Criminal Appeal No. 121-SB of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 121-SB of 1991 Date of Decision: 24.12.2008 Balbir Singh son of Bakhtawar Singh, aged 50 years, resident of Village Dhani Sub Inspector (Police) under suspension (since deceased) represented by his legal representatives Madnawati Devi (widow) and Barinder Kumar (son) residents of House No. 461, Ward No. 29, Shiv Colony, Rewari (Haryana). ... Appellants Versus 1. State of Haryana ... Contesting Respondent 2. Rajender (son of Balbir Singh deceased) 3. Surender Kumar (son of Balbir Singh deceased) 4. Smt. Kaushayala Devi w/o Bramh Parkash r/o 402-C, New Police Colony, Hisar (daughter of Balbir Singh deceased) ... Proforma Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. K.K. Aggarwal, Senior Advocate, with Mr. Kapil Aggarwal, Advocate, for Madanawati Devi and Barinder Kumar, appellants, (legal representatives of Balbir Singh, deceased). Mr. A.K. Jindal, Assistant Advocate General, Haryana, for respondent No. 1. SHAM SUNDER, J. This appeal was originally filed by Balbir Singh son of Bhaktawar Singh, appellant (now deceased), against the judgment of conviction, and the order of sentence, dated 20.03.1991, vide which, he was convicted and sentenced as under:- Criminal Appeal No. 121-SB of 1991 2 Name of the accused (now appellant) Offence for which convicted Sentence awarded 1 2 3 Balbir Singh (a) Under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947. Rigorous imprisonment for a period of two years. (b) Under Section 161 Indian Penal Code. Rigorous imprisonment for a period of one year. The substantive sentences were, however, ordered to run concurrently. 2. During the pendency of appeal, Balbir Singh, died and his legal representatives namely Madanawati Devi and Barinder Kumar, as appellants and Rajinder Kumar, Surender Kumar and Smt. Kaushalaya Devi as proforma respondent Nos. 2 to 4, were brought, on record. 3. The facts, in brief, are that on 08.09.1988, Dharma, complainant, presented an application exhibit PE before the Superintendent of Police, Rohtak, who marked the same to the Additional Superintendent of Police, Rohtak, for conducting the raid, after observing all the formalities. It was alleged by Dharma, that he was a resident of Village Sundana, and his son Ramesh, was involved in a case of dacoity, pertaining to Police Station Kalanaur. Balbir Singh, accused (now deceased) was the Station House Officer, Police Station Kalanaur, at the relevant time. He had told him, when he had visited the Village of the complainant, in connection with the investigation of the said dacoity case, that if he wanted that the name of his son was excluded, from the said case, he should come to the Police Station, with a sum of Rs. 5,000/-. It was further alleged that thereupon, on the next day, i.e. on Sunday, he had gone to the Police Station alongwith Amar Nath, Criminal Appeal No. 121-SB of 1991 3 prosecution witness and came to know that Balbir Singh, SHO, was in his residential quarters. Thereafter, he alongwith Amar Nath, went to the residential quarters of Balbir Singh, accused, and paid a sum of Rs. 4500/-, to him, in the presence of Amar Nath and promised to pay the balance amount. Two days, thereafter, accused Balbir Singh, came to the house of the complainant, and brought him to the Police Station. He was told, by Balbir Singh, Station House Officer, that until and unless the balance amount was paid, he would not be let off. Thereafter, Dharma, complainant, was made to sit continuously, in the Police Station, for four days. Thereafter, he was let off, saying that he should come to the Police Station, on the next day. It was further stated that, on the next day, Dharma, went to the Police Station alongwith Ram Kishan, prosecution witness, and paid a sum of Rs. 500/-, to Balbir Singh, Station House Officer, accused, in his office. On 03.09.1988, Dharma, came to Rohtak Courts, as the dacoity case against his son, was fixed, on that day, for remand. At that time, one Constable of Police Station Kalanaur, had told him, that Balbir Singh, Station House Officer, Kalanaur, had called him, to the Police Station. It was further alleged that, on the same evening, at about 6.00 PM, he had gone to the Police Station, and met Balbir Singh, SHO. At that time, Balbir Singh, Station House Officer, told him, that he should pay Rs. 1,000/-, more failing which, he (Dharma), would also be challaned, alongwith his son, in the said dacoity case. It was further stated that Dharma, being a poor person, was not in a position to pay more amount. He was threatened by Balbir Singh, SHO, that if further payment was not made, he would be involved in a false case. It was further stated that Dharma, took a sum of Rs. 1,000/-, from Ram Kishan, prosecution witness, on credit, and was going to pay the Criminal Appeal No. 121-SB of 1991 4 said amount to Balbir Singh, Station House Officer, for helping him, as per demand, but in the meanwhile, changed his mind. He then presented the aforesaid application before the Superintendent of Police, Rohtak. 