Criminal Appeal No.1016-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1016-SB of 1998 Date of decision : 25.9.2008 Baljinder Singh .....Appellant Versus State of Punjab ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Ms. Alka Chatrath, Advocate for the appellant Ms. Manjari Nehru, Deputy Advocate General, Punjab for respondent-State. ***** S. D. ANAND, J. The appellant was a Patwari for the area of village Waja during the relevant period. PW-1 Amarjit Singh (hereinafter referred to as ' the complainant') applied to obtain a copy of Jamabandi in the context of a controversy which he and his brothers, all of whom owned a total agricultural holding of 9 killas, had with one Kehar Singh who was obstructing their right of passage to reach 10 kanals of Shamlat land which, too, was in their possession for the last about 20 years. In the context, the complainant met the appellant at Patwar Khana, Burewal, on 12.7.1995. The appellant prepared the copy on that date itself but did not sign it. Prior to the preparation of that copy on 12.7.1995, the complainant had already given a sum Criminal Appeal No.1016-SB of 1998 -2- **** of Rs.150/- to the appellant. However, after preparing the copy, the appellant put forth a further demand of illegal gratification for Rs.500/-. The appellant informed the complainant that the copy would be made available to the latter only on payment of (illegal gratification of) Rs.500/-. The complainant promised to get back to him with the demanded amount the following day. Back home, the complainant held consultation with his father and one Balbir Singh. On the advice of the latter, the complainant went over to the office of DSP (Vigilance), Kapurthala, and brought facts of the notice of the officer who recorded his statement Ex. PA which was signed by the complainant. Thereafter, the complainant handed over five currency notes of Rs.100/- (Ex. P1 to Ex. P5) denomination to the DSP who noted down their numbers and demonstrated the procedure for passing on the money to the appellant. A public servant (Jaswinder Singh, a Senior Assistant in the office of the PUNSUP) was also joined to accompany raiding party. On the date of impugned occurrence i.e.13.7.1995, the complainant and Balbir Singh aforementioned went to the office of the appellant on a scooter; while the other members of the raiding party followed them in a jeep which they parked in the Rest House which was near the premises housing the office of the appellant. From there the complainant and Balbir Singh proceeded to the office of the appellant who was found available over there. Balbir Singh stationed himself at a place from where inside of the office of appellant was visible to him. The complainant requested the Criminal Appeal No.1016-SB of 1998 -3- **** appellant to do his job whereupon the latter called upon the former to pay the demanded amount and obtain the copy in lieu thereof. The complainant handed over currency notes Ex. P1 to Ex. P5 to the appellant who put the same under a register which was lying on his table. On getting the agreed signal from shadow witness Balbir Singh, the other members of the raiding party appeared on the scene. DSP Ajay Malooja conducted the personal search of the appellant and proceeded to recover the notes Ex. P1 to Ex. P5 from under the register. A glass of water was requisitioned (to which Sodium Carbonate was added) wherein the appellant was made to dip his hand and the colour of water changed to light pink. That hand wash was put into nip Ex. P6 and was sealed. It was taken into possession vide Ex. PC which was attested by Balbir Singh and Jaswinder Singh. DSP Ajay Malooja found that numbers of the currency notes recovered from under the register tallied with those already noticed in the record. Copy of Khasragirdwari (Ex. PE), which did not bear the signatures of the appellant, was taken into possession, alongwith the currency notes Ex. P1 to Ex.P5 and register Ex. P7. The above prosecution presentation was testified on oath by the complainant PW-1 Amarjit Singh, shadow witness (PW-2 Balbir Singh) and PW-7 Ajay Malooja, DSP. PW-3 Dr. Narinder Singh had examined the appellant on 13.7.1995 and found the following simple injuries on his person:- “1. An abrasion 8 cm x 6-1/2 cm reddish brownish in Criminal Appeal No.1016-SB of 1998 -4- **** colour in front of left knee joint. 2. Two abrasions 3 cm x 1-1/2 cm each present on the right side of fore-head. Reddish brownish in colour. 3. An abrasion 3 cm x 1-12/ cm present on the lateral melleous of left leg. Reddish brownish in colour.” PW-4 Ranjit Kaur, an official in the Tehsil office, Sultanpur Lodhi, proved Ex. PH, the appointment letter of the appellant as Patwari. She also proved Ex. PJ, an attested copy of the order vide which the appellant had been posted as Patwari Halqa Burewal. PW-5 Jawahar Lal, Sadar Kanugo posted in Deputy Commissioner's office, proved the signature of the then District Collector, Kapurthala, on sanction letter Ex. PK. PW-6 Constable Malkiat Singh and PW-8 Constable Varinder Kumar are formal witnesses who tendered their affidavits Ex. PL and Ex. PN respectively into evidence. PW-9 SI Manjit Singh proved Ex. PQ, an original application which had marked to him by DSP, Sultanpur Lodhi and which the witness further marked to ASI Nirmal Singh, for verification. The appellant claimed to be innocent and averred as under, in the course of statement under Section 313 Cr.P.C.:- “I am innocent. This false case has been foisted on me because of enmity as Amarjit Singh was having criminal cases against his uncle Sohan Singh and he was Criminal Appeal No.1016-SB of 1998 -5- **** suspecting that I was helping Sohan Singh his uncle.” DW-1 Arvind Sood, Handwriting and Finger Prints Expert was examined in defence to prove that the entries in Ex. PE are not in the nand of the appellant. The prosecution presentation found favour with the learned Trial Judge who convicted the appellant for an offence under Section 7 read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to undergo imprisonment for a period of three years and to pay a fine of Rs.2,000/-. The appellant is in appeal. Ms. Alka Chatrath, learned counsel appearing on behalf of the appellant, assailed the impugned finding of indictment with the following items of criticism:- 1. The prosecution presentation does not deserve to be relied upon in view of the fact that the shadow witness has not been proved to be an independent witness. In support of the advocated view that joining of a partisan person, as shadow witness, casts a doubt upon the veracity of the prosecution plea, reliance was placed upon Amrik Singh Vs. State of Punjab 2005(4) R.C.R. (Criminal) 310. 