Criminal Appeal No. 116-SB of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 116-SB of 1992 Date of Decision: 21.03.2009 Jaswant Singh son of Atma Singh son of Sagar Singh, aged 53 years, Service, (since demised on 19.08.04), represented by Inderjeet Kaur, widow, Jasvir Singh, son, Swaran Singh, son, and Pushpinder Kaur, daughter, residents of Sangrur. ... Appellants Versus The State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. D.S. Patwalia, Advocate, for Inderjeet Kaur, Jasvir Singh, Swaran Singh, and Pushpinder Kaur, Legal Representatives of Jaswant Singh (since deceased), appellants. Ms. Manjari Nehru Kaul, Deputy Advocate General, Punjab, for the respondent. SHAM SUNDER, J. This appeal was originally filed by Jaswant Singh son of Atma Singh son of Sagar Singh (now deceased), against the judgment of conviction, and the order of sentence, dated 03.03.92, rendered by the Court of Special Judge, Bathinda, vide which, it convicted Jaswant Singh (since demised), and sentenced him as under:- Criminal Appeal No. 116-SB of 1992 2 Name of the accused (now appellant) Offence for which convicted Sentence awarded 1 2 3 Jaswant Singh (i) Under Section 161 of the Indian Penal Code. To undergo rigorous imprisonment for a period of one year. (ii) Under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act. To undergo rigorous imprisoment for a period of one year and to pay a fine of Rs. 1000/-, and in default of payment of fine, to undergo further rigorous imprisonment for a period of two months. The substantive sentences were, however, ordered to run concurrently. 2. During the pendency of appeal, Jaswant Singh died, and his legal representatives namely Inderjeet Kaur, widow, Jasvir Singh, son, Swaran Singh, son, and Pushpinder Kaur, daughter, were ordered to be brought on record, as appellants, vide order dated 01.12.2008. 3. The facts of the prosecution case, in brief, are that Balwant Singh, prosecution witness, was posted as Clerk, in Civil Hospital, Bathinda. He had gone to the accused on 07.11.86, who was posted as Superintendent in Civil Hospital, Mansa, in connection with audit report. Jaswant Singh, accused (now deceased), told him to contact him again, on 10.11.86. Balwant Singh, prosecution witness, then contacted the accused on 10.11.86 in his office. At that time Santosh Kumar, Clerk, was also with him. He asked the accused to send reply of the audit report. The accused told him that, since on the decision of audit report, he (Balwant Singh), will Criminal Appeal No. 116-SB of 1992 3 get arrears of his pay, he should pay Rs. 200/-, to him (accused). Balwant Singh, told him that he had no money with him. It was further stated that the accused told Balwant Singh, that if a sum of Rs. 100/-, was not paid to him, on that day, he would submit reply of the audit report against him. Balwant Singh, prosecution witness, came out of the office, with Santosh Kumar, Clerk, and told him that he did not want to pay gratification, other than legal remuneration, to the accused, and would contact the Vigilance Office. He further told Santosh Kumar, to wait for him outside Civil Hospital, Mansa, and he would be coming to the Hospital, alongwith the Vigilance Staff, Bathinda. Thereafter, Balwant Singh, came to the office of the Vigilance, Bathinda. He made statement Ex. PL, before the Vigilance Inspector Harchand Singh, which was read-over and explained to him, and he signed the same, in token of its correctness. Vigilance Inspector Harchand Singh, made endorsement PL/1, on the statement, and on its basis first information report Ex. PL/2 was recorded by Sub Inspector Dalip Singh of Police Station, Mansa. Thereafter, Balwant Singh, prosecution witness, handed over a sum of Rs. 100/- (one currency note of the denomination of Rs. 50/-, two currency notes of the denomination of Rs. 20/- each, and one currency note of the denomination of Rs. 10/-) to the Inspector aforesaid, who applied phenol-pathelein powder to the same. He also noted down the numbers of these currency notes, and thereafter handed over the same to Balwant Singh, prosecution witness, vide memo PM. Thereafter, a raiding party was constituted, which was headed by Harchand Singh, Inspector, and consisted of the complainant, and Milkhi Ram, who was joined from the office of Punjab State Electricity Board, Maur. Besides other officials, Milkhi Ram, was also apprised of the facts of the case. When the raiding Criminal Appeal No. 116-SB of 1992 4 party reached near Dharamshala Railway Road, Mansa, Santosh Kumar, prosecution witness, was also joined. He was introduced to Milkhi Ram, prosecution witness, and was directed