4. On receipt of the application PE, Mohinder Singh Mann, Additional Superintendent of Police, Rohtak, perused the same. Thereafter, he took the personal search of Dharma, prosecution witness. Currency notes of Rs. 1,000/- of the denomination of Rs. 100/- each, were recovered from Dharma and the same were taken into possession by Mohinder Singh Mann, Additional Superintendent of Police, vide recovery memo, attested by the witnesses. Thereafter, these currency notes were treated with phenol- pathelein powder. The currency notes, aforesaid, were also initialled by Mohinder Singh Mann. Thereafter, further personal search of Dharma, prosecution witness, was taken, to ensure that nothing was left with him. Thereafter, the aforesaid tainted currency notes, treated with phenol- pathelein powder, were handed over to Dharma, prosecution witness. He was directed that he shall pay the said currency notes to Balbir Singh, accused, the then Station House Officer, on demand, as gratification, other than legal remuneration, in the presence of Amar Nath and Ram Kishan, prosecution witnesses. The memo of entrustment of the aforesaid currency notes to Dharma, prosecution witness, was prepared. Amar Nath and Ram Kishan, prosecution witnesses were instructed, that after the payment was made by Dharma, prosecution witness, to the accused, he (Ram Kishan), would inform Mohinder Singh Mann, Additional Superintendent of Police, while Amar Nath and Dharma, should continue sitting with the SHO, and should keep him busy, by talking to him. After imparting the necessary instructions, referred to above, to Dharma and other prosecution witnesses, Criminal Appeal No. 121-SB of 1991 5 Mohinder Singh Mann, Additional Superintendent of Police, alongwith other witnesses as also the Police officials, proceeded towards Police Station Kalanaur in government jeep No. HYO 4777, driven by him (Mohinder Singh Mann). When they were at a distance of 400 meters, from Police Station Kalanaur, the jeep was stopped. Again the aforesaid instructions were repeated to Dharma, Amar Nath and Ram Kishan, prosecution witnesses, and they were sent to Police Station Kalanaur. Mohinder Singh Mann alongwith other Police Officials, continued sitting at a distance by concealing their presence, waiting for the necessary signal. After about 15 minutes, Ram Kishan, prosecution witness, came to Mohinder Singh Mann, and told him that Dharma had paid Rs. 1,000/-, to Balbir Singh, accused, on demand, as gratification, other than legal remuneration. Thereafter, Mohinder Singh Mann, Additional Superintendent of Police, alongwith Ram Kishan and other Police officials, went to Police Station Kalanaur. At that time, Balbir Singh, Station House Officer, was found sitting, in his office, on his chair. Dharma and Amar Nath, prosecution witnesses, were sitting on chairs opposite him. When Mohinder Singh Mann, reached there, all of them got up. At that time, Dharma and Amar Nath, prosecution witnesses, pointed out, that accused Balbir Singh, had put the said amount of Rs. 1,000/-, which was given to him, as gratification, other than legal remuneration, in the left side pocket of his pant. Mohinder Singh Mann, Additional Superintendent of Police, inquired of accused Balbir Singh, about the same, whereupon, he took out the said currency notes, from the pocket of his pant, and gave the same to him (Mohinder Singh Mann). Mohinder Singh Mann, compared the serial numbers of those currency notes, with the serial numbers, already Criminal Appeal No. 121-SB of 1991 6 mentioned in the memo, and the same tallied. The currency notes which were handed over by Balbir Singh, SHO, also bore the signatures of Mohinder Singh Mann. Those currency notes were taken into possession, vide separate recovery memo, after putting the same, in an envelope. The envelope was duly sealed. Thereafter, Mohinder Singh Mann, got a jug, containing water. Sodium carbonate was mixed therein. Thereafter, the fingers of the hands of the accused, were got washed therein. The colour of the solution, turned into light pinkish. The said solution was put into a quarter bottle. Thereafter, fresh solution, in the manner, referred to above, was prepared. The pant of the accused, was got removed, after arranging a trouser for