Crl. Appeal No. 452-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 452-SB of 2003 Date of Decision : August 11, 2011 Kulbir Singh .... Appellant Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. P. S. Hundal, Senior Advocate with Mr. Dheeraj Mahajan, Advocate for the appellant. Ms. Gagan Mohini, AAG, Punjab. * * * L. N. MITTAL, J. (Oral) : This criminal appeal has been instituted by Kulbir Singh accused, who has been convicted and sentenced by learned Special Judge, Patiala, vide judgment and order dated 22.02.2003 to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/- and in default thereof, to undergo further rigorous imprisonment for two months under Section 7 of the Prevention of Corruption Act, 1988 (in short – the Act) and also to undergo rigorous imprisonment for 1½ years and to pay fine of Rs.1,500/- and in default thereof, to undergo further rigorous imprisonment Crl. Appeal No. 452-SB of 2003 2 for three months under Section 13 (2) of the Act. Both these sentences have been ordered to run concurrently. Prosecution case, in brief, is as under :- On 10.06.1997, complainant Bhupinder Singh of Village Shatrana, accompanied by his maternal uncle Bachan Singh, went to Chaman Lal – DSP Vigilance Bureau at Patiala and made statement Ex.P-A to the DSP alleging that complainant's father Karnail Singh died about a year back leaving behind six acres of land. The complainant, after obtaining Death Certificate of his father, met accused Kulbir Singh, Patwari for inheritance mutation of his father, but the accused kept on putting off the matter. Ultimately, the complainant met the Patwari on 10.06.1997 and requested him to enter mutation, but the accused demanded Rs.1,500/- as illegal gratification for doing the needful. The bargain was, however, struck at Rs.1,000/-. The complainant sought time from the accused, who, however, kept the Death Certificate of complainant's father. At Bus Stand Patran, the complainant met his maternal uncle Bachan Singh. The complainant disclosed the matter to him. Both of them then went to the office of DSP Vigilance. On aforesaid statement of complainant, FIR was registered. The complainant gave ten currency notes of Rs.100/- denomination to the DSP, who applied phenolphthalein powder to the same and gave it back to the complainant vide memo Ex.P-B, wherein numbers of Crl. Appeal No. 452-SB of 2003 3 the currency notes were recorded. Bachan Singh was made shadow witness. Demonstration was given to depict that paper slip treated with phenolphthalein powder, when dipped in sodium carbonate solution, turned its colour to light pink. Madan Gopal Singla – Field Officer of PUNSUP was joined in the raiding party on the way. Necessary instructions were given to the complainant and the shadow witness. On reaching Patran, the complainant and shadow witness went to the office of the accused, whereas the remaining raiding party stayed back. The complainant, on demand of the accused, gave the ten tainted currency notes to the accused, who put the same in left side pocket of his shirt. Bachan Singh gave requisite signal to the raiding party, who then entered the office of the accused. The DSP disclosed his identity to the accused. Hand-wash of the accused changed the colour of sodium carbonate solution into light pink. The solution was sealed in a nip and was seized by the police. On search of the accused, the tainted currency notes were recovered from the pocket of his shirt. Their numbers tallied with the numbers of the currency notes recorded in memo Ex.P-B. The currency notes were taken into possession by the police. Pocket-wash of shirt of the accused also turned the colour of sodium carbonate solution into light pink. The said solution was separated in a nip and was sealed by the police. Necessary investigation proceedings were conducted at the spot. Register of mutations, Register Roznamcha and Crl. Appeal No. 452-SB of 2003 4 Death Certificate of complainant's father was also seized from the office of the accused. Shirt of the accused was also taken into possession. Statements of witnesses were also recorded. Rough site plan was prepared. The accused was arrested. Sanction for prosecution of the accused was obtained. On completion of investigation, police presented report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C) for prosecution of the accused under Sections 7 and 13 (2) of the Act. Charge under Sections 7 and 13 of the Act was framed against the accused, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined eight witnesses. Head Constable Gurbhej Singh (PW-1), Constable Swaran Singh (PW-2) and Constable Amar Nath (PW-3) tendered their affidavits in evidence being formal witnesses. Inder Kumar – Junior Assistant (PW-4) proved sanction for prosecution of the accused. Hari Krishan Goel – Retired Senior Assistant (PW-5) proved service record of the accused including his posting as Patwari of the Halqa in question. Bhupinder Singh – Complainant (PW-6) and Investigating Officer DSP Chaman Lal (PW-7) broadly stated according to the prosecution version. Crl. Appeal No. 452-SB of 2003 5 Madan Gopal Singla (PW-8) stated that he had been joined in the raiding party. They went to the office of the accused and waited outside the office. On receiving signal from the complainant, DSP Vigilance rushed into the office. The witness saw ten currency notes of Rs.100/- each in the hands of DSP. The accused was made to wash his hands in glass of water, which according to the witness, contained only water and he could not say if anything was added to it. At this stage, the witness was declared hostile and was cross-examined by Public Prosecutor. Thereupon, the witness broadly admitted the prosecution version, except to some extent. Prosecution