to act as a shadow witness. He was further told that he should give a signal to the raiding party, when the tainted currency notes were passed on, by the complainant, to the accused. Balwant Singh and Santosh Kumar, prosecution witnesses, proceeded towards Civil Hospital, Mansa, and the remaining members of the raiding party waited at some distance, for the requisite signal. Balwant Singh and Santosh Kumar, entered the office of the accused. The accused enquired from Balwant Singh, if he had brought the money. Balwant Singh, replied, in the affirmative. Then Balwant Singh, paid the tainted currency notes to the accused. After counting the same, he put the same, in the left pocket of the trousers, worn by him. Santosh Kumar, prosecution witness, came out- side the office, and gave the requisite signal to the raiding party. Thereafter, the raiding party headed by Vigilance Inspector Harchand Singh, aforesaid, conducted raid, on the accused. Inspector Harchand Singh, introduced himself to the accused. He sent one Constable to call a doctor. Thereafter, a glass tumbler, containing water was arranged, sodium carbonate was put therein, and, as such, the solution was prepared. The fingers of the hands of Milkhi Ram, prosecution witness, were got dipped therein. However, the colour of the solution did not change. Thereafter, the hands of the accused were got dipped therein, as a result whereof, the colour of the solution turned into light pinkish. It was put into P1, which was sealed and taken into possession, vide memo PD, attested by the witnesses. Thereafter, the search of the accused was got conducted through Milkhi Ram, prosecution witness. Tainted currency notes of Rs. 100/-, were recovered from the left Criminal Appeal No. 116-SB of 1992 5 pocket of the pant worn by him. The numbers of the currency notes were compared with the numbers already mentioned in the memo, aforesaid, and the same tallied. Currency notes P2 to P5 were sealed in an envelope, and taken into possession, vide memo PE. On further search of the accused, a sum of Rs. 59/-, a watch, identity card etc. were recovered, which were taken into possession, vide memo PH. Leave application of Santosh Kumar, P9, was also taken into possession, vide memo PH. In the meanwhile, Dr. A.K. Bansal, came there, and in his presence the pant of the accused was got removed. The pocket of the pant was reversed. It was washed, in a freshly prepared solution, in the aforesaid manner, as a result whereof, the colour of the same turned into pinkish. The solution was put into P10 and sealed with the signatory chit of Milkhi Ram, and taken into possession, vide memo PG, attested by the witnesses. The pant was converted into a parcel, and taken into possession, vide the same memo. Audit file was also taken into possession from Naib Singh, Clerk, vide memo PC. Rough site plan of the place of occurrence, PW11/B, with correct marginal notes was prepared. The statements of the prosecution witnesses were recorded. The accused was arrested. On reaching the Vigilance Office, the case property was deposited with the Additional Moharrir Head Constable. After the completion of investigation, and on receipt of sanction, 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 Sections 161 of the Indian Penal Code, and 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1988, was framed against him, to which he pleaded not guilty, and claimed judicial trial. Criminal Appeal No. 116-SB of 1992 6 5. The prosecution, in support of its case, examined Vinod Kumar Junior Assistant, Director Health Service, Punjab, Chandigarh (PW1), who deposed that the audit was conducted by the audit party and report PA, was submitted, according to which, a sum of Rs. 19105.25/-, had been embezzled by Balwant Singh, prosecution witness, for the period 04.12.81 to 14.06.82, and the said amount was deposited by Mandip Kaur, wife of Balwant Singh, in government treasury, Rita Rani, Clerk, Civil Hospital, Mansa (PW2), who brought the service book of the accused, attendance register of the hospital, showing the presence of the accused, in the office on 10.11.86, and half day's casual leave of Santosh Kumar, Clerk, Gurjant Singh, Record Keeper, State Bank of Patiala, Mansa (PW3), who proved the entry regarding the deposit of Rs. 19105.25/-, on 08.09.86, on behalf of the Senior Medical Officer, Mansa, Jaggar Singh, Assistant, Civil Hospital, Mansa (PW4), who deposed that Balwant Singh, Clerk of the office of Senior Medical Officer, Mansa, was suspended for some embezzlement, who was reinstated six months, after the suspension, Naib Singh, Clerk, Civil Hospital, Mansa (PW5), produced