2. The impugned recovery had not been effected from the person of the appellant and the learned Trial Court could not have recorded a finding of conviction just because the result of the phenolphthalein test proved Criminal Appeal No.1016-SB of 1998 -6- **** positive. In support of that averment, reliance was upon State by Inspector, Vigilance and Anti Corruption Dept. Vs. K.M.Ravi 2002(4) R.C.R.(Criminal) 679 and Suraj Mal Vs. The State (Delhi Administration) AIR 1979 Supreme Court 1408. I have heard Mr. Alka Chatrath, learned counsel appearing on behalf of the appellant and Ms. Manjari Nehru, learned Deputy Advocate General, Punjab and carefully gone through the record. The prosecution presentation does not appear to be credible. The reasons therefor are given hereunder:- The only independent member of the raiding party (Jaswinder Singh, a Senior Assistant in the office of PUNSUP) had been joined in the raiding party but he was not examined at the trial. His non-examination at the trial would not have been, in the normal course of things, all important but for the fact that even the shadow witness in the present case has not been proved to be a man of independent credentials. As conceded by Balbir Singh shadow witness himself, Sohan Singh, an uncle of PW-1 Amarjit Singh, was facing a prosecution on a charge of having murdered a son of Balbir Singh himself. That was a private complaint filed by Balbir Siongh against Sohan Singh afore-mentioned. In that case, father of PW-1 Amarjit Singh had appeared as a witness for the complainant. (“Sohan Singh uncle of Amarjit Singh PW was an accused regarding the murder of my son. We had to file complaint against said Sohan Criminal Appeal No.1016-SB of 1998 -7- **** Singh regarding that murder case. In that complaint case father of Amarjit Singh PW had appeared as a witness for us”). In that context, it may be noticed that PW-1 Amarjit Singh also conceded that “the murder case against my uncle Sohan Singh was regarding the murder of the son of Balbir Singh PW in this case.” The position, as apparent from the record, is that Balbir Singh was under a 'debt' to Amarjit Singh in the context noticed above. This part of the fact based finding falsifies the averment made by PW-1 Amarjit Singh that “Balbir Singh is only known to me as co-villager.” There was, thus, an attempt (abortive though) on the part of PW-1 Amarjit Singh to conceal his relate-ability to Balbir Singh who, in any case, cannot be said to be an independent witness. It was held in Kuldip Rai Vs. State of Punjab 2002 (2) RCR (Criminal) 781 that the witnesses of trap, in a case under the Prevention of Corruption Act, cannot be viewed as independent witness and that their testimony is required to be corroborated by independent evidence. In Amrik Singh's case (Supra) also, it was held by this Court that an attempt made by the complainant to suppress the fact that shadow witness had a relate- ability to him, casts the doubt on the veracity of the prosecution case. In the present case as well, it is apparent from the record that PW-1 Amarjit Singh did try to suppress the fact that he had relate- ability/connection to shadow witness Balbir Singh. Insofar as change of colour of hand wash of the appellant and the recovery of currency notes from under a register lying on the table of the appellant are concerned, those are not sufficient to Criminal Appeal No.1016-SB of 1998 -8- **** prove the charge against the appellant. This view is buttressed by the law laid down by the Apex Court in Suraj Mal's case (Supra) It would also be pertinent to notice here that there are certain other lacunae as well in the prosecution presentation. For example, PW-1 Amarjit Singh testified on oath that “The accused had given me unsigned copy of Khasra girdwari 2-3 days prior to 12.7.1995. I had shown this copy given by the accused to me while making statement Ex. PA. I had shown the copy Ex. PE to the DSP.” He was falsified on that point by PW-7 DSP Ajay Malooja, who categorically averred, in course of his cross-examination, that “Amarjit Singh had not shown me copy of Khasra girdawari which was unsigned at the time of lodging the report Ex. PA.” Further, PW-1 Amarjit Singh told the Court that copy of revenue record was handed over by the appellant to him on 12.7.1995 but that copy afore-mentioned did not bear the signatures of the appellant. As against it, it is in the testimony of DSP Ajay Malooja that he recovered the relevant document (Ex. PE) “from the possession of the accused on 13.7.1995”. He did not get the specimen signatures of the appellant compared with the contents of Ex. PE. As against it, the appellant examined DW-1 Arvind Sood who, on the basis of comparison, gave a definite opinion that the handwriting of the contents of Ex. PE do not tally with the specimen handwriting of the appellant. He also opined, in the context, that the disputed writing Q1 is “clear cut pieces of free hand forgery by impersonation.” In the totality of the circumstances of the case, it is held that finding of indictment recorded by the learned Trial Judge is not Criminal Appeal No.1016-SB of 1998 -9- **** sustainable. The appeal shall stand allowed. The impugned finding of conviction shall stand set aside. The appellant is acquitted of the charge. September 25, 2008 (S. D. ANAND) Pka JUDGE