High Court Punjab-Haryana High Court

Surjit Singh vs The State Of Punjab & Others on 6 July, 2009

Punjab-Haryana High Court
Surjit Singh vs The State Of Punjab & Others on 6 July, 2009
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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