Criminal Appeal No.1046-SB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.1046-SB of 2001
Date of decision 06.7.2009.
Surjit Singh
...... Appellant.
versus
The State of Punjab & others
...... Respondents.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Mr. T.P.Singh, Advocate for the appellant.
Mr. Sudhir Nehra, Addl.AG, Punjab.
K.C.PURI, J.
This is an appeal directed by accused-appellant-Surjit Singh
against the judgment dated 4.9.2001 passed by Shri Gurdev Singh, Special
Judge, Jalandhar, vide which accused Surjit Singh has been convicted under
Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988
(hereinafter mentioned as – the Act) and sentenced to undergo rigorous
imprisonment for a period of two years and to pay a fine of Rs.5000/- and
in default to further undergo rigorous imprisonment for a period of six
months.
The factual matrix gathered from the record is that on
4.11.1999 a fight has taken place between Arjan Singh on one side and
Amar Singh, complainant (PW-5) and his family members on the other side.
Criminal Appeal No.1046-SB of 2001 2
In that quarrel, both the parties received injuries resulting in registration of
FIR against the complainant (herein) and others only, which was being
investigated by the accused-appellant. On 11.11.1999, the accused came to
the house of the complainant. The complainant requested him to register a
cross-case against the other party but, the accused did not pay much heed to
his request. The accused told him that he would not arrest him, his wife
and his son and that they should get anticipatory bail from the court, but for
that he would have to pay Rs.5000/- as bribe, but ultimately the amount was
settled at Rs.3000/- and agreed not to arrest him and his wife. He extended
a false promise for giving that bribe to the accused, who told that he should
come with that amount on 13.11.1999 in the house of Manjit Singh (PW-
10), situated in Bhai Dit Singh Nagar, Jalandhar, who was his close friend.
The complainant approached Amrik Singh DSP (PW9) and disclosed all
these facts to him. His statement Ex.PE was recorded by the DSP. He
produced six currency notes of Rs.500/- each before the DSP, who smeared
the same with phenolphthalein powder and after entering the numbers
thereof in the memo Ex.PK, handed back those currency notes to him with
the direction that he should hand over the same to the accused only on
demand and should not shake hands with him. He was accompanied by
Sant Singh (PW6). Sant Singh was constituted as a shadow witness and
was directed to go to the house of Manjit Singh with the complainant and to
give signal to the DSP after acceptance of the currency notes by the
accused. Gurmail Singh, Assistant (PW7) was joined in the raiding party
as an independent official witness. The DSP made his endorsement Ex.PE/1
upon the statement of the complainant Ex.PE and sent the same to the Police
Criminal Appeal No.1046-SB of 2001 3
Station and on the basis thereof formal FIR Ex.P-E/2 was recorded against
the accused. Thereafter this raiding party started for the house of Manjit
Singh and stopped at some distance from that house. The complainant and
shadow witness were sent to that house whereas the other members of the
raiding party scattered there. Both those witnesses went inside the house of
Manjit Singh, who was present in the drawing room of the house. The
accused came there after sometime and demanded the bribe of Rs.3000/-
from Amar Singh complainant. The complainant handed over to the
accused said currency notes, which he put in the right side pocket of his
trousers, after counting the same. The shadow witness made an excuse and
came out and gave a signal to the DSP after coming out of the house. On
the receipt of the signal, the DSP reached the spot and disclosed his identity
to the accused. The accused was caught hold of by his arms by the members
of the raiding party. The fingers of both the hands of the accused were
washed in the solution of sodium carbonate and colour thereof turned pink
from white. That solution was put in a nip Ex.P8, which was sealed with
the seal of DSP and was taken into possession vide memo Ex.PM. On the
direction of the DSP, the search of the accused was taken by Gurmail
Singh, upon which six currency notes of Rs.500/- each were recovered from
the right side pocket of his trousers. When the numbers of those currency
notes were compared with the numbers as entered in the memo Ex.PK,
those tallied with each other. The currency notes Ex.P-1 to Ex.P-6 were
taken into possession vide memo Ex.PG. On further search of the accused
one purse containing Rs.130/-, identity card and a wrist watch were
recovered and the same were taken into possession vide memo Ex.PH. The
Criminal Appeal No.1046-SB of 2001 4
trousers of the accused were got/removed and pocket thereof was washed in
the solution of sodium carbonate, on which colour thereof turned white
from pink. That solution was put in a nip Ex.P9 which was sealed with the
seal of the DSP. The trousers of the accused Ex.P7 were also converted into
parcel and were sealed with the same seal. Both the sealed parcels were
taken into possession, vide memo Ex.PJ. The DSP prepared rough site plan
of the place of recovery Ex.PN with correct marginal notes. The police
diaries were taken into possession from the accused about which memo
Ex.PO was prepared. On coming back to the Police Station, the DSP
deposited the case property with seals intact and without tampering with the
contents thereof with Varinder Kumar Moharrir Constable (PW1). Out of
that case property the nip parcels Ex.P8 and Ex.P9 were sent to the Forensic
Science Laboratory, Punjab Chandigarh on 18.11.1999 through Sucha Singh
Constable (PW-2) and were delivered at that place with seals intact. After
analysis, it was reported by the Director of that Laboratory, vide his report
Ex.PO that the same contained mixture of sodium ion, carbonate ion and
phenolphthalein. After getting necessary sanction and completion of
investigation, challan was put in before the trial Court for trial.
