HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CRA No.1280-SB of 2001 (O&M) Date of Decision: 13th October, 2011 **** Vinod Kumar . . . . Appellant VS. State of Punjab . . . Respondent **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Vikram Chaudhri, Advocate for the appellant Mr. BS Sra, Addl. AG Punjab ***** SURYA KANT, J. (1). This appeal is directed against the judgement and order dated 24th October, 2001 passed by the Special Judge, Patiala whereby the appellant has been convicted and sentenced to undergo RI for a period of two years along with fine of Rs.2500/- in the case FIR No.7 dated 25.01.1995 under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (in short, ‘the Act’) registered at Police Station Vigilance Bureau, Punjab at Patiala. (2). The case of the prosecution is that the complainant (Baj Singh) used to bring earth in tractor trolley within the Municipal area of Rajpura. The appellant, who was posted as Octroi Inspector started demanding Rs.20/- per CRA No.1280-SB of 2001.doc - 2 – trolley for permitting it to enter the Municipal area. However, a deal was struck to pay Rs.500/- per month to the appellant as bribe. The complainant met one Jagdish Verma on 25.01.1995 and disclosed to him the demand of Rs.500/- from the appellant for carrying earth in the tractor trolley into the Municipal area. Since the complainant did not want to give bribe, he approached the Vigilance authorities along with Jagdish Verma and narrated the entire story to the DSP Vigilance. The Vigilance Authorities laid a trap and explained to the complainant and Jagdish Verma as to how the colour of the water will change to light pink when Sodium Carbonate solution is mixed in it and thereafter phenolphthalein powder is mixed in it. The complainant gave five notes of Rs.100/- each to the DSP Vigilance who treated them with phenolphthalein powder after noting down their numbers. All of them washed their hands. On the request of the DSP Vigilance, the Tehsildar deputed Sher Singh, the Clerk to join the police party as an independent witness. All of them then went to the office of the appellant. When the complainant (Baj Singh) and Jagdish Verma entered his office and met the appellant, he demanded the bribe whereupon Baj Singh gave him Rs.500/-. No sooner did the appellant receive CRA No.1280-SB of 2001.doc - 3 – the bribe than Jagdish Verma gave a signal and the Vigilance party appeared and apprehended the appellant. The DSP Vigilance introduced himself to the appellant by name; the mixture of water and Sodium Carbonate was prepared in a glass of water and the hands of the appellant were dipped in the same due to which the colour of the water turned light pink. The said water was put in a container and sealed. The currency notes amounting to Rs.500/- were recovered from the pant of the appellant which were taken into possession. The right pocket of the appellant’s pant was also dipped into the mixture of water and Sodium Carbonate due to which the colour of the Solution changed to light pink. The said Solution was also separately sealed and the pant of the appellant was taken into possession. The number of currency notes were compared and they tallied. On appellant’s personal search, Rs.310/- were recovered from him which were also taken in possession. The statement of the witnesses were recorded and the case property was deposited. The challan was presented against the appellant and on its consideration charges were framed under Sections 7 and 13(2) of the Act. (3). In order to bring the guilt home, the prosecution examined eight witnesses out of whom PW1, PW2, PW3 CRA No.1280-SB of 2001.doc - 4 – & PW4 were formal witnesses only. The complainant (Baj Singh) appeared as PW5 and did not support the prosecution case. He was declared hostile. He deposed that the Octroi staff used to charge Rs.20/- per trolley and always issued the receipts; the appellant did not demand any money though he suspected that he wanted to take bribe hence he went to the Vigilance office where he handed over Rs.500/- to three/four persons but the same were never returned to him after application of phenolphthalein powder nor any demonstration was given to him. He denied to have paid Rs.500/- to the appellant as bribe or recovery thereof in his presence. (4). PW6 (Sher Singh) was a Clerk at the office of Tehsildar, Rajpura and was joined with the police raiding party as an ‘independent’ witness. He supported the prosecution case and deposed that he joined the Vigilance party headed by the DSP Narender Kumar Kaushal on 25.01.1995. On the instructions of the Tehsildar, he was introduced to the complainant and