Witness Bachan Singh was given up as won over by the accused. The accused, in his examination under Section 313 Cr.P.C., broadly denied all the incriminating circumstances appearing against him in the prosecution evidence. The accused alleged that Santa Singh and Banta Singh of Village Dotal are maternal uncles of his wife. Bachan Singh – shadow witness (maternal uncle of the complainant) had a fight with Santa Singh and Banta Singh six months prior to the occurrence. The accused was helping Santa Singh and Banta Singh and for this reason, Bachan Singh was annoyed with him. Bachan Singh instigated his nephew Bhupinder Singh (complainant) against the accused and got the accused implicated in false case. It was also alleged by the accused that on 10.06.1997, at about 10:00 A.M., he was present in Tehsil Office at Patran, when a Constable came Crl. Appeal No. 452-SB of 2003 6 there and told that he (accused) was being called by DSP Chaman Lal for some inquiry on application filed by Bhupinder Singh – complainant. The accused accordingly went there, who was then falsely implicated in this case in connivance with Bhupinder Singh and DSP Chaman Lal. In defence, the accused examined Kuldip Singh (DW-1) resident of Village Paind. He broadly stated according to the defence version. Learned Special Judge, Patiala, vide detailed judgment dated 22.02.2003, convicted the accused under Sections 7 and 13 (2) of the Act and after hearing the parties on quantum of sentence, vide order of even date, sentenced the accused, as already noticed in the opening part of this judgment. Feeling aggrieved, the convict has preferred the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellant vehemently contended that there is no evidence of demand of bribe by the accused because there is sole statement of complainant in this regard and even the complainant, although stated about the demand in the first instance before lodging of FIR, did not state about any demand of bribe by the accused at the time of trap. It was also pointed out that Bachan Singh – shadow witness, who could state about the demand at the time of trap, has not been examined by the prosecution. It Crl. Appeal No. 452-SB of 2003 7 was thus contended that sole testimony of complainant is not sufficient to prove the alleged demand of bribe by the accused and consequently, guilt of the accused is not proved because demand of bribe is essential ingredient of the offences in question. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Panalal Damodar Rathi vs. State of Maharashtra reported as AIR 1979 Supreme Court 1191 and two judgments of this Court namely Jarnail Singh vs. State of Haryana reported as 1991(1) RCR (Criminal) 351 and Dalip Singh vs. State of Punjab reported as 1988 (1) RCR (Criminal) 123. It was also submitted that mere recovery of tainted currency notes is not sufficient to prove the demand and acceptance of bribe. Reliance in support of this submission has been placed on judgment of Hon'ble Supreme Court in the case of A. Subair vs. State of Kerala reported as 2009 Crl. L. J. 3450. It was also canvassed that the Investigating Officer has not stated that before searching the accused, he had offered his own search and for this reason also, the accused deserves acquittal. Reliance in support of this contention has been placed on unreported judgment dated 15.01.2010 of this Court passed in Criminal Appeal No.322-SB of 2001 titled Balwinder Singh vs. State of Punjab. Learned counsel for the appellant also pointed out that the complainant, in cross-examination, stated that he alone went to the office of the accused depicting that Bachan Singh did not accompany him. It was Crl. Appeal No. 452-SB of 2003 8 also submitted that Madan Gopal Singla (PW-8) has not stated about recovery of the tainted currency notes from the accused, whereas complainant and Investigating Officer have not stated as to who conducted the search of the accused to recover the tainted currency notes. It was also argued that the tainted currency notes were not sent to Chemical Examiner to depict that the same had been treated with phenolphthalein powder. It was also contended that Bachan Singh, joined as shadow witness in the raiding party, was real maternal uncle of the complainant, and therefore, instead of Bachan Singh as shadow witness, some other independent witness should have been joined in the raiding party to act as shadow witness. It was pointed out that no independent witness was, however, joined, although public persons were readily available. Testimony of Madan Gopal Singla was also assailed on the ground that he was posted in PUNSUP and he admitted that some officers of PUNSUP were facing vigilance inquiry and thus, the witness was under the influence of vigilance officials. On the other hand, learned State counsel contended that the testimony of the complainant is sufficient to prove the demand and acceptance of bribe by the accused. His statement is corroborated by recovery of the tainted currency notes, as stated by the complainant as well as by the Investigating Officer. Recovery of the tainted currency notes from the accused is further corroborated by hand-wash and pocket-wash of shirt Crl. Appeal No. 452-SB of 2003 9 of the accused. It was thus canvassed that the accused had been rightly convicted by the trial Judge. I have carefully considered the rival contentions. Complainant Bhupinder Singh has fully supported the prosecution case. He has stated that he had been going to the accused for getting inheritance mutation of his father entered, but the accused kept on putting off the matter and ultimately, demanded Rs.1,500/- as bribe for doing the needful. The complainant's statement about demand of bribe money by the accused