further search of the appellant led to the recovery of Rs.400/- and an identity card. These articles were separately taken into possession vide separate recovery memo. When the pocket of the jersy of the appellant was put into the solution prepared in another glass of water, the colour again changed into light pink. The solution was also put into another nip which was sealed by Inspector Bharthari Singh with his seal bearing impression ‘BS’. The parcel of jersy and nip were taken into possession vide separate memo. which was attested by the witnesses. Sample seal impression was kept separately and the seal after its use was handed over to Amarjit Singh. Nehri record including Warabandi record, which was lying near the seat of the appellant alongwith the application of complainant addressed to Deputy Collector duly marked to the appellant with a copy of the power of attorney, were also taken into possession. The appellant was arrested. Criminal Appeal No.629-SB of 1998 -5- Upon completion of investigation, final report under Section 173 Cr.P.C. was submitted in the Court of Special Judge, where charge under Sections 7 and 13(2) of the Act was framed against the appellant, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 Sikandar Singh, PW2 Raj Kishan, PW3 Atma Singh, Clerk, PW4 Surjit Singh, Ziledar, PW5 HC Nirbhai Singh, PW6 Dilbar Singh-complainant, PW7 Teja Singh and PW8 Bharthari Singh, Inspector. Report Ex.PF of the Forensic Science Laboratory was also tendered into evidence. When examined under Section 313 Cr.P.C., the appellant admitted that he was posted as Nehri Patwari of village Chuhanke and Thikriwala. He admitted that the application Ex.PG was made to the Deputy Collector by Dilbar Singh, which had been marked to him by the Ziledar but denied that he demanded any illegal gratification. He stated that Sarabjit Singh was resident of village Thikriwala and was residing at Patiala. Teja Singh and Dilbar Singh were his tenants and were under the influence of Sarabjit Singh land-owner. Land of Sarabjit Singh was situated on several outlets in village Thikriwala and there were different Warabandies of those outlets. The Warabandi was prepared six months prior to the present occurrence which was duly approved by the Collector and he could not change or amend the same. Sarabjit Singh was putting pressure on him for amending the Warabandi and bringing his land on a Criminal Appeal No.629-SB of 1998 -6- particular outlet and this could not be done and due to that he was annoyed with him. Inspector Bharthari Singh also resided at Patiala and was a friend of Sarabjit Singh. Said Sarabjit Singh came to Police Station Kotwali Barnala on the date of occurrence where Teja Singh and Dilbar Singh were present. The appellant was summoned by Bharthari Singh to Kotwali Barnala and was threatened to amend the Warabandi as per desire of Sarabjit Singh and on his refusal to do so, he was falsely involved in this case. Inspecstor Bharthari Singh never visited his house. In defence, the appellant examined DW1 Jora Singh, Surveyor of Improvement Trust, Barnala and DW2 Rajesh Kumar. After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court believed the prosecution version and convicted and sentenced the appellant, as mentioned above. I have heard learned counsel for the parties and perused the evidence with their able assistance. Learned counsel for the appellant has submitted that Amarjit Singh, Forest Guard, who was joined in the raiding party by Inspector Bharthari Singh so as to witness the recovery of the alleged bribe amount, has not been examined by the prosecution. He was an independent witness and could have lent corroboration to Criminal Appeal No.629-SB of 1998 -7- the prosecution case. His non-examination by the prosecution is sufficient to hold that the appellant has been falsely implicated in the case. It is true that Amarjit Singh has not been examined by the prosecution. Said Amarjit Singh had been won over by the appellant and for that reason Additional Public Prosecution gave him up by making a statement in that regard on 8.7.1996. Therefore, the prosecution case cannot be discredited. The appellant also did not dare to examine Amarjit Singh in support of his plea that he was falsely implicated in the case. Even otherwise the prosecution is not required to produce all the witnesses cited by it. Only those witnesses, who are material to the prosecution case were required to be examined. In the present case, two star witnesses of the prosecution are PW6 Dilbar Singh and PW7 Teja Singh. Both of them with-stood the test of searching cross-examination at the instance of the appellant. No worthwhile material could be brought on the record by the appellant to establish that the said two witnesses had falsely implicated him at the instance of Sarabjit Singh, who had constituted complainant Dilbar Singh as his attorney to look after his land. Learned counsel for the appellant has further submitted that there was material discrepancy in the evidence regarding the visit of PW6 Dilbar Singh and PW7 Teja Singh to the office of the Vigilance Bureau on the day of the occurrence. According to PW6 Dilbar Singh he had Criminal Appeal No.629-SB of 1998 -8- started for Sangrur from Barnala on the day of the occurrence at about 6.00 a.m. and when he reached the office of Vigilance Bureau, he noticed two Constables present there. The Vigilance Inspector reached there after 5/7 minutes, i.e. at about 