Crl.Appeal No. 2002 SB of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No. 2002 SB of 2008 Date of decision: 30th May, 2009 Parminder Singh ...Petitioner Versus State of Punjab ...Respondent CORAM: HON'BLE MR.JUSTICE HARBANS LAL Present: Mr.M.S. Kang, Advocate for the appellant Ms.Manjari Nehru Kaul, DAG, Punjab *** JUDGMENT Harbans Lal, J. This appeal is directed against the judgment /order of sentence dated 29.9.2008 passed by the Court of learned Special Judge, Ferozepur, whereby he convicted and sentenced the accused/appellant Parminder Singh to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- and in default of payment of the same, to further undergo rigorous imprisonment for one month under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988 (for brevity 'the Act'). Crl.Appeal No. 2002 SB of 2008 2 As set up by the prosecution, Joga Singh complainant was in need of a copy of jamabandi in respect of the land inherited by his father from his grand father. To obtain the same, he visited the office of accused Parminder Singh, who was posted as Revenue Patwari Halqa Jhanda Bagga on 17.11.2005 at Zira. He raised a demand of Rs.1500/- as illegal gratification for supplying the copy of jamabandi to Joga Singh. Ultimately, the amount was settled at Rs.1000/-. Joga Singh being not in favour of paying this amount as illegal gratification, he took up the matter with Gurbachan Singh PW, who advised him to get the accused nabbed from the Vigilance Bureau. On 18.11.2005, Joga Singh as well as Gurbachan Singh visited the office of Vigilance Bureau, Ferozepur Range, Ferozepur and narrated the entire episode to Narinder Pal Singh DSP, who recorded the statement of Joga Singh. After observing the usual formalities, the raiding party including Joga Singh complainant, Gurbachan Singh shadow witness, Dr.Satpal and Lakhwinder Singh Pharmacist left for conducting raid at the office of the accused. Joga Singh complainant as also Gurbachan Singh entered into the office of the accused. After the treated currency notes were handed over to the accused, the appointed signal was given by Gurbachan Singh to the aforesaid DSP, who alongwith other members of the raiding party, rushed into the office of the accused and intercepted him. Again after observing the usual formalities, the accused was put under arrest. After completion of investigation, the charge-sheet was laid in the court for trial of the accused. The accused was charged under Sections 7 and 13 (2) of the Act, to which he did not plead guilty and claimed trial. Crl.Appeal No. 2002 SB of 2008 3 To bring home guilt against the accused, the prosecution examined Paramjit Singh Clerk PW1, HC Parsan Singh PW2, Jagdish Rai, Sadar Kanungo PW3, MHC Jaswinder Singh Vigilance Bureau, Ferozepur PW4, HC Chamkaur Singh PW5, Joga Singh complainant PW6, Gurbachan Singh Shadow Witness PW7, Dr.Satpal PW8, HC Rachhpal Singh PW9, Narinder Pal Singh DSP PW10 and closed its evidence by tendering Ex.P20 the report of the Forensic Science Laboratory. When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He came up with the plea that “Joga Singh complainant is the grandson of Hazara Singh. Hazara Singh was married twice and two sons were born from the first marriage namely Gurdip Singh and Amar Singh. Amar Singh is the father of Joga Singh complainant. Out of second marriage of Hazara Singh, five children were born and the name of her second wife was Attar Kaur. Attar Kaur was owner of 16 acres of land. Attar Kaur transferred the land in favour of her son Gulab Singh, grandson Amir Singh and daughter- in-law Sukhpal Kaur through registered transfer deed. Joga Singh complainant was not given any share. I entered the mutation of this sale deed and complainant was angry with me because I did not inform him about the mutation. Said mutation was entered on 27.1.2005 and sanctioned on 3.2.2005. Complainant Joga Singh was saying to me that he has suffered loss of lacs as I have not informed him about the mutation and he was nourishing grudge against me and he threatened me also and due to this reason, I have been falsely implicated in this case. I never demanded any Crl.Appeal No. 2002 SB of 2008 4 amount from the complainant, nor I received any bribe. Complainant and shadow witness came to me and they shook hands with me and I went to bathroom for urinating. I do not know as to when the complainant kept the amount in my almirah as the almirah was open. In the meantime, police came there and arrested me.” He closed his defence evidence by tendering Ex.D1, copy of mutation No.1094. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. I have heard the learned counsel for the parties and have gone through the record with due care and circumspection. To begin with, the learned counsel for the appellant urged with great eloquence that a careful delving into the statement of the accused recorded under Section 313 of Cr.P.C. would reveal that the facts regarding demand of bribe money or acceptance thereof have not been put to the accused and that being so, evidence of these facts cannot be read against him. Learned State counsel could not controvert this contention in a successful manner. The object of examination of the accused under Section 313 of Cr.P.C. is to enable him personally to explain any circumstances appearing in the evidence against him. This provision is mainly intended to benefit the accused as well as the court in reaching the final conclusion. A circumstance, about which the accused was not asked to explain, cannot be used against him. The provision of this section is not intended to nail him to Crl.Appeal No. 2002 SB of 2008 5 any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi-alteram-partem as ruled by the Apex Court in re: State of Punjab versus Hari Singh and others 2009(2) Recent Criminal Reports (Crl.), 143. It is a case, in which there being other material infirmities, it would not be