Jagdish Verma (shadow witness). The complainant and the shadow witness together went inside the Octroi post and paid Rs.500/- as bribe to the appellant and on receiving signal from Jagdish Verma, the Vigilance party including the said witness went inside and caught the accused from his CRA No.1280-SB of 2001.doc - 5 – wrist and thereafter got his hands washed in a glass of water mixed with Sodium Carbonate solution which turned pink. The witness explains as to how the said water was sealed and was attested by him and Jagdish Verma. He has also deposed that on search of the accused Rs.500/- in the denomination of Rs.100/- were recovered and their numbers tallied with the numbers mentioned in Ex.PE. The notes were taken in possession vide Ex.PH which was also attested by him and the shadow witness Jagdish Verma. The pant of the accused was also got removed after arranging another pant and its pocket was washed in the mixtured water which changed to light pink and the said water was also put in a nip and sealed. The pant was also separately sealed in a parcel. Some relevant records were also taken in possession from Sat Pal, Superintendent and a memo in this regard was prepared. (5). PW7 (Jagdish Verma) appeared and his examination-in- chief was recorded on 13.09.1999 wherein he supported the prosecution case on dotted line with absolute consistency. His cross-examination was deferred and finally he was cross-examined on 25.05.2001. In his cross-examination, PW7 (Jagdish Verma) demolished the prosecution case and denied of witnessing the payment of CRA No.1280-SB of 2001.doc - 6 – Rs.500/- bribe by the complainant to the appellant or its recovery in his presence. He further deposed that his signatures were obtained on 4-5 papers in the Court complex which have been shown to him as Ex.PB, PF, PE, PG, PH, PJ & PK. He also deposed that his statement in Court on 13.09.1999 was at the instance of Vigilance Inspector, as per his tutoring and threats that he would be involved in a case. He denied accompanying Baj Singh to the Vigilance Department at any point of time. The witness was declared hostile on the request of the Public Prosecutor and was re-examined. (6). PW8 is DSP Narender Pal Kaushal of the Vigilance Bureau who led the raiding party on 25.1.1995. He has deposed that Baj Singh (complainant) came to his office along with Jagdish Verma and made a statement in Punjabi which was duly attested by him. Thereafter he explains in detail regarding the steps taken by him for the preparation of the raid and how was it conducted. The witness has also deposed that he requested Tehsildar, Rajpura for deputing some Government employee as witness and that Sher Singh PW6 was introduced to the complainant (Baj Singh) and Jagdish Verma (shadow witness). The witness further explains as to how the raid was conducted and how Jagdish Verma CRA No.1280-SB of 2001.doc - 7 – gave a signal and then he apprehended the accused. The manner in which samples were taken, put into nips and seals, has also been stated in detail. DSP Narender Pal Kaushal has been cross-examined at length and the only discrepancy worth noticing in his deposition pertained to the location of the office of the accused-appellant or of the preparation of the documents in his own hand-writing. While Sher Singh (PW6) has deposed that the documents/memos were prepared by DSP Narender Pal Kaushal in his own handwriting, DSP Narender Pal Kaushal has deposed that none of these documents is in his hand though the same were prepared at his instance by the subordinate officials. (7). The appellant in his statement under Section 313 Cr.PC denied the allegations and took the defence plea that he has been falsely implicated due to party faction and enmity. He has also stated that he was caught from his office and was taken to the office of Tehsildar and from there to the Vigilance office. (8). The learned Special Judge, Patiala held that even though the complainant and the shadow witness (partly) have not supported the prosecution case, nevertheless the prosecution was able to prove the demand and acceptance of bribe by the accused as well as recovery of the tainted CRA No.1280-SB of 2001.doc - 8 – money from the accused giving rise to the presumption that the complainant had paid the demanded money to the public servant. The appellant was accordingly convicted under Section 7 of the Act and sentenced to undergo RI for two years and fine, as stated at the outset. (9). I have heard learned counsel for the parties at some length and gone through the record. (10). It is vehemently urged on behalf of the appellant that - (i) the complainant (Baj Singh) PW5 