7.15 a.m. PW7 Teja Singh testified that when he alongwith the complainant reached the office of Vigilance Bureau at Sangrur, the Vigilance Inspector was already there. Further, the Vigilance Inspector, while deposing as PW8, stated that he had reached the office on that day at about 7.15 a.m. and the complainant and the shadow witness arrived there after half an hour. The aforementioned discrepancy pointed out by the defence is so trivial in nature that no benefit of the same can be extended to the appellant. Whether the complainant and the shadow witness reached the office of Vigilance Bureau first or whether the Vigilance Inspector was the one to reach there earlier to the complainant and the shadow witness reaching there is of no consequence. The incident in question had taken place on 12.1.1994. The complainant and the shadow witness had stepped into the witness-box on 8.7.1996. With the passage of time, such like minor discrepancies are bound to creep into the testimonies of truthful witnesses. Learned counsel for the appellant has also submitted that the Vigilance Inspector spoke lie while appearing as PW8 that he was residing at Sangrur and his house was at a distance of 1½ furlong from the office. In fact, Criminal Appeal No.629-SB of 1998 -9- in his statement recorded on 15.1.1994 (Ex.DA), in an earlier case, he had testified that his residence was at Patiala. However, in Ex.DA, the said witness had also stated that he had stayed with his brother in Basti Ajit Nagar at Sangrur. Further, the contents of statement Ex.DA were not put to the Vigilance Inspector when he was in the witness-box in the present case as PW8. Even otherwise, if it is held that he had been residing at Patiala that would not be sufficient to hold that he was in touch with Sarabjit Singh, who was resident of village Thikriwal but residing at Patiala. An half-hearted attempt has been made by counsel for the appellant to discredit the testimony of the Vigilance Inspector by producing the site plan Ex.DW1/A and Ex.DW2/A proved by DW1 Jora Singh and DW2 Rajesh Kumar, Draftsman, respectively in respect of the house belonging to the wife of the appellant in contrast to the site plan Ex.PU of the place of occurrence prepared by the Vigilance Inspector. Argument made is that the site plan Ex.PU was not in conformity with the house actually constructed at the spot and, therefore, the Court should hold that the Vigilance Inspector never went to the house of the appellant. However, minor difference in the actual location of the rooms and the distance between the house and the office of the Improvement Trust would not be sufficient to hold that the Vigilance Inspector did not go to the house of the appellant. The site plan Ex.PU prepared by the Vigilance Inspector was a rough plan and not according to scale. The Vigilance Inspector is not a Draftsman who would Criminal Appeal No.629-SB of 1998 -10- show all the other rooms of the house in detail, which might have been shown in the site plans submitted by the Surveyor of the Improvement Trust or by the Draftsman. Another argument raised on behalf of the appellant is about the link evidence which, according to him is missing. According to the Vigilance Inspector, he had deposited the case property with MHC Nirbhai Singh on the same day, i.e. 12.1.1994. From the affidavit Ex.PK of MHC Nirbhai Singh it can be made out that the case property was deposited on 14.1.1994. Merely because the Vigilance Inspector did not deposit the case property with MHC Nirbhai Singh on 12.1.1994 or MHC Nirbhai Singh testifying that the case property was deposited on 14.1.1994 will not be sufficient to hold that the link evidence is missing in the case and, therefore, the appellant deserves the benefit of doubt. Even otherwise from the testimony of PW8 Inspector Bharthari Singh it cannot be said with certainty that the case property was deposited by him with MHC on 12.1.1994. He testified that he correctly recorded the statement of PWs under Section 161 Cr.P.C., arrested the accused and after obtaining sanction from competent authority, challened him. He also stated that the tainted currency notes were Ex.P-83 to Ex.P-92 and the case property was deposited with MHC Nirbhai Singh on the same day. In view of the above, no case is made out for any interference in the conviction of the appellant for the offences under Sections 7 and 13(2) of the Act. However, in Criminal Appeal No.629-SB of 1998 -11- view of the fact that the appellant is facing the agony of criminal prosecution for the last more than 16 years, a case is made out for reducing the sentence of imprisonment for the offence under Section 13(2) of the Act. Resultantly, the conviction of the appellant under Sections 7 and 13(2) of the Act is maintained. His sentence of imprisonment and also the fine, alongwith its default clause, for the offence under Section 7 of the Act is upheld. However, the sentence of imprisonment for the offence under Section 13(2) of the Act is reduced from 3½ years to rigorous imprisonment for two years. The sentence of fine, alongwith its default clause, is upheld. Both the substantive sentences of imprisonment shall run concurrently. But for the modification in the quantum of sentence of imprisonment, as indicated above, the appeal fails and, is, therefore, dismissed. ( T.P.S. MANN ) September 20, 2010 JUDGE satish Satish Kumar 2014.04.22 09:56 I attest to the accuracy and integrity of this document Chandigarh