Punjab-Haryana High Court
Sadhu Singh vs State Of Punjab on 1 August, 2011
Author: L.N. Mittal
Bench: L.N. Mittal
Criminal Appeal No. 402-SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 402-SB of 2003
Date of decision : August 01, 2011
Sadhu Singh
....Appellant
versus
State of Punjab
....Respondent
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Bipan Ghai, Senior Advocate with
Mr. Mandeep Kaushik, Advocate, for the appellant
Ms. Gagan Mohini, Assistant Advocate General, Punjab
L.N. Mittal, J. (Oral)
Accused Sadhu Singh who stands convicted and sentenced under section 13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) vide judgment and order dated 19.2.2003 passed by learned Special Judge, Ferozepur has filed the instant criminal appeal.
The accused was posted as Junior Engineer in Punjab State Electricity Board at Dharmkot. Complainant Gurnam Singh was granted electricity connection on 31.8.1998 with 4 kw load. However, the complainant's fittings were not complete and full load had not been Criminal Appeal No. 402-SB of 2003 -2- connected. The accused visited the complainant's house and told the complainant that his meter would be removed and then he would have to deposit fresh security for obtaining the meter of 2 kw if the fittings were not completed. The complainant kept on putting off the matter being season of wheat sowing. Ultimately on 23.4.1999 accused again visited the complainant's house and demanded Rs 2500/- as illegal gratification if the complainant wanted to retain the electric meter. Deal was struck at Rs 800/- to be paid at Dharmkot on 26.4.1999 in the office of the accused. On Saturday (24.4.1999) the complainant went to Dharmkot for some domestic work. Gur Singh met him there. On being disclosed about the demand of bribe, Gur Singh advised the complainant to approach Vigilance Bureau. Accordingly, on 24.6.1999, both of them went to Mehal Singh, DSP, Vigilance Bureau, Ferozepur. The complainant made statement Ex. P4 regarding the above facts. Thereupon this case was registered and investigated.
The complainant gave eight currency notes of 100 rupees denomination to the DSP who applied phenolphthalein powder to the same and gave back the same to the complainant by preparing memo in which numbers of the currency notes were also recorded. Gur Singh was made shadow witness. Demonstration depicting how the solution of sodium carbonate turned pink on coming into contact with phenolphthalein powder was also given to them.
In the raiding party, Basant Singh, Clerk from the office of Office Kanungo, Zira was also joined in addition to the complainant and the Criminal Appeal No. 402-SB of 2003 -3- shadow witness and the police officials. On reaching Dharmkot, the complainant and the shadow witness went inside the office of the accused whereas other members of the raiding party stayed behind. The accused demanded the bribe money. The complainant gave the tainted currency notes to the accused who put the same in some file lying on his table. The shadow witness came out and gave signal to the raiding party who then reached inside the office of the accused and apprehended him. Hand wash of the accused turned the sodium carbonate solution into pink. It was sealed in a nip and seized by the police. On search tainted currency notes were recovered from the personal file of the accused lying on his table. The numbers of currency notes tallied with numbers of currency notes entered in the memo. The currency notes were seized by the police. Necessary investigation was conducted at the spot. The accused was arrested. Sanction for prosecution of the accused was obtained. Service book of the accused was also seized during investigation. On completion of investigation, report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) was presented by the police for prosecution of the accused under sections 7 and 13(2) of the Act.
Charge under sections 7 and 13(2) of the Act was framed against the accused who pleaded not guilty and claimed trial.
In support of its case, the prosecution has examined nine witnesses.
Constable Hardev Singh PW1, Constable Resham Singh PW3 and MHC Sukhbir Singh PW7 being formal witnesses tendered their Criminal Appeal No. 402-SB of 2003 -4- affidavits in evidence.
Sadhu Ram PW2 proved sanction order for prosecution of the accused.
Gurnam Singh complainant PW4, Gur Singh shadow witness PW5, Basant Singh Clerk PW6 and DSP Mehal Singh (since retired) PW8 broadly stated according to the prosecution version.
Ashok Kumar PW9 proved service record of the accused who was promoted as Junior Engineer on 3.11.1978. Photo copies of entries of service book were produced.