him. The left side pocket of the pant of the accused, was reversed, and dipped into the freshly prepared solution, as a result whereof, the colour thereof, turned into light pinkish. The solution was put into a separate quarter bottle. Thereafter, the hands of Dharma, prosecution witness, were also got washed, in freshly prepared solution, in the aforesaid manner, and the colour thereof, turned into light pinkish. That solution was also put in a quarter bottle. Thereafter, the aforesaid quarter bottles, and the pant of the accused were separately sealed, and taken into possession, vide separate memos. Mohinder Singh Mann, Additional Superintendent of Police, recorded the FIR exhibit PO, in Police Station Kalanaur, Rohtak, at 1.45 P.M., under Section 161 IPC and Section 5 of the Prevention of Corruption Act, 1947, giving all the details therein. Rough site plan PN was prepared. The statements of the witnesses were recorded. The accused was, ultimately, arrested. After the completion of investigation, and on receipt of sanction, for launching prosecution, the accused was challaned. 5. On his appearance, in the Court, the accused was supplied the Criminal Appeal No. 121-SB of 1991 7 copies of documents, relied upon by the prosecution. Charge under Section 5(1) (d), punishable under Section 5(2) of the Prevention of Corruption Act, 1947, and also under Section 161 IPC, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 6. The prosecution, in support of its case, examined Constable Daya Nand (PW1), Kashmiri Lal Malhotra, draftsman (PW2), Inder Sain, Photographer (PW3), Dharma, complainant (PW4), Ram Kishan (PW5) and Mohinder Singh Mann, the then Additional Superintendent of Police, Investigating Officer (PW6). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence, after tendering into the same, affidavits exhibits PB, PC, and PD of MHC Siri Kishan, Constable Hari Datt and Constable Ajit Singh, respectively as also the report Ex. PS of the Forensic Science Laboratory after giving up Amar Nath, prosecution witness, as unncessary. 7. 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. It was stated by him that, in fact, the son of Dharma, complainant, and another Ramesh of Village Kakrana, who was related to Ram Kishan and Amar Nath, prosecution witnesses, were wanted, in a case of dacoity, and they all put pressure upon him, to avoid the arrest of those persons, to which he refused. It was further stated by him, that Ramesh son of Dharma, surrendered, in the Court, and a wrist watch was recovered from him, in the dacoity case. It was further stated that Dharma wanted that he should not recover anything from his son. It was further stated that after recovery of wrist watch, from the son of Dharma, they all got annoyed with him, and thereupon, with the help of Criminal Appeal No. 121-SB of 1991 8 Sub Inspector Ram Kishan, who was also related to Ramesh, accused, in the dacoity case, concocted false allegations, against him, and persuaded Mohinder Singh Mann, Additional Superintendent of Police, to help them organize a raid. It was further stated that he never demanded or accepted any gratification, other than legal remuneration of the aforesaid amount, from Dharma, complainant. It was further stated that no recovery was effected from the pocket of the pant worn by him. It was further stated by him, that the Police had conducted several raids, at the house of Ramesh son of Dharma and another Ramesh of Village Kakrana for their arrest. It was further stated that all the proceedings of hand wash and pocket wash, were concocted. It was further stated that Mohinder Singh Mann, IPS, was already annoyed with him, as during enquiry proceedings, against him conducted by him (Mohinder Singh Mann, IPS) earlier to the present incident, some harsh words were exchanged, between them. It was further stated by him that Dharma, on that day, had tried to hand over Rs. 1,000/-, to him, but he refused to have it, and the same fell on the ground. He further stated that, thereafter, the entire version was concocted. The accused, however, examined Ranjit Singh, Head Constable, DW1, in his defence. Thereafter, he 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. Since none appeared, on behalf of the appellant, this Court, decided the appeal on merits, vide judgment dated 12.05.2006. Criminal Appeal No. 121-SB of 1991 9 11. Feeling aggrieved, Criminal Appeal No. 1416 of 2007, was filed, in the Apex Court, by Balbir Singh, appellant. During the pendency of appeal, he died, and his legal representatives were brought on record, as stated above. The Apex Court, however, passed the following order dated 08.10.2007:- “It is stated