the inspection file, relating to report PA handed over by the accused, Milkhi Ram (PW6), who was joined with the raiding party, Dr. A.N. Bansal (PW7), in whose presence, part of the proceedings during the course of investigation, were conducted, Balwant Singh, Clerk, Civil Hospital, Mansa (PW8), the complainant, Santosh Kumar, Clerk (PW9), the shadow witness, Major Singh, Senior Clerk, Office of the Civil Surgeon, Bathinda (PW10), who deposed that Jaswant Singh, accused, was transferred from Civil Hospital, Bathinda, to Civil Hospital, Mansa, as Superintendent, vide order dated 10.04.86, copy whereof, was PW10/A, and Harchand Singh, Deputy Superintendent of Criminal Appeal No. 116-SB of 1992 7 Police (Retd.), Vigilance, at the relevant time, Inspector, Vigilance (PW11), the Investigating Officer. Thereafter, the Additional Public Prosecutor for the State closed the prosecution evidence. 6. The statement of the accused under Section 313 Cr.P.C., was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He took up the following plea, in his statement, under Section 313 Cr.P.C.:- “I am innocent. PW Balwant Singh annoyed with me because he suspected that I have pointed the embezzlement of Rs. 19,105.25/-, made by him to the Joint Audit Committee. On that account he was suspected and he nursed grudge against me. PW Santosh Kumar was annoyed with me because he tried to embezzle Rs. 360/-, drawn by him in excuse of the passed amount from the Treasury. Then he made over- writing in the cash book and he had to deposit the amount in the Treasury on my pointing out, and Santosh Kumar, was also annoyed with me because the room where Santosh Kumar used to sit was allotted to me and a letter dated 19.09.86, was written to Santosh Kumar by me on behalf of SMO. All employees of Civil Hospital were not concerned with the audit report and none of them wanted its compliance so they conspired to get me implicated in the aforesaid case on 10.11.86 while I was sitting in the office alongwith other employee. The raiding party conducted a raid upon me. I raised hue and cry that they falsely implicated me and in the meanwhile Balwant Singh thrusted the tainted money in my pocket. My alarm attracted other employees as well as attendance of the patients whereupon the Vigilance Inspector took me to the office of the DSP Mansa. There all the proceedings were fabricated and alleged hand wash and pocket wash were fabricated thereby mixing two kinds of powder.” 7. He, however, produced Surinder Pal Clerk, Office of the Senior Medical Officer, Mansa (DW1), in his defence. Thereafter, he closed his defence evidence. Criminal Appeal No. 116-SB of 1992 8 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 accused preferred the instant appeal. 10. During the pendency of appeal, he died, and his legal representatives, as appellants, in his place, were brought on record. 11. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 12. From the evidence of Balwant Singh, complainant, PW8, it was proved that the accused, who was posted as Superintendent, at the relevant time and, as such a public servant, demanded a sum of Rs. 200/-, as gratification other than legal remuneration, from him (Balwant Singh). But later on, he agreed to receive a sum of Rs. 100/-, as gratification, other than legal remuneration, and accepted the same. It was also proved from his statement, that such amount of gratification, other than legal remuneration, was demanded and accepted by the accused from him, as he (accused) had told him that on the decision of the audit report, he was to get the arrears. It means that the amount of gratification, other than legal remuneration, was demanded and accepted by the accused, from Balwant Singh, complainant, as a motive or reward. The statement of Balwant Singh, complainant, was duly corroborated through the statement of Santosh Kumar, PW9, the shadow witness. He also stated that he was instructed by the Vigilance Inspector, to accompany Balwant Singh, and hear the conversation between him and the accused and when the bribe was accepted by the latter, from the former, he should give the requisite signal, to the Police party. It was further stated by him that, on seeing Balwant Singh, the accused asked him as to Criminal Appeal No. 116-SB of 1992 9 whether he had brought the money. Balwant Singh, replied in the affirmative. It was further stated by him that Balwant Singh, paid Rs. 100/-, as gratification other than legal remuneration, to the accused, which he accepted and thereafter put the same, in the pocket of his pant. It was thereafter that he gave a signal to the remaining members of the raiding