On appearance of the accused/appellant in the Court, copies of
the documents were supplied to him under rules. Finding a prima facie
case, charge under Section 13(2) read with Section 7 of the Act was framed
against him, to which he pleaded not guilty and claimed trial.
Prosecution, in order to bring home guilt of the accused,
examined Constable Varinder Kumar (PW-1), Constable Sucha Singh (PW-
2), ASI Rajinder Singh (PW-3), SI Darshan Singh (PW-4), Amar Singh
Criminal Appeal No.1046-SB of 2001 5
Complainant (PW-5), Sant Singh (PW-6), Gurmail Singh (PW-7) an official
witness, MHC Nanak Singh (PW-8), DSP Amrik Singh (PW-9) Manjit
Singh (PW-10) and after tendering report of Forensic Science Laboratory
Ex.PQ, the evidence was closed by the Public Prosecutor.
The accused was examined under Section 313 Cr.P.C., all the
incriminating evidence was put to him. He denied the allegations and
pleaded innocence. He stated that a criminal case was registered in the
Police Station against the complainant, which was being investigated by
him. He was required to arrest the complainant in that case, but he had been
evading his arrest and had been sending messages that a counter case be
registered against the complainant, to which he did not agree. Then Manjit
Singh approached him with the request that he would call the complainant
to his house and that his arrest be effected from that place. Manjit Singh
also asked him to register a counter case against the complainant party, but
he refused to do so on the ground that no offence could be made out against
the complainant party. He never demanded nor accepted any illegal
gratification or the amount from the complainant in the house of Manjit
Singh, on the day of occurrence, he had gone to that house in order to
effect arrest of the complainant and when he reached inside the house of
Manjit Singh, the complainant tried to put some money in the pocket of his
trousers, to which he resisted and the currency notes fell on the sofa set
lying in that room. He was falsely involved in this case in connivance with
the complainant.
The accused was called upon to lead evidence and he examined
Head Constable Bakshish Lal (DW-1), ASI Jasbir Singh (DW-2) and ASI
Criminal Appeal No.1046-SB of 2001 6
Gopal Singh (DW-3), in his defence evidence.
The learned trial Court held the accused guilty under Section 13
(2) read with Section 7 of the Act and sentenced him as narrated above.
Feeling dis-satisfied with the above said judgment of
conviction, the convict/accused/appellant has preferred the instant appeal.
Learned counsel for the appellant has submitted that in this
case Amar Singh complainant and Sant Singh shadow witness are the star-
witnesses beside Manjit Singh, the owner of house where amount of bribe
has been allegedly paid to the appellant. It is submitted that these witnesses
have not supported the case of the prosecution at all. To convict the
accused, under Section 13(2) read with Section 7 of the Act, the
prosecution is required to prove the following ingredients :-
(1) the demand of illegal gratification by the accused/public
servant ;
(2) acceptance of illegal gratification by the accused/public
servant and
(3) recovery of the illegal gratification from the accused/
public servant.
It is submitted that to prove the ingredients mentioned at No.1
and 2 mentioned above only complainant, shadow witness or Manjit Singh
could depose but all these three witnesses have not supported the case of
prosecution regarding demand and acceptance of illegal gratification by the
appellant from the complainant.
It is further submitted that the mere recovery of tainted
currency notes is not sufficient to prove the guilt of the accused under
Criminal Appeal No.1046-SB of 2001 7
Section 13(2) read with Section 7 of the Act. To fortify this contention,
learned counsel for the appellant has relied upon Balwant Singh vs. State
of Punjab 1990(2) RCR 600. It is contended that hand wash and pocket
wash has been explained by the appellant in his statement under Section 313
Cr.P.C. The amount was forcibly put into the pocket of the accused. So,
the appellant cannot be convicted on the basis of mere alleged recovery of
tainted amount from the appellant.
It is further contended that the material witness Gurmail Singh
(PW-7) an official witness and DSP Amrik Singh (PW-9) are discrepant
regarding the recovery of the amount. Gurmail Singh PW7 has stated that
recovery was made from the purse of the appellant whereas DSP Amrik
Singh has stated that the recovery of the tainted amount has been effected
from the pocket of the accused. So, in these circumstances prayer has been
made for acceptance of the appeal and for acquittal of the accused.