The accused in his examination under section 313 Cr.P.C. while admitting his posting as Junior Engineer broadly denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that he was posted as Junior Engineer in Dharmkot since 1990. He once got raided the complainant for theft of electricity from his tubewell connection by the Flying Squad and penalty was imposed on the complainant for the same. Thereafter, the complainant tilted his electricity meter so as to record less consumption and the complainant was again got fined by the accused. On account of that grudge, the complainant along with his brother-in-law Gur Singh got the accused falsely implicated in this case in the presence of Joginder Singh A/JE and Diwan Singh, Sarpanch. The accused did not lead any evidence in his defence.
Learned Special Judge, Ferozepur vide judgment dated 19.2.2003 convicted the accused under section 13(2) of the Act and after Criminal Appeal No. 402-SB of 2003 -5- hearing the parties on quantum of sentence, vide order of even date, sentenced the accused to undergo rigorous imprisonment for two years and to pay fine of Rs 2000/- and in default thereof, to undergo further rigorous imprisonment for six months. 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 the complainant admitted that Gur Singh PW5 is brother of complainant's wife but Gur Singh even denied the factum of said relationship. It was contended that shadow witness was, thus, a close relative of the complainant. It was next submitted that recovery of tainted currency notes was effected from diary and not from the person of the accused. In this context it was canvassed that the tainted currency notes were put in the diary by the complainant and the shadow witness. It was also argued that penalty was imposed on the complainant twice at the instance of the accused for theft of electricity and on account of said grudge, the complainant got the accused falsely implicated in this case. It was also contended that DSP Mehal Singh did not inquire from officials of the Electricity Board if security was required to be redeposited for reduction of load. It was lastly submitted that Basant Singh PW6, although broadly supported the prosecution case, but stated that the money was lying in the diary which was picked up by the DSP who handed over the currency notes to this witness and before it, nothing was done by the DSP. However, on this aspect, the Criminal Appeal No. 402-SB of 2003 -6- witness was declared hostile and was cross-examined on behalf of the prosecution when the witness admitted that before giving tainted currency notes to this witness, the DSP had dipped the hands of this witness in sodium carbonate solution, colour whereof did not change and thereafter hands of the accused were washed in the said solution whereupon its colour changed from white to pink and the said solution was sealed in a nip and seized by the police. It was, thus, submitted that this witness partly turned hostile.
On the other hand, learned State counsel contended that Gurnam Singh complainant PW4 and Gur Singh shadow witness PW5 have fully supported the prosecution case and their statements prove demand and acceptance of the bribe money by the accused. It was also canvassed that Basant Singh PW6 and Mehal Singh DSP PW8 who were in the raiding party have also supported the prosecution case. Statements of these witnesses prove the recovery of the tainted currency notes from the accused. The said recovery proves the acceptance of the tainted currency notes by the accused as bribe. Recovery thereof from him is further proved by hand wash of the accused. It was also submitted that there is no reason why the accused would be falsely implicated. It was pointed out that Basant Singh PW6 and Mehal Singh DSP PW8 had no reason to implicate the accused in a false case or to depose falsely against him.
I have carefully considered the rival contentions. The prosecution evidence is reliable and sufficient to prove guilt of the accused beyond reasonable doubt. Gurnam Singh complainant and Gur Singh Criminal Appeal No. 402-SB of 2003 -7- shadow witness have fully supported the prosecution case. Their statements could not be impeached in their cross-examination. Their statements are corroborated by Basant Singh PW6 and Mehal Singh DSP PW8. Recovery of the tainted money from the diary of the accused and hand wash of the accused turning sodium carbonate solution into pink further strengthens the prosecution case. Statement of Gur Singh cannot be discarded merely because he is brother-in-law of the complainant.