by the learned counsel for the appellants that respondent No. 4 need not be served as she is supporting the appellants. Having heard the learned counsel for the parties, we are of the opinion that although on the date fixed for hearing before the High Court i.e. 12.09.2006, the appellants were not represented, we are of the opinion that in the facts and circumstances of this case, they should be given an opportunity to represent their case through a counsel. The impugned judgment is, therefore, set aside and the matter is remitted to the High Court for consideration of the matter afresh. The parties shall appear before the appropriate Bench of the High Court on 19.11.2007 on which date, a date for hearing shall be fixed or, if possible, that matter may be taken up for hearing on that date itself.” 12. After the receipt of appeal, for fresh decision, from the Apex Court, the Counsel for the parties, have been heard. The evidence and the record of the case, have also been carefully perused. 13. The Counsel for the appellants, at the very outset, submitted that the trial Court was wrong, in recording conviction, and awarding sentence to Balbir Singh, on the basis of unreliable and uncorroborated evidence of the prosecution witnesses. He further submitted that the evidence of Dharma, complainant, was not corroborated through any other independent source, as Amar Nath, prosecution witness, was given up, as unnecessary, and, as such, it could not be said that the prosecution was able Criminal Appeal No. 121-SB of 1991 10 to prove its case, beyond a reasonable doubt. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Dharma (PW4), is the complainant, in this case. His evidence proceeds, in the manner, that his son was involved in a dacoity case, relating to Police Station Kalanaur. When Balbir Singh, Station House Officer, Police Station Kalanaur, came to his village, in connection with the investigation of the said case, he was called by him. Balbir Singh, told him, that if he wanted his son's name, to be excluded, from the said dacoity case, he should pay a sum of Rs. 5000/-, to him, on the next day. It was, in pursuance of that demand made by Balbir Singh, the then Station House Officer, Police Station Kalanaur, that on the next day (Sunday), Dharma, complainant (PW4), alongwith Amar Nath, prosecution witness, went to the aforesaid Police Station alongwith a sum of Rs. 4500/-. Balbir Singh, Station House Officer, was found present, in his residential quarters. A sum of Rs. 4500/-, was paid to him, by Dharma, in the presence of Amar Nath. He told Balbir Singh, Station House Officer, that the remaining amount of Rs. 500/-, would be arranged, and paid to him, very soon. At that time, the son of Dharma was in the Police Station. He was not let off from custody. After two days, Balbir Singh, accused, again came to the Village of Dharma (PW4), and took him along. Dharma was made to sit in the Police Station for four days. Thereafter, he was let off, by Balbir Singh, Station House Officer, saying that he should bring the balance amount. Thereafter, he (Dharma) also went to Ram Kishan, prosecution witness, in Village Kakrana, to take a sum of Rs. 500/-, from him. Ram Kishan, prosecution witness, gave Rs. 500/-, to him, and thereafter he alongwith Ram Kishan, came to the Police Station and met Balbir Singh, there. The remaining amount of Rs. 500/-, as Criminal Appeal No. 121-SB of 1991 11 gratification, other than legal remuneration, was also paid to him, by Dharma, in the presence of Ram Kishan. Even thereafter, the son of Dharma, was not let off. 08.09.1988, was the date fixed for appearance of the son of Dharma in the Court at Rohtak. He came to Rohtak Courts. One Police Constable of Police Station Kalanaur, met him there, and told him that he should go to Kalanaur and meet Balbir Singh, SHO, there. On the next day, he went to the Police Station and met accused Balbir Singh. On enquiry, as to why, he had been called, Balbir Singh, told him that he should pay Rs. 1000/-, to him, failing which, he will implicate him, as well, in the said case alongwith his son. Dharma then again went to Village Kakrana and met Amar Nath and Ram Kishan. He took a sum of Rs. 1000/-, from Ram Kishan, prosecution witness, and thereafter all of them came to Rohtak and an application was got scribed which was thumb marked by Dharma. The said application is exhibit PE. Thereafter, they went to the Superintendent of Police, Rohtak. On the instructions of the Superintendent of Police, Rohtak, they met Mohinder Singh Mann, Additional Superintendent of Police. Dharma told Mohinder Singh Mann that a sum of Rs. 1000/-, was being demanded by