has categorically deposed that no bribe was ever demanded nor he paid any bribe money to the appellant. The shadow witness Jagdish Verma in his cross-examination has also denied the demand or payment of bribe money in his presence. In this manner, payment of bribe i.e. three ingredients of ‘offer’, ‘demand’ and ‘acceptance’ have not been proved; (ii) Even as per the prosecution case no bribe money was paid to the appellant in the presence of the official witness Sher Singh (PW6); (iii) assuming that the tainted currency notes were recovered from the pocket of the appellant yet mere recovery by itself cannot prove the charge of prosecution in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money and the presumption under Section 20 of the Act stands rebutted by the fact CRA No.1280-SB of 2001.doc - 9 – that the complainant and the shadow witness turned hostile as held by the Hon’ble Supreme Court in a recent case in Banarsi Dass v. State of Haryana, 2010(2) RCR (Crl) 553; (iv) The DSP Vigilance did not offer himself for search before conducting the search of the appellant and it would not be safe to convict the appellant merely on the statement of the Investigating Officer, as held by this Court in Karnail Singh v. State of Punjab, 2009(1) RCR (Crl.) 403 and Naunihal Singh v. State (through CBI/ACB Punjab) Chandigarh, 2009(2) RCR (Crl.) 360 (v) The Investigating Officer DSP Narenderpal Pal Kaushal (PW8) and the official witness Sher Singh (PW6) have admitted the fact that the Octroi office is surrounded by some shops and market and it’s a public place yet no independent public person was joined as a witness. (vi) The location and directions of the office of the appellant as given by the official witness (PW6) on one hand and by DSP Vigilance (PW8) on the other are altogether different which shows that no raid was conducted and the prosecution story has been concocted in the police station of Vigilance Bureau. (11). On the other hand, it is urged by learned State counsel that the appellant need not be acquitted only because he CRA No.1280-SB of 2001.doc - 10 – was able to win over the complainant and kept on delaying the cross-examination of PW7 Jagdish Verma until he succeeded to influence the said witness and take a somersault in the cross-examination. He urged that where the independent witnesses have supported the prosecution case which is also corroborated by the documentary evidence comprising the memos and when such independent witnesses have no such previous enmity against the accused, the conviction can sustain even if the complainant and the shadow witness have turned hostile. It is also argued that since the appellant has failed to explain the presence of phenolphthalein powder on his hands and the tainted currency notes recovered as a result of the raid, statutory presumption under Section 20(1) of the Act could be drawn against the appellant. Learned State counsel maintained that minor discrepancy in the statement of witnesses are liable to be ignored, especially when the witnesses are examined after a long spell and overtaken by events. Learned State counsel relies upon two decisions of this Court in Yashpal Khanna and Anr. v. State of Punjab 2009 (5) RCR (Crl.) 425 and Jagtar Singh v. State of Punjab 2010(3) RCR(Crl) 46. CRA No.1280-SB of 2001.doc - 11 – (12). It is an elementary principle of criminal jurisprudence that an accused cannot be convicted only on the basis of an inference, as commission of offence has to be proved beyond reasonable doubt, through direct or circumstantial evidence. In bribery cases the prosecution is required to establish three basic ingredients of offence namely, demand of bribe; its acceptance; and recovery of the tainted money from the possession of the accused. If the prosecution evidence lacks in proving any of these ingredients, it would be unsafe to convict the accused. It may not be necessary that a public servant shall demand bribe always in the presence of an independent witness. In case of traps which often are well-planned and well- rehearsed by the Police, the acceptance and recovery of the tainted money from the possession of the accused would be simultaneous events and thus both can be proved beyond any reasonable doubt with the aid and support of an independent witness. (13). Who shall constitute an ‘independent witness’ is ordinarily a question of fact depending upon several factors and on case to case basis. In general parlance, an ‘independent witness’ would be a person who is not likely to be influenced upon by the prosecution or the accused as in the ordinary course of his life he neither requires CRA No.1280-SB