is corroborated by recovery of the tainted currency notes from the accused, as proved by the statements of the complainant and the Investigating Officer. Their statements about recovery of bribe money from the accused are further corroborated by hand-wash and pocket-wash of shirt of the accused. Madan Gopal Singla (PW-8) has also broadly supported the prosecution case except about recovery of the tainted currency notes from the pocket of the accused. There is no reason why all these witnesses would depose falsely against the accused. As regards credibility of the testimony of Madan Gopal Singla (PW-8), the contention that being employee of PUNSUP, he was under the influence of vigilance officials as vigilance inquiries were pending against some officers of PUNSUP, cannot be accepted. Madan Gopal Singla was not facing any vigilance inquiry. The nature of his testimony in the witness- box rather depicts that he was not at all under the influence of Vigilance Crl. Appeal No. 452-SB of 2003 10 Bureau and rather the witness tried to help the accused. In this context, demeanour of the said witness has been noted by the trial Judge. In the course of recording his statement, the trial Judge had to warn the witness of the consequences of his endeavour to suppress the truth from the Court. This observation by the trial Judge depicts that the witness was intentionally trying to suppress the truth in order to help the accused. However, nevertheless the witness broadly admitted the prosecution version when cross-examined by the Public Prosecutor, although the witness still denied the recovery of the tainted currency notes from left side pocket of shirt of the accused. Nevertheless the testimony of this witness also lends credence to the prosecution case to a great extent. The defence version that the accused has been falsely implicated on account of land dispute of complainant's maternal uncle Bachan Singh with Santa Singh and Banta Singh – maternal uncles of wife of the accused is completely unacceptable. If it had been the reason for implicating the accused in a false case, Bachan Singh would have been the first person to appear in the witness-box and to support the prosecution case against the accused to the hilt. However, Bachan Singh had to be given up as won over by the accused and it depicts that the defence version in this regard is not acceptable. It may also be added that the accused has examined Kuldip Singh (DW-1) in defence. However, Kuldip Singh does not belong to Crl. Appeal No. 452-SB of 2003 11 Village Dotal, where Bachan Singh as well as Banta Singh and Santa Singh reside. Kuldip Singh belongs to a different Village Paind. No person from Village Dotal has been examined as witness in defence. Moreover, Kuldip Singh appears to be all-weather witness for the accused. He was omnipresent. He stated about land dispute of Santa Singh and Banta Singh with Bachan Singh. He also stated about convening of Panchayat in Village Dotal. He also stated that on 10.06.1997, he was present in Tehsil Office at Patran, when the accused was taken away by a Constable of Vigilance Department telling that the accused had been called by DSP Chaman Lal. The presence of Kuldip Singh in Village Dotal regarding the alleged dispute or his presence in Tehsil Office at Patran on 10.06.1997 is, to say the least, purely coincidental and he is completely chance witness. His testimony cannot be accepted. In addition to it, prosecution witnesses i.e. complainant, Investigating Officer and Madan Gopal Singla were not even suggested in cross-examination that the accused had been taken from Tehsil Office by a Constable. Thus, this version put forward by the accused is completely unacceptable being after-thought. There is also no reason why DSP Chaman Lal would implicate the accused in a false case merely at the asking of the complainant and the shadow witness. There is also no reason why Madan Gopal Singla would depose against the accused. Even this witness, although tried to help the accused, stated that he had been joined in the raiding party and office of the Crl. Appeal No. 452-SB of 2003 12 accused had been raided and the proceedings were conducted at the spot. Various memos had been signed by this witness as well. The testimony of this witness further negatives the defence version and corroborates the prosecution case. As regards ingredient of demand and acceptance, acceptance of the bribe money by the accused is fully established, as stated by the complainant and as also proved by the recovery of the tainted currency notes from the accused, as deposed to by the complainant and Investigating Officer. As regards demand, it is correct that there is solitary statement of the complainant regarding the demand of bribe money by the accused. However, his testimony cannot be discarded merely because Bachan Singh – shadow witness had to be given up as won over by the accused. As regards demand at the time of trap, the testimony of complainant has to be read as a whole and read in conjunction with demand of illegal gratification made by the accused earlier, the complainant stated that at the time of trap, he inquired about the mutation from the accused and the accused accepted the money i.e. tainted currency notes. The statement read as a whole, thus, would depict that the amount was paid pursuant to demand made by the accused. Judgments cited by the counsel for the appellant are completely distinguishable on facts. In the case of Panalal Damodar Rathi (supra), the appellant was Police Prosecutor. However, the bribe money was not Crl. Appeal No. 452-SB of 2003 13 paid to him, but was allegedly paid at his instance to second accused (Naib Court/police official). Thus, in that case, the tainted currency notes