Learned Additional Advocate General, Punjab Mr.Sudhir
Nehra has submitted that recovery of the tainted amount has been taken
place from the appellant. PW-7 Gurmail Singh and PW-9 Amrik Singh DSP
have fully supported the case of the prosecution regarding the recovery of
the tainted amount from the accused/appellant. The pocket wash and hand
wash turned pink. The said test is a definite test and there was no reason for
falsely implicating the police official in such a case even no reason has been
given by the accused for his alleged false implication so prayer has been
made for dismissal of appeal.
I have heard learned counsel for the parties and have gone
through the records of the case.
Criminal Appeal No.1046-SB of 2001 8
There are three basic ingredients to prove the offence under
Section 13(2) read with Section 7 of the Act i.e. demand, acceptance and
recovery of tainted notes from the possession of the accused. If all the
ingredients do not co-exist then it cannot be said that offence is made out
against the accused. In authority in case Mathura Dass Gupta Versus
State of Haryana 2006(1) R.C.R.(Criminal) 566, this Court has held that
in a bribery case, the prosecution evidence should be clear and specific
with regard to the important ingredients of offence i.e. demand, acceptance
and recovery of tainted notes. The material witnesses to prove the demand
and acceptance of the illegal gratification are the complainant Amar Singh,
Sant Singh shadow witness and Manjit Singh, owner of the house where
alleged recovery has been effected from the accused. All these three
witnesses have not supported the case of the prosecution and they were got
declared hostile. So far as complainant-Amar Singh is concerned, in the
cross-examination, he has supported the case to the extent that he went to
the office of Vigilance Department and handed over the six currency notes
of the denomination of 500/- each total Rs.3000/- to DSP Amrik Singh
(PW-9). He has also stated that his signatures were obtained on the papers
but, the same was not read over to him. Regarding material ingredients i.e.
demand and acceptance of illegal gratification, this witness has not
supported the case of the prosecution. Sant Singh shadow witness has
totally disowned the prosecution version, including in the cross-
examination. Manjit Singh PW has also not supported the prosecution case
regarding demand and acceptance.
Now, the question arises whether on the basis of recovery of
Criminal Appeal No.1046-SB of 2001 9
tainted amount from the accused, whether he can be convicted? The
answer to that question has been given by the Hon’ble Apex Court in
authority Union of India Thr. Inspector, CBI vs. Purnandu Biswas
reported in 2005(4) R.C.R.(Criminal) 517. In that case, the Hon’ble
Apex Court has held that mere recovery of currency notes from the accused
is not sufficient to prove the ingredients of offence under the Act. While
dealing with Section 20 of the Act, it has been laid down that first of all the
prosecution is required to prove the demand of illegal gratification and only
thereafter dependency upon the facts of each case presumption under
Section 20 of the Act, can be drawn. The trial Court, in this case, has
convicted the accused on the basis of testimony of official witnesses
Gurmail Singh (PW-7) and DSP Amrik Singh (PW-9), who have supported
the case of the prosecution regarding recovery of tainted currency notes
from the possession of the accused. Statements of these two witnesses also
contradicted each other. According to Gurmail Singh (PW-7) recovery of
tainted currency notes has been taken place from the purse of the accused
whereas according to DSP Amrik Singh (PW-9), the tainted currency notes
have been made from the pocket of the trousers of the accused. Gurmail
Singh (PW-7) has also given a different version inasmuch as he has stated
that Amar Singh and Sant Singh went to the house of Manjit Singh. At that
time accused was coming out of the house and he was caught hold by DSP.
In fact, he was caught by two members of raiding party by his arms. He was
again taken back inside the same house from where he had come out then
his hands were got washed. This version has not been stated by DSP Amrik
Singh (PW-9). This discrepancy was brought out in the notice of the trial
Criminal Appeal No.1046-SB of 2001 10
Court also but the trial Court has not given much importance to the said
fact. Regarding hand wash and pocket wash, the witnesses of the
prosecution have themselves explained. Complainant has stated that he
shocked hand with the accused and he tried to put the currency notes in his
pocket but currency notes fell on the sofa. Similar fact has been stated by
the shadow witness. So, the importance of hand wash and pocket wash
looses its importance, in view of the facts stated by the prosecution
witnesses. In authority in the case of Balwant Singh’s (supra) relied on by
learned counsel for the appellant also it has been laid down that where
complainant and the other witnesses have not supported the case regarding
demand of illegal gratification, in that case the accused is entitled to the
benefit of doubt.
So, in view of the above discussion, the judgment of the trial
Court does not sustain the test of legal scrutiny and consequently, the
appeal stands accepted and the accused stands acquitted by giving him
benefit of doubt.
The fine, if any, recovered from the accused be refunded to
him.
A copy of this judgment be sent to the trial Court for strict
compliance.
( K.C.PURI )
JUDGE
July 06, 2009
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