of 2001.doc - 12 – any favour from the public servant suspected of being corrupt nor he fears any consequences at the hands of the prosecuting agency who is oftenly accused of false implications. It is thus inherent in the character of an independent witness that he is neutral and shall give truthful version of the events as witnessed by him. (14). It is also trite that where the prosecution version advanced by the Investigating Officer through his deposition on oath has been duly supported by some independent witness it would suffice to nail the accused and bring the guilt beyond any reasonable doubt even if the complainant or the shadow witness have fled the scene. (15). In the light of the facts and legal principles briefly noticed above, it is to be seen as to whether the prosecution in the instant case has succeeded in discharging its three-tier burden, namely, (i) demand of bribe; (ii) its acceptance; and (iii) the recovery of the tainted money from the possession of the accused. (16). With reference to the first ingredient i.e. demand of bribe, the complainant – Baj Singh (PW5) and the shadow witness – Jagdish Verma (PW7) both in their statements recorded under Section 161 Cr.PC on 25th January, 1995 are said to have stated that the appellant was demanding CRA No.1280-SB of 2001.doc - 13 – Rs.500/- per month as bribe to permit the complainant to enter the Municipal limits of Rajpura with the tractor trolley carrying earth. The Octroi duty required to be paid was Rs.20/- per trolley but the complainant with a view to lessen the burden is said to have approached the appellant who agreed to allow his trollies to enter the Rajpura town without paying any Octroi fee subject to the complainant’s paying the bribe of Rs.500/- per month to the appellant. The trap was accordingly laid and as per the prosecution version a sum of Rs.500/- in the denomination of Rs.100/- notes duly treated with phenolphthalein powder was accepted by the appellant from the complainant while sitting in his office and the incident was duly witnessed by Jagdish Verma (PW7). Baj Singh – the complainant appeared as PW5 and demolished the prosecution case. He admitted to have visited the office of Vigilance Bureau as he suspected that the appellant wanted bribe but denied that he handed over Rs.500/- or any Phenolphthalein powder was applied or that the appellant took any bribe from him. Baj Singh (PW5) was declared hostile and in his cross examination also he went haywire against the prosecution. CRA No.1280-SB of 2001.doc - 14 – (17). The shadow witness Jagdish Verma (PW7) in his examination-in-chief recorded on 13.9.1999, has fully supported the prosecution case minutely explaining as to how Baj Singh told him regarding demand of bribe by the appellant or he suggested to make a complaint to the Vigilance Department; he accompanied the complainant to the Vigilance Office; they were given demonstration as to how phenolphthalein powder works when it is put in a mixture of water and sodium; Baj Singh produced a sum of Rs.500/- in the denomination of Rs.100/- notes which were treated with Phenolphthalein powder; their numbers were noted in the memo Ex.PE and the said memo was duly attested by him and Baj Singh; the search was conducted and Baj Singh was left with no money; that they were introduced to official witness – Sher Singh (PW6); that the appellant demanded and was given the bribe money by Baj Singh; that he gave a signal to the Vigilance party who came inside and apprehended the accused red-handed; the amount of Rs.500/- was recovered from the right side pocket of the pant of the appellant which was also dipped in the mixture of water and sodium and its colour turned light pink; recovery memo Ex.PJ was duly prepared and attested; the bribe money was recovered vide memo Ex.PF; and some record CRA No.1280-SB of 2001.doc - 15 – was taken into possession from Satpal Puri – Superintendent of the office vide recovery Ex.PB. The cross-examination of this witness, however was deferred and finally he appeared on 25.05.2001 i.e. after 1 ½ year for his cross-examination wherein he not only wanted to disown what he deposed on oath before the Court on 13.09.1999 but also accused the Vigilance Inspector for tutoring and threatening him for the said deposition. He was also declared hostile leaving no option but to admit the following in his re-examination:- “I have seen my signatures on my statement dated 13.9.99. It is correct that I have made the statement in the Court on 13.9.99 on oath. I did not make any complaint to the Presiding Officer of the Court in writing or verbally that the Inspector was threatening me to