party. Still further corroboration to the statement of the complainant, was furnished through the evidence of Harchand Singh, Deputy Superintendent of Police, at the relevant time, Inspector Vigilance, the Investigating Officer. Not only this, corroboration to the ocular evidence, was also furnished through the hand-wash of the accused, as a result whereof, the colour of the solution turned into light pinkish and the pocket-wash of the trousers of the accused, as a result whereof, the colour of the freshly prepared solution turned into light pinkish. It means that the accused came into contact with the tainted currency notes. It was for the accused to explain, as to how, his hand-wash and pocket-wash became light pinkish. No doubt, the accused furnished an explanation, to the effect, that the tainted currency notes were forcibly thrust into his pocket. The same is not convincing, as would be discussed, in the subsequent paragraphs. 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 phenolphthalein powder, on his hands, his conviction, under the relevant Sections, was legally sustainable. Even the accused, could not explain, as to how, the tainted currency notes, came into his possession, which were a short-while ago, in the possession of the complainant. No evidence was produced, on record, that Balwant Singh, PW8, and Santosh Kumar, PW9, were inimically disposed towards the accused. The trial Court, was, thus, right in holding Criminal Appeal No. 116-SB of 1992 10 that the evidence of the prosecution witnesses, duly corroborated through other circumstantial evidence was cogent, convincing, reliable and trustworthy. The trial Court, was, thus, right in relying upon the prosecution evidence, for recording conviction and awarding sentence. 13. It was, however, submitted by the Counsel for the appellant, that there was no occasion, on the part of the accused, to demand and accept gratification other than legal remuneration, in the sum of Rs. 100/-, from the complainant, as he was not competent to remove the audit objections. He further submitted that, as such, it could not be said that the accused allegedly demanded and accepted the gratification, other than legal remuneration, from Balwant Singh, prosecution witness, as a motive or reward. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Admittedly, Jaswant Singh, was the Superintendent, in the office of the Senior Medical Officer, Mansa. The audit report had to be routed through him, after the removal of the audit objections. Not only this, it is a matter of common knowledge, that every case or document which is to be put up before the higher authorities, is required to be routed through the Superintendent, as it is for him to explain to the officer concerned, as to what that matter was, and, as to whether, the proposal submitted by the subordinate officials, was, in accordance with the relevant rules. In this view of the matter, Jaswant Singh, Superintendent, was the person, who could help the complainant, in the matter, because only after the removal of the audit objections, the arrears of pay, could be disbursed to Balwant Singh. Not only this, even Balwant Singh, complainant, while appearing as, PW8, in clear-cut terms, stated that the accused had told him that only after the removal of audit objections, that he Criminal Appeal No. 116-SB of 1992 11 was to be paid the arrears. In this view of the matter, it could be said that Jaswant Singh, accused, demanded gratification, other than legal remuneration, and accepted the same, from Balwant Singh, prosecution witness, as a motive or reward. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellant, that Balwant Singh, PW8, and Santosh Kumar, PW9, were inimically disposed towards the accused, as he had written a letter photocopy whereof, is exhibit DW1/A to Santosh Kumar, for vacating the room, which was to be occupied by him and that he (Santosh Kumar) had withdrawn a sum of Rs. 4404/-, on 12.08.86, against a bill passed for Rs. 4044/-, and a letter was written to him for deposit of the excess amount in the Treasury. