In the High Court of Punjab and Haryana at Chandigarh Crl. Appeal No. 1186-SB of 2000 Date of decision: April 11, 2008 Piara Lal ... Appellant versus State of Punjab ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Mansur Ali, Advocate with Mr. H.S. Deol, Advocate for the appellant. Mr. C.S. Brar, DAG, Punjab for the respondent. A.N. Jindal, J This appeal has arisen out of the judgment dated 17.11.2000 passed by Special Judge, Jalandhar convicting the accused-appellant Piara Lal (hereinafter referred to as 'the accused') under Section 7, 13 (2) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act') for accepting bribe of Rs.500/- and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs.2000/-. The present day, the capitalistic society has put us in a strong dilemma. The money race has become the order of the day thereby changing the metals and characters of people. Rich are going to be richer, whereas, poor are going to be poorer. The corruption in the society has developed as a serious disease like cancer, is attracted by the poverty, greed, jealousy of the others and to become richer over night in an easy way. The public servants while throwing the needs of the poor to the winds filling their own purses at their cost. It could be termed as a plague which is not Crl. Appeal No. 1186-SB of 2000 -2- *** only contagious but if not controlled, would spread like a fire in the jungle. Its virus could be compared with HIV leading to AIDS being incurable. The corruption is opposed to democracy and social order being not only anti people but aimed and targeted against them. It affects the economy and destroys the cultural heritage. No healthy society can develop and progress where the meager part of the budget is galloped by its own servants while ignoring those who are beneficiaries under the Government Schemes and policies. Even the funds allocated for a particular class of the society go missing in the way and the deserving class keeps waiting with their mouth open, therefore, it is high time and also the need of the time to arrest this enormous disease by taking wider steps. The present case relates to a Revenue Patwari who being the custodian of the records plays havoc with the people, sells the documents (the public property) exploiting the poor farmers who themselves are the owner of the same. The brief resume of the facts running into the veins of the prosecution is that Iqbal Singh-complainant (hereinafter referred to as 'the complainant') a resident of Parjian Kalan along with his father and elder brother were the co-sharers in the land situated in the aforesaid village. In the year 1987, they had taken the loan from UCO Bank, Shahkot by mortgaging their land but the same was cleared in the month of November, 1995. The complainant had handed over a clearance certificate to the accused in November, 1995. He wanted the copy of the jamabandi for enhancement of the limit of loan. Earlier copy of jamabandi given by the accused did not comprise of all the Khasra numbers, therefore, on 3.1.1996, Crl. Appeal No. 1186-SB of 2000 -3- *** the complainant along with Jaswant Singh went to the accused to supply him another copy of jamabandi containing all the khasra numbers. In response to which, the accused placed a demand of Rs.500/- to be paid to him on account of illegal gratification, then he along with Jaswant Singh reported the matter to Sukhwinder Singh, DSP, Vigilance Bureau and made statement in this regard and also handed over 5 currency notes of the denomination of Rs.100/- each, who applied phenolphthalein powder to those currency notes. After noting down the number of the notes, he handed over the same back to the complainant. He also got satisfied himself that the complainant had no other money in his possession. DSP Sukhwinder Singh further demonstrated to the complainant and Jaswant Singh as to how the colour of sodium carbonate turned pinkish after coming into contact with phenol phalanthene powder. He also prepared the memo Ex.PH about the demonstration. The complainant was directed to approach the accused and hand over the currency notes to him only on demand. Jaswant Singh was deputed as shadow witness and directed him to give signal on acceptance of the illegal gratification by the accused. In the meantime, on the statement of the complainant, FIR Ex.PL was recorded against the accused. The Investigating Officer also joined A.E.T.C. Jalandhar in the raiding party as an official witness. As organized, the complainant approached the accused in the company of Jaswant Singh and handed over the said currency notes of Rs.500/- on demand by him. On giving signal by the shadow witness, DSP Sukhwinder Singh entered the office. In the meantime, the accused, who had gone to the upstairs hurriedly came back. Amrit Lal PW also reached the spot. On hand wash in the solution of Crl. Appeal No. 1186-SB of 2000 -4- *** sodium carbonate, the colour turned pink which indicated that the accused had accepted the bribe. The said solution was also taken into possession vide memo Ex.PK. On the personal search of the accused, a purse containing Rs.470/- and an identity card were recovered besides one wrist watch, which were taken into possession vide separate memo Ex.PN. On interrogation, accused made a disclosure statement that he had kept concealed