As regards alleged grudge of the complainant against the accused, the contention of counsel for the appellant in this regard cannot be accepted because it was not even put to the complainant that penalty for the second time was imposed on him by or at the instance of the accused. Moreover, the accused has also not led any evidence in his defence to substantiate his said plea. Documentary evidence could be available in this regard, but the accused has not produced any such evidence. On the contrary, the complainant simply admitted that penalty was imposed on him for the second time. However, the accused did not dare to put it to the complainant in his cross-examination that the said penalty was imposed by or at the instance of the accused. As regards penalty imposed on the complainant on raid by Flying Squad, the same also cannot be attributed to the accused although the accused was also associated by the Flying Squad in the raid. Accused was associated being Junior Engineer of the area, but it cannot be said that the Flying Squad had raided the tubewell connection of the complainant at the instance of the accused. It may also be added that even if the complainant was having some grudge against the accused, there Criminal Appeal No. 402-SB of 2003 -8- is no reason why Basant Singh PW6 and Mehal Singh DSP PW8 would act at the instance of the complainant to implicate the accused in a false case. Basant Singh is completely independent witness being Clerk in the office of Office Kanungo. There is no reason to discard his testimony. There is also no reason to doubt or disbelieve the sworn statement of DSP who also had no motive to implicate the accused in a false case. It may be added that at the time of testimony, Mehal Singh DSP had retired from service and therefore, he would not have deposed falsely against the accused.
As regards contention of counsel for the appellant that tainted currency notes were put in the diary of the accused by the complainant and the shadow witness, the contention cannot be accepted because no such version was even put to the complainant in his cross-examination, although this version was put to the shadow witness in his cross-examination. Moreover, hand wash of the accused turning sodium carbonate solution into pink negatives this contention because if the complainant and the shadow witness had themselves put the tainted currency notes in the diary of the accused, then hand wash of the accused in sodium carbonate solution would not have turned its colour into pink. The fact that sodium carbonate solution turned pink on hand wash of the accused would depict that the accused had accepted the tainted currency notes from the complainant as illegal gratification. It may also be added that even the accused in his statement under section 313 Cr.P.C. did not allege that the tainted currency notes had been kept in his diary by the complainant and the shadow witness.
Criminal Appeal No. 402-SB of 2003 -9-
As regards requirement of redeposit of security, it was not even put to the complainant that there was no such requirement. Moreover, the requirement of redeposit of security was not for reduction of load. The prosecution version is that the accused threatened to remove the electric meter already installed at the house of the complainant and in that event, the complainant would have been required to deposit the security amount again for obtaining electricity connection for reduced load. The accused did not even plead that there was no such requirement. In any event, the problem for the complainant was that the accused threatened to remove his meter which would have caused great inconvenience to the complainant.
The contention that Basant Singh PW6 has not fully supported the prosecution case, also cannot be accepted. He has fully supported the prosecution case. Of course, he had to be cross-examined by the prosecution regarding hand wash of the accused which was done prior to handing over the tainted currency notes to this witness by the DSP. The witness was examined almost three and half years after the raid and therefore, if he did not correctly remember the sequence of proceedings conducted at the spot, his testimony cannot be discarded.
It is also worth noticing that the accused in his examination under section 313 Cr.P.C. stated about presence of Joginder Singh and Diwan Singh, Sarpanch at the spot at the time of occurrence. However, the accused did not examine any of them in support of his version nor examined any body else from his office who might have been present there at the time of raid. On the other hand, the prosecution has discharged its Criminal Appeal No. 402-SB of 2003 -10- burden by leading cogent evidence.
For the reasons aforesaid, I find that the prosecution evidence is credible and inspires confidence and is sufficient to bring home the charge against the accused beyond reasonable doubt. Accordingly, the impugned judgment of conviction is affirmed.
Learned counsel for the appellant prayed for reduction in sentence submitting that the occurrence took place more than 12 years ago and during this long period, the accused has faced the agony of trial including instant appeal. It was also submitted that consequent upon the conviction of the appellant, he has been dismissed from service.
Prayer for reduction in sentence has been opposed by learned State counsel.
I have carefully considered the matter. Menace of corruption has spread like cancer in the society and has to be curbed with strong hand. On the other hand, the appellant in this case has faced the agony of trial including this appeal for more than 12 years. He has also been dismissed from service. The amount of bribe was also not so high. Accordingly, balancing the equities and taking into consideration the mitigating and aggravating circumstances, I am of the considered opinion that ends of justice would be served if the sentence of imprisonment is reduced from two years to one year while maintaining the sentence of fine and the sentence of imprisonment in default thereof. It is ordered accordingly.
With reduction in sentence as aforesaid, the appeal stands disposed of accordingly. The appellant who is on bail shall surrender to his Criminal Appeal No. 402-SB of 2003 -11- bail bonds or shall be arrested so as to undergo the remaining period of sentence.
( L.N. Mittal )
August 01, 2011 Judge
'dalbir'