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It may be stated here, that the letter copy whereof is DW1/A was written by the Senior Medical Officer under his signatures, to Santosh Kumar, for the vacation of room, which was to be occupied by Jaswant Singh, accused. This letter was written, in the discharge of his official duties. The accused had no role to play either in writing this letter, or in signing the same. Even the letter copy whereof is DW1/B for deposit of the excess amount of Rs. 360/-, by Santosh Kumar, was written by the Senior Medical Officer, Mansa. In pursuance of that letter, Santosh Kumar, deposited the said amount in the Treasury. This letter was also written by the Senior Medical Officer, Mansa, in the discharge of his official duties. Jaswant Singh, accused, nowhere, came into the picture, so far as the writing of this letter or signing of the same, was concerned. On the other hand, Balwant Singh, PW8, and Santosh Kumar, PW9, being the Clerks, were working under the Criminal Appeal No. 116-SB of 1992 12 supervision of Jaswant Singh, Superintendent, accused. Therefore, they could not dare falsely implicate him, in this case, knowing fully well that their life could be made hell by him (Jaswant Singh), accused, in case, they falsely implicated him, in this case. The submission of the Counsel for the appellant, that both these witnesses were inimically disposed towards him, being devoid of merit, must fail, and the same stands rejected. 15. It was next submitted by the Counsel for the appellant, that the evidence of Balwant Singh, PW8, and Santosh Kumar, PW9, who are the official witnesses, was not corroborated through any independent source, and, as such, the trial Court, was wrong in placing reliance, on the same, to convict the accused. No doubt, the trap witnesses can be said to be interested witnesses, yet their evidence cannot be discarded merely on account of non-corroboration through an independent witness. In the face of the evidence of interested witnesses, the Court is required to scrutinize the same, carefully and cautiously. If after careful and cautious scrutiny, the Court comes to the conclusion, that the same is reliable then no formidable reason can be coined, to disbelieve the same. The evidence of Balwant Singh, PW8, and Santosh Kumar, PW9, has been found to be cogent, convincing, reliable and trustworthy. Implicit reliance was rightly placed on the same by the Court below, to convict the accused. Not only this, their evidence was duly corroborated through the statement of Milkhi Ram, Section Officer (Civil), Punjab State Electricity Board, Ropar, who appeared as PW6. He was a member of the raiding party. It was, in his presence, that the recovery of tainted currency notes was effected from the pocket of the trousers of the accused. It was also in his presence, that the fingers of the hands of the accused were got dipped into the solution, which Criminal Appeal No. 116-SB of 1992 13 turned into pinkish. It was also in his presence that the pocket of the trousers of the accused was reversed and dipped into a freshly prepared solution, as a result whereof, the same turned into pinkish. Milkhi Ram, Section Officer, PW6, could be said to be an independent witness. He had no ill-will, grudge or enmity against the accused. To say that the evidence of Balwant Singh,PW8, and Santosh Kumar, PW9, was not corroborated through any independent witness, therefore, could not be said to be correct. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 16. A plea was taken by the accused, in his statement, under Section 313 Code of Criminal Procedure, that the tainted currency notes were forcibly thrust, in his pocket, by Balwant Singh, PW8. Such a plea taken by the accused, in his statement, under Section 313 of the Code of Criminal Procedure, was only a plea. It was not substantiated through any evidence. On the other hand,as stated above, there is cogent, convincing and reliable evidence, in the shape of the statements of Milkhi Ram, PW6, an independent witness, Balwant Singh, PW8, the complainant, Santosh Kumar, PW9, the shadow witness, and Inspector Harchand Singh, PW11, the Investigating Officer, to the effect, that the recovery of the tainted currency notes was effected from the pocket of the pant, worn by the accused. No plea was taken, during the course of the cross-examination of the witnesses, that the tainted currency notes were forcibly thrust, in the pocket of the pant of the accused. Such a belated plea, was taken by the accused, just with a view to wriggle out of the clutches of law. In the face of the cogent and convincing evidence of the prosecution witnesses, that the recovery of tainted currency notes was effected from the pocket of the pant Criminal Appeal No. 116-SB of 1992 14 worn by the accused, the plea that the same were forcibly thrust in his pocket, without any substantiation, pales into insignificance. Such a plea being after-thought, was rightly rejected by the trial Court. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 17. The Counsel for the State, however, submitted that the statutory presumption under Section 4 (I) of the Prevention of Corruption Act, 1947, could