the currency notes of Rs.500/- beneath the flower pot lying on the roof of the house of Viru Ram, about which only he knew and could get the same recovered. In pursuance of the said disclosure statement, he got recovered the tainted money, Ex.P2 to Ex.P6, which was taken into possession vide memo Ex.PF. The complainant produced the copy of jamabandi which he obtained from the accused Mark-A and produced the same before DSP Sukhwinder Singh, which was taken into possession vide memo Ex.PM. The other connected record was also taken into possession vide memo Ex.PM/1. He prepared the rough site plan of the place of recovery Ex.PO; sent the sample parcel for analysis by the Director of the Laboratory who sent his report Ex.PQ. The accused produced the relevant record before the DSP and the same was taken into possession vide memo Ex.PP. After seeking sanction from the Collector Jalandhar vide letter dated 4.6.1996 Ex.PA, report under Section 173 Cr.P.C. was submitted against him. The accused was charged under Section 7 read with Section 13 (2) of the Act, to which he pleaded not guilty and claimed trial. In order to substantiate the charge, the prosecution examined Suresh Kumar Bill Clerk (PW1), Om Parkash (PW2), HC Vipan Kumar Crl. Appeal No. 1186-SB of 2000 -5- *** (PW3), C. Balbir Singh (PW4), Amrit Lal (PW5), Jaswant Singh (PW6), Iqbal Singh (PW7), DSP Sukhwinder Singh (PW8) and tendered into evidence report of the Forensic Science Laboratory Ex.PQ. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and further explained that copy of jamabandi for the entire land had been supplied to the complainant on 30.12.1995. The complainant had compelled him to delete the entry regarding mortgaging of the land to the bank to which he refused as the same was not within his power. On the day of occurrence, the complainant came to his office and after shaking hands asked for copy of the jamabandi once again. After checking the record, he supplied fresh copy. The complainant went upstairs for urinating and came after few minutes. After the complainant came down, the police came there and arrested him. No incriminating material was recovered from his possession. He neither demanded nor accepted any illegal gratification and he never placed any money underneath the flower pot on the roof of Viru Ram. He neither made any disclosure statement nor led the police party to the said place of recovery of the said money. In defence, he examined Tarsem Singh (DW1). The trial ended in conviction. Hence this appeal. Arguments heard. Record perused. No merit could be found in the argument advanced by the learned counsel for the appellant that the complainant has made major improvement over his initial version wherein he had stated that he handed copy of jamabandi for enhancement of the limit of loan but it is established Crl. Appeal No. 1186-SB of 2000 -6- *** from the evidence of the prosecution that the loan had already been cleared and as such there was no question of any such enhancement. Consequently, there was no question for asking the accused for another copy of the jamabandi when he had already received it from him. It is common with the farmers that they get the loan limits from the bank. These are said to be yearly crop loans. Once a limit is granted, the same could be extended only on payment of the earlier loan and on furnishing the fresh documents so that the bank could be assured if the farmer had not taken any other loan on the said copy of jamabandi. Thus, the evidence so led by the complainant clearly transpires that the complainant wanted to enhance the loan limit for which he needed copy of the jamabandi. The accused despite giving clearance certificate of the earlier loan had not mentioned about the said certificate in the earlier copy of jamabandi supplied to him, therefore, he must be insisting for making entry with regard to mentioning of certificate in the next copy of the jamabandi to be received by him, that is why, Iqbal Singh (PW7) while stepping in the witness box has stated that on 30.12.1995, he was to obtain copy of the jamabandi from the accused for obtaining loan from the bank and despite 5-6 visits paid to the accused, the copy of jamabandi was not supplied to him. Again on 5.1.1996, when he went to seek the document, he was asked for the illegal gratification to the tune of Rs.500/-. Besides the asking for the copy of jamabandi, the complainant had no animus, animosity or enmity against the accused for implicating him in this case. I also cannot condemn this witness on the ground that he is interested witness because why he would put himself to harassment without any previous enmity with the accused. Despite the Crl. Appeal No. 1186-SB of 2000 -7- *** lengthy cross examination conducted upon him, this witness has withstood the test of reliability, credibility and trustworthiness. He has given minute details of the occurrence and nothing incriminating which may be helpful to shatter his testimony, could be elicited despite lengthy cross examination conducted upon him. He has said without concealing anything that after Jaswant Singh gave signal to the police party, the accused went upstairs and thereafter came down. In the meantime, the Investigating Officer had entered the room and got his hand washed. The hand wash turned pink from