in the fitness of things to remit the case to the learned trial court for recording the additional statutory statement of the appellant to put the facts pointed out by Mr.Kang as also for fresh decision of the case at such a belated stage. Thus, the evidence in relation to the alleged demand of bribe money and its acceptance cannot be read against the appellant. It is in the evidence of Joga Singh complainant PW6 that “we reached the office of the Patwari at 9.30 A.M. and I alongwith Gurbachan Singh went to the Patwari and on his demand, I paid him two currency notes of Rs.500/- each.” It is also in the evidence of Gurbachan Singh PW7 shadow witness that “when we reached the office of Patwari, then accused Parminder Singh was sitting in his office, now present in court. When we went inside the office of Patwari, then he asked if Rs.1000/- is brought by us or not. Joga Singh told that he had brought the money. Joga Singh handed over those tainted currency notes to Patwari.” This evidence was required to be put to the appellant specifically, while he was being examined under Section 313 ibid. This flaw in the prosecution case strikes a death knell to the prosecution edifice. It is in the evidence of Joga Singh PW6 that “accused put currency notes in his pocket. Meantime, DSP V.B. Zira came there and entered into the office of Patwari and accused Patwari put the currency Crl.Appeal No. 2002 SB of 2008 6 notes in the almirah, which was on the back of accused. Then DSP Surinder Pal Singh came there. Search of the accused was conducted. First of all, the pocket of the accused was searched. Thereafter, almirah on the back of the accused was searched and tainted currency notes were recovered from under the registers, which were two in number.” This evidence can be interpreted to mean that before arrival of DSP, the appellant had placed the tainted currency notes beneath the registers lying in the almirah on the back of the appellant. It is also in the cross-examination of this witness that “it is correct that there was no lock over the almirah from where the tainted currency notes were recovered.” One thing is clear from this evidence that the recovery was effected from almirah and not in consequence of personal search of the appellant. It is in the cross-examination of Gurbachan Singh PW7 the shadow witness that “the almirah was not put under lock and key”. It is in the cross-examination of Dr.Satpal PW8 that “when the tainted currency money was not recovered from the pocket of the accused, then Joga Singh told that the tainted money is lying under the registers in the almirah”. It implies that this witness Joga Singh knew as to where the money was lying. It is the defence plea that the complainant and shadow witness came to the appellant and they shook hands with the latter, who went to bathroom for urinating. He does not know as to when the complainant kept the money in his (appellant) almirah as it was open. This gives an inkling that neither the demand of bribe was made, nor the same was accepted by the appellant and the tainted currency notes were put by the complainant Joga Singh beneath the registers lying in the open almirah of the appellant and it is because of this reason that he straight-way told the Crl.Appeal No. 2002 SB of 2008 7 DSP that such currency notes were lying at the said place. Investigator Narinder Pal Singh PW10 has put-forth a new story by stating that “Almirah from which tainted currency notes were recovered was lying locked and it was opened by the accused with the help of key. These facts were not incorporated by me either in the statements of witnesses or any other document”. Palpably, he has negated the version proffered by Joga Singh as well as Gurbachan Singh PWs. This story appears to have been designed by the Investigator very cleverly to rule out the possibility of the tainted currency notes having been placed by Joga Singh complainant beneath the registers in the open almirah of the appellant. While deposing in the court it might had occurred in the mind of this Investigator that if he stated that such currency notes were lying in the open almirah belonging to the appellant, in that eventuality, the court may draw the presumption that such notes were planted by Joga Singh PW by placing the same beneath the registers lying in the almirah of the appellant. Needless to say, the evidence of Joga Singh and Gurbachan Singh PWs is in sharp contradiction with the Investigator, as according to the former, the almirah from which the recovery was effected lay open, whereas as testified by the latter, the same was lying locked. If the Investigator had entered into the office of the appellant soon after the demand and acceptance of the alleged bribe money, there would have been no time for the appellant to lock the almirah after keeping the currency notes therein. Such act of locking of the almirah would have been certainly noticed by the Investigator. If the appellant had applied lock to the almirah within the gaze of the Investigator, in that, the latter would have straight way asked the former to open the lock of the Crl.Appeal No. 2002 SB of 2008 8 almirah, whereas he (Investigator) went on to say that in his cross- examination that “the accused did not respond, when he was inquired about the tainted currency notes.” Nay this, it is in the cross-examination of Joga Singh (sic) that “it is correct that Patwari had washed the hands with sodium carbonate. Police apprehended the accused while he was washing his hands with the above said powder. The accused after having a suspicion went to the bathroom and thereafter, he came there and sat on chair when he was apprehended by the police.” This evidence can be well construed to mean that when the appellant was apprehended by the police at that time there were no traces of sodium carbonate for the obvious and simple reason that he had already washed off his hands by