make a false statement in the Court. I did not make any such complaint to the accused or to his counsel. I did not state that I had given the statement in the Court on account of fear of false implication by the Inspector. It is correct that I had signed my statement dated 13.9.99 after going through and admitting it to be correct. I did not state in my statement dated 13.9.99 in the Court that recovery of tainted money was not effected in my CRA No.1280-SB of 2001.doc - 16 – presence from the accused or that I had been told by the Inspector that amount has been recovered from the accused. I had also not stated in my said statement that the accused and witnesses were taken to the Tehsil and it was there that I had signed all the memos.” (18). In my considered view, the complete statement of Jagdish Verma (PW7) has to be weighed with a view to separate grain from the chaff. The fact that the witness never ever made any complaint to the Presiding Officer for a long period of over one year regarding the alleged “pressure” mounted on him to depose against the appellant nor he admittedly approached the senior Police authorities against the Vigilance Inspector who had threatened him to extract the ‘tutored’ version in favour of the prosecution, coupled with his candid admission in re- examination regarding affixing signatures on various recovery memos, leaves no reason to doubt that his second and later version recorded on 20.05.2001 which is inconsistent with the other material evidence on record, is a tainted and polluted version. (19). The independent witness – Sher Singh, a Clerk from the office of Tehsildar, Rajpura (PW6) has fully supported the CRA No.1280-SB of 2001.doc - 17 – prosecution version and minutely explained the stage from where he was associated before the trap was laid; his introduction with the complainant and the shadow witness; the signal given by the shadow witness regarding payment of the bribe money and its recovery from the appellant in his presence. It may be true that the version of Sher Singh (PW6) falls short of witnessing the demand of bribe money by the appellant but if one reads the examination-in-chief of the shadow witness (PW7) coupled with the version of Sher Singh (PW6), there can indeed be no doubt that the first ingredient of the demand of bribe by the appellant stands proved. (20). The fact that the complainant has not supported the prosecution case is wholly inconsequential for the reason that the association of Jagdish Verma (PW7) with the complainant before the real incident took place has been admitted by the latter in his examination-in-chief. The fact that Jagdish Verma accompanied the complainant to bribe the appellant also stands proved from his examination-in-chief coupled with deposition of the official witness Sher Singh. (21). The acceptance of the bribe money by the appellant also stands approved from the examination-in-chief of Jagdish Verma (PW7), if read in conjunction with the statement CRA No.1280-SB of 2001.doc - 18 – of Sher Singh PW6 regarding recovery of those very currency notes of Rs.100/- in denomination as their numbers were duly noted in the memo Ex.PE. The Chemical Examiner’s report of the hand-washed liquid or of the one wherein the right-hand side pocket of the appellant’s pant was dipped have also fully substantiated the recovery of the currency treated with Phenolphthalein powder from the appellant’s possession. (22). The contention that demand or acceptance of the bribe money has not been corroborated by any independent witness is partly true as the complainant has resiled. The version of the shadow witness, in my considered opinion, cannot be brushed aside merely because his cross-examination is in contradiction with his examination-in-chief. It is well settled that the statement of a witness has to be critically examined in toto and not in piecemeal. A plain reading of the examination-in-chief, cross-examination and re- examination of Jagdish Verma (PW7) leaves no room to doubt that the witness was won over after he had already spill the bins of truth in his examination-in-chief. His candid admissions in the re-examination are sufficient to discard his cross-examination. CRA No.1280-SB of 2001.doc - 19 – (23). In Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, (2009) 6 SCC 712, the Apex Court while expressing its anguish over the malice and menace of the witnesses turning hostile to the case of prosecution and with reference to the Fourth Report of the National Police Commission, observed that :- “The Commission also found that one of the primary reasons for the failure of the prosecution was the propensity