where it could be indicated that the accused had handled the money which was given by the complainant. The testimony of the complainant not only stands corroborated by the hand wash, but also, from the testimony of a Gazetted Officer of the rank of Deputy Superintendent of Police, who led the trap, apprehended the accused and recovered the amount of Rs.500/- from below the flower pot on the first floor, in pursuance of the statement made by the accused. He also got washed the hands of the accused in the solution of sodium carbonate, the colour of which became pink. His testimony has been assailed by the accused on the ground that he made manipulations in the documents so prepared by him. The argument that Amrit Lal had signed at some odd places on the recovery memo relating to the documents as well as Ex.PX, recovery of the record Ex.PM/1, statement under Section 27 of the Evidence Act Ex.PE and recovery memo relating to currency notes Ex.P6. On perusal of the aforesaid documents, it transpires that in fact the signatures were obtained by the Investigating Officer at the available places of the documents and there was nothing wrong with the DSP to obtain the signatures at those places as his signatures do not in any Crl. Appeal No. 1186-SB of 2000 -8- *** way indicate that Amrit Lal was not present at the spot. DSP Sukhwinder Singh has given minute details of the facts and corroborated the testimony of the complainant. He is an official witness, but merely on that ground his testimony cannot be discarded. An official witness commands the same respect as any other witness. The testimony of official witness cannot be discarded and excluded from consideration for his status as such provided on scrutiny, his testimony is found trustworthy. DSP Sukhwinder Singh had no enmity with the accused to implicate him falsely in the case. He is a witness to the trap so as the complainant. The court is well justified in acting on uncorroborated testimony of the trap witness, if the court is satisfied from the facts and circumstances of the case that the trap witness is a witness of truth. Nevertheless, the shadow witness as well as the trap witness have not supported the prosecution case. It is not uncommon in this world that witnesses withhold themselves from supporting the cause of the State for the reasons best known to them, yet the testimony of the complainant supported by the other circumstances as well as the testimony of the Investigating Officer, who is of the rank of DSP, are sufficient to prove the trap. In a judgment delivered by the Apex Court in case of Prakash Chand vs. State (Delhi Administration), 1979 Supreme Court Reports 330, facts were that Praksh Chand an Overseer-Section Officer in the Delhi Development Authority office, was charged under S. 5 (1) (d) read with s. 5 (2) of the Prevention of Corruption Act and s. 161 IPC, for demanding and accepting Rs.30/- as bribe from the trap witness Ram Niwas Sharma, an architect, for permitting him to make some necessary correction in the building plans submitted by him to comply with certain objections Crl. Appeal No. 1186-SB of 2000 -9- *** raised by the D.D.A. On a report by Shri Sharma, an Inspector of Anti- Corruption Establishment, accompanied him to the D.D.A. Office, with two panch witnesses and on receiving a pre-arranged signal, entered the room and challenged the accused who was stunned and kept mum. Then three pre-marked ten rupees notes were found in the file dealing with Sharma's matter, the file was found under the table and the accused had put foot on it. The panch witnesses did not fully support the prosecution case. They resiled from their earlier statement made in the course of investigation, were treated as hostile by the prosecution, and were disbelieved by the Courts. The accused was duly tried, convicted and sentenced, and the conviction was upheld by the High Court. Under these circumstances, the Apex Court while acting upon the testimony of the trap witness observed as under :- “HELD : (1) We are unable to agree that no conviction can ever be based on the uncorroborated testimony of a “trap witness”. Where the circumstances justify it, a court may refuse to act upon the uncorroborated testimony of a trap witness. On the other hand a court may well be justified in acting upon the uncorroborated testimony of a trap witness, if the court is satisfied from the facts and circumstances of the case that the trap witness is a witness of truth.” In the instant case, the recovery of the money has been duly established by the complainant while proving statement under Section 27 of Evidence Act, made by the accused and the recovery memo prepared pursuant thereto. It also stands corroborated from the testimony of DSP Crl. Appeal No. 1186-SB of 2000 -10- *** Sukhwinder Singh. Further corroboration is found from the hand wash effected upon the accused by the Investigating Officer. Under these circumstances, presumption under Section 7 of the Act is obligatory. It is presumption of law and casts an obligation on the court to operate it in every case brought under Section 7 of the Act. The presumption is rebuttable and could be rebutted by proof and not by explanation which seems to be plausible. The hand wash and pant wash were sent for analysis to the Forensic Science Laboratory and the