were not recovered from the appellant. In this view of the matter, the appellant was given benefit of doubt, coupled with circumstance that the testimony of the complainant regarding demand had not been specifically supported by the Panch witness. Moreover, in that case, Section 165-A of the Indian Penal Code was also involved, but the said provision is no longer on the Statute Book. In view of the said provision, the statement of complainant was held to be not better than that of accomplice. The facts of that case were thus completely different. Similarly, judgments of this Court in the cases of Jarnail Singh and Dalip Singh (supra) are also distinguishable on facts. The contention that according to the complainant, he alone had gone to the office of accused at the time of the trap and was thus not accompanied by Bachan Singh – shadow witness, is misconceived. The complainant categorically stated in examination-in-chief that Bachan Singh also accompanied him at the time of trap. In cross-examination, it was first put to the complainant as to whether vigilance officials also accompanied him to the office of accused at the time of raid. The complainant stated that he did not accompany the vigilance officials initially to the office of accused, but went alone in the first instance. This statement was thus made in the context of the vigilance officials accompanying the complainant and Crl. Appeal No. 452-SB of 2003 14 not in the context of shadow witness accompanying the complainant. The contention raised in this behalf is based on misreading of the testimony of the complainant, which read as a whole, clearly depicts that the shadow witness also accompanied the complainant. The contention that Madan Gopal Singla (PW-8) has not stated about recovery of tainted currency notes from the accused is not sufficient to discard the entire prosecution case. It is apparent from the demeanour of this witness noticed by the trial Judge at the time of recording evidence that the witness tried to suppress the truth from the Court. However, nevertheless the witness has broadly stated about the prosecution version except the recovery of tainted currency notes from the pocket of shirt of the accused. However, the complainant and the Investigating Officer have stated about the said recovery. Moreover, even Madan Gopal Singla (PW- 8) stated about hand-wash and pocket-wash of the shirt of the accused, thus corroborating the prosecution version regarding acceptance of tainted currency notes by the accused and recovery thereof from him. It is immaterial that the complainant and the Investigating Officer did not specifically state as to who conducted the search of the accused. However, obviously, officials of the Vigilance Bureau including the DSP conducted the search and the tainted currency notes were recovered from the shirt of the accused, as stated by the complainant and the Investigating Officer. Omission to send the currency notes to the Chemical Examiner is also not Crl. Appeal No. 452-SB of 2003 15 fatal to the prosecution case because the nips of solutions of hand-wash and pocket-wash of shirt of the accused were sent to the Chemical Examiner and vide report Ex.P-K, the said solutions were found to contain sodium, carbonate and phenolphthalein. Mere omission by the Investigating Officer to state that he had offered his own search before searching the accused would also by itself be not sufficient to acquit the accused when the prosecution evidence has been found to be credible. Hand-wash and pocket-wash of the shirt of the accused fill the said gap, if any. As regards contention of counsel for the appellant that shadow witness was relative of the complainant, the contention pales into insignificance because the shadow witness has not stepped into the witness- box and had to be given up as won over by the accused. As regards non- joining of independent witness, Madan Gopal Singla was joined as independent witness. Moreover, it is the prosecution case since inception, as also stated by DSP Chaman Lal that no other independent witness was available to be joined in the raiding party. It may also be added that in view of Section 20 of the Act, there is also presumption that the accused accepted the tainted currency notes as illegal gratification because it has been proved that the tainted currency notes were given to the accused, who accepted the same and the same were recovered from the pocket of his shirt. The said presumption has also not been rebutted. Crl. Appeal No. 452-SB of 2003 16 For the reasons aforesaid, I find that the prosecution evidence is credible and trust-worthy and is sufficient to prove the guilt of the accused beyond reasonable doubt. Accordingly, impugned judgment of conviction is upheld. As regards sentence, the occurrence took place 14 years ago. The accused has faced agony of trial including instant appeal during this long period. Counsel for the appellant also stated that the appellant has since been dismissed from service in view of his conviction. Keeping in view all these circumstances, I am of the considered opinion that sentence of imprisonment for offence under Section 13 (2) of the Act needs to be reduced to rigorous imprisonment for one year (instead of 1½ years), while maintaining the sentence of fine and sentence of imprisonment in default thereof for the said offence and also while maintaining the sentence under Section 7 of the Act as awarded by the trial Judge. It is ordered accordingly. Both the substantive sentences shall run concurrently. With reduction in sentence as aforesaid, the appeal stands disposed of accordingly. The appellant, who is on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence. August 11, 2011 ( L. N. MITTAL ) monika JUDGE