Balbir Singh, SHO. It was further stated by him that thereafter he handed over the currency notes, in a sum of Rs. 1000/- of the denomination of Rs. 100/- each, to Mohinder Singh Mann, Additional Superintendent of Police, who applied phenol-pathalein powder to the same, and handed over the same to him, vide memo PF. Instructions were given to Dharma that he alongwith the other witnesses, should go to Balbir Singh, Station House Officer, in the Police Station. After he demanded and accepted gratification, other than legal remuneration, Ram Kishan, should give a signal to the Police party. After the amount of Criminal Appeal No. 121-SB of 1991 12 gratification, other than legal remuneration, was demanded by Balbir Singh, Station House Officer, and paid to him, by Dharma, in the presence of Ram Kishan and Amar Nath, Ram Kishan, gave the requisite signal to Mohinder Singh Mann, Additional Superintendent of Police, who alongwith the other Police officials were standing at some distance by concealing their presence. Thereafter, Mohinder Singh Mann, Additional Superintendent of Police, went to the Police Station and saw Dharma, complainant, and Amarnath, prosecution witness, sitting on the chairs, opposite Balbir Singh, Station House Officer, Police Station Kalanaur. Balbir Singh, Station House Officer, admitted that he received a sum of Rs. 1000/-, as gratification, other than legal remuneration, from Dharma. He took out the currency notes of Rs. 1000/-, from the left side pocket of the pant, worn by him, and handed over the same, to Mohinder Singh Mann, Additional Superintendent of Police. The numbers of the same were compared with the serial numbers of the currency notes, mentioned in the memo, and the same tallied. Thereafter, the same were taken into possession, vide memo PG. No doubt, a minor discrepancy, regarding the date, on which, at the asking of a Constable, Dharma (PW4) met Balbir Singh has cropped up, in his statement, in the manner, that he stated the same as 08.09.98 instead of 03.09.88. Dharma, being an illiterate rustic villager, and on account of sufficient lapse of time could not be expected to remember the exact dates. Such discrepancy, therefore, did not affect the merits of the case, as his evidence is, otherwise, consistent with regard, to the material aspects. The statement of Dharma (PW4), was duly corroborated through the evidence of Ram Kishan (PW5), in material particulars, as also, Mohinder Singh Mann, Superintendent of Police, Rewari (at that time Additional Superintendent of Police, Rohtak) Criminal Appeal No. 121-SB of 1991 13 (PW6). Still further corroboration to the statement of Dharma was provided through the hand wash of the accused, as a result whereof, the colour of solution turned into light pinkish and the pocket wash of the pant of the accused, as a result whereof, the colour of the freshly prepared solution, turned into light pinkish. Not only this, still further corroboration to the evidence of the prosecution witnesses, was provided, through the report of the Forensic Science Laboratory, exhibit PS, according to which, phenol- pathelein was detected in one sealed paper envelope containing exhibit 1, the tainted currency notes. Sodium carbonate was detected in the hand wash solution of the accused, as also the hand wash solution of Dharma and pocket wash solution of the pant of the accused. 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. Even no explanation, was furnished by the accused, as to how, the solution, in which the fingers of his hand were washed, and the solution, in which, the pocket of his pant was washed turned into light pinkish. Even no explanation was furnished by the accused, as to how, the tainted currency notes of Rs. 1000/-, reached the left side pocket of his pant, which were a short while ago, with the complainant. 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. There was no reason, on the part of Dharma, Ram Kishan and Mohinder Singh Mann, to falsely implicate the accused, in the instant case. There is nothing, on the record, that Dharma and Ram Kishan were having any enmity with the accused earlier to the incident. The trial Court, was right, in holding that the evidence of the Criminal Appeal No. 121-SB of 1991 14 prosecution witnesses duly corroborated through other items of circumstantial evidence, was cogent, convincing, reliable and trustworthy. The trial Court was, thus, right in relying upon the same, for recording conviction and awarding sentence. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellants, that the prosecution story was most improbable. He further submitted that there was no motive with the accused, to