solution so sent was found to be mixture of phenolphthalein powder and sodium carbonate. The currency notes duly recovered were proved in the Court. The Apex Court in case T. Shanker Prasad vs. State of Andhra Pradesh, 2004 (1) RCR (Crl. ) 784 observed that the proof of recovery of the tainted money from the accused does not mean proof by rigid mathematical demonstration because it is impossible. It must mean such evidence as would induce a reasonable man to come to a particular conclusion. It was further observed that where bribe money is recovered as a result of trap and the trap witness turned hostile, the court may convict the accused on the basis of the statement of the complainant and the official witnesses and other circumstantial evidence. While emphasizing to rely upon the testimony of the police officer who laid the trap, the Apex Court in case Hazari Lal vs. The State (Delhi Administration), AIR 1980 S.C. 873 observed as under :- “We are not prepared to accept the submission of Shri Frank Anthony that he is the very Police officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has Crl. Appeal No. 1186-SB of 2000 -11- *** crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case, the Court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance. We are forced to say this because of late we have come across several judgments of Courts of Session and sometimes even of High Courts where reference is made to decisions of this Court on matters of appreciation of evidence and decisions of pure question of fact. While on this subject of appreciation of evidence we may also refer to an argument of Shri Frank Anthony based on the observations of a learned single Judge in Kharaiti Lal vs. The State, (1965) 1 Delhi LT 362 that persons holding clerical posts and the like should not be called as panch witnesses, as such witnesses could not really be called independent witnesses as they would always be under fear of disciplinary action if they did not support the prosecution case. We do not think we can accept the submission of Shri Frank Anthony. The responsibility and the veracity of a witness is not necessarily Crl. Appeal No. 1186-SB of 2000 -12- *** dependent upon his status in life and we are not prepared to say that Clerks are less truthful and more amenable than their superior officers.” As regards the other argument that the recovery was not effected from the possession of the accused but it was effected from the first floor of the house which cannot be said within the control of the accused. I am not inclined to accept this argument as the ground floor and the first floor form part of the office of the accused and were in his possession and control. It has come in evidence that the witness signalled the police to arrive at the place of occurrence, the accused went upstairs and came back after concealing the money. However, hand wash effected upon him indicate that the accused had handled the bribe money, therefore, the recovery could be said to have been effected from him. Similar observations were made by this Court in case Hem Raj vs. State of Punjab, 1997 (1) RCR (Crl.) 71. In this case, the tainted money was recovered from the plastic dabba lying on the table of the accused. In those circumstances, the Hon'ble Mr. Justice H.S. Bedi, his Lordship as was there observed that the case set up by Mr. Ghai that the money was planted without the knowledge of the accused is equally without merit for the simple reason that when the hands of the accused were washed in the solution of sodium carbonate, the same turned pink indicating that the accused had, in fact handled the tainted money. As regards the necessity of the independent witness in the cases of involving police raid and police search incorporated in the statute note for the purpose of helping the accused to bypass the evidence of those Crl. Appeal No. 1186-SB of 2000 -13- *** panch witnesses who have had some acquaintance with the police or the officers conducting search at some times or the others. Acquaintance with the police itself would not destroy the main independent out look in a society where police involvement is regular phenomena. The people normally get acquainted with these class of security forces. But, as long as they are not dependent upon the police for their living or particularly or for any other matter, it cannot be said that these are not independent persons. Every citizen of India must be presumed to be an independent witness unless it is proved that he was inimical or otherwise had a motive to depose against him, the police officer being an officer in the department does not loose his conscience or spirit in himself, therefore, his evidence cannot be condemned by challenging the same on the ground that he is involved to some Detective Agency. Consequently, I do not find any reason to discard the testimony of the Investigating Officer which also stands corroborated from other circumstantial evidence. The motive to receive illegal gratification also stands established. The recovery of the currency notes having been proved from the possession of the accused attracts presumption under Section 7 of the Act. Consequently, finding no merits in the appeal, the same is hereby dismissed. April 11, 2008 (A.N. Jindal) deepak Judge To be referred to reporter: Yes/No.