going to the bathroom. If it was so, it has been left in the womb of mystery by the prosecution as to from where the hand wash of the accused came. As surfaces in the cross-examination of Gurbachan Singh PW7 that “when I had come to summon DSP, then accused had washed his hands with sodium carbonate powder lying in the room and then the had come to his seat. The powder was not there in the almirah, but was lying in the bathroom. I had seen the accused washing his hands in the bathroom.” This evidence is in the same vein as has been given by Joga Singh PW. It further demolishes the story that it was the hand-wash of the appellant, which was sent for chemical examination. It is in the cross- examination of Narinder Pal Singh DSP PW10 that “it was not got recorded by PW Joga Singh that accused had already washed his hands with sodium carbonate.” Thus, either this witness or other witness namely Joga Singh was lying in the witness box. It is in the evidence of Joga Singh PW6 that “when the accused had put the currency notes in his pocket after taking Crl.Appeal No. 2002 SB of 2008 9 from him, then the witness Gurbachan Singh gave a signal to the party. DSP came there and apprehended the accused when he was sitting in the office”. In his cross-examination, as noticed supra, he went on to say that “the police apprehended the accused while he was washing his hands with the above said powder.” Thus, this evidence is contradictory in itself for the reason that on the one hand, he went on to say that the accused was apprehended, when he was sitting in his offence and on the other hand, he has said that he was washing his hands. Further, it is in the cross-examination of Gurbachan Singh (sic) that “I myself came down and asked the DSP to come.” As per this evidence, this witness Gurbachan Singh had come down to call the DSP, whereas it is in the cross-examination of Dr.Satpal PW8 that the shadow witness Gurbachan Singh had given a signal from the roof and he did not come down to summon the DSP.” It is inferable from this evidence that either Gurbachan Singh was telling a lie or Dr.Satpal was not present in the raiding party, when the raid was conducted. Initially, Joga Singh (sic) was got declared hostile. It is in his cross-examination directed by the learned defence counsel that “I did not get recorded in police statement that I was to get the loan for which I was required copy of jamabandi. I did not state any reason for which the copy of jamabandi was required.” It is apt to be borne in mind that when he was confronted with his police statement Ex.P7, it was found recorded therein that he was having doubt that mutation of the land inherited by his grand father Hazara Singh was less for which he wanted to get the copy of the jamabandi. Thus, obviously he has made an endeavour to omit certain material facts from his statement in the court for the reason best known to him. It is in the cross-examination of Gurbachan Crl.Appeal No. 2002 SB of 2008 10 Singh (sic) that “I got recorded in my police statement that Joga Singh came to me and told that accused Parminder Singh Patwari was demanding illegal gratification from him.” When he was confronted with his police statement Mark B, it was not found so recorded therein. A meticulous perusal of his cross-examination would reveal that he made omissions and improvements on material facts in his statement. Thus, it would be putting too much premium on his statement to believe it. It is in the cross- examination of Dr.Satpal PW8 that “I did not name the accused in the police statement'. When he was confronted with his police statement Mark ‘C’, the name Parminder Singh Patwari was found mentioned therein. It is further in his cross-examination that “I did not get recorded in my police statement that Joga Singh and Gurbachan Singh also started with us in official Gypsy.” When he was confronted with his aforesaid statement, it was found so recorded therein. It is in his further cross-examination that “I did not get recorded the name of powder which was recovered from the bathroom in my police statement”. When he was confronted with his police statement Mark “C’, the name of powder as sodium carbonate was found recorded therein. Thus, his testimony is also not free from omissions and material improvements. In re: Anand Parkash versus State of Haryana 2008 (2) Recent Criminal Reports (Crl.), 335, the tainted currency notes were recovered from almirah and not from the personal search of the accused. The prosecution version as in the case in hand was not corroborated by any independent witness. It was held that positive result of phenolphthalein test is not enough to establish the guilt of the appellants. In re: Ram Prakash Arora versus The State of Punjab AIR 1973 Supreme Court 498, it has Crl.Appeal No. 2002 SB of 2008 11 been held that there was no independent search witness and no other evidence from which any corroboration could be found of the evidence given by the member of the raiding party including the complainant. The prosecution had not proved charges beyond all reasonable doubt. Hence, the conviction was liable to be set aside.” Averting to the instant one, indeed Joga Singh as well as Gurbachan Singh are trap witnesses. As regards Dr.Satpal, he is also an official witness. Thus, there is evidence of only interested and partisan witnesses, who are awfully interested in the success of the case. There being no independent corroboration, evidence of Joga Singh as well as Gurbachan Singh which is bristle with material infirmities cannot be made the basis to maintain the conviction. In view of the infirmities enumerated hereinbefore, this appeal is accepted by setting aside the impugned judgment/ order of sentence. The appellant is hereby acquitted of the charged offence. His bail bonds shall also stand discharged. 30th May, 2009 (Harbans Lal) gsv Judge Whether to be referred to the Reporter? Yes/No.