Punjab-Haryana High Court
Mangat Ram Passi vs State Of Haryana on 25 February, 2011
Author: Jora Singh
Bench: Jora Singh
Crl.Appeal No.1376-SB of 2004 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl.Appeal No.1376-SB of 2004
Date of decision: 25.2.2011
Mangat Ram Passi
... Appellant
versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr.Bipan Ghai, Sr.Advocate, with
Mr.Deepak Garg, Advocate, for the appellant.
Mr.Manish Deswal, DAG, Haryana.
...
JORA SINGH, J.
This is an appeal by Mangat Ram Passi to challenge the judgment of conviction dated 3.7.2004 and order of sentence dated 5.7.2004 rendered by Special Judge, Yamuna Nagar, in Sessions Case No. 40 of 1999, arising out of FIR No. 193 of 1997, under Section 7 read with Section 13 of the Prevention of Corruption Act, 1988 (for short, `the Act'), PS Chhachhrauli.
By the said judgment, he was convicted under Section 7 of the Act and sentenced to undergo RI for two years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for six months.
Prosecution story, in brief, is that on 22.6.1997, injuries were caused to Drupati and Geeta by Arvind and others. Injured were shifted to PHC, Khizrabad, but to medico legally examine the injured, Dr. Mangat Ram Passi, Incharge of PHC, Khizrabad, had demanded Rs.500/- as illegal gratification. Rs.150/- was paid to the doctor. Complainant Lachhman by making false promise came back from PHC, Khizrabad, because he was not Crl.Appeal No.1376-SB of 2004 2 willing to pay illegal gratification. Lachhman had gone to DSP (Vigilance) and entire Incident was brought to his notice. Statement of Lachhman (Ex.PH) was recorded and after making endorsement, the same was sent to the concerned police station, on the basis of which, formal FIR was recorded. In PP, Khizrabad, Randhir Singh, SI/SHO, PS Sadar, Jagadhari, and Raj Kumar Garg, City Magistrate, Yamuna Nagar, were also present. In their presence, complainant handed over two currency notes, each of the denomination of Rs.100/-, to Rajinder Singh, DSP. DSP had signed both the currency notes on one corner and were taken into police possession vide memo (Ex.PE). Numbers of currency notes were also noted. Marked currency notes were returned to the complainant with direction to hand over only those marked currency notes to the accused in case of demand. Constable Bhupinder Singh, who was Gunman of the DSP, was joined as shadow witness. Direction was given to the shadow witness to accompany the complainant and hear the conversation amongst the complainant and the accused regarding demand and acceptance of illegal gratification and to give agreed signal to the raiding party.
Raiding party was constituted and party had gone towards PHC, Khizrabad. Complainant and shadow witness were sent to the office of the accused. Remaining members of raiding party had stayed at some distance. On demand of illegal gratification, marked currency notes were handed over to the accused. Agreed signal was given to the raiding party by the shadow witness. Raiding party had apprehended the accused present in his office. On search of the accused, tainted currency notes were recovered from the front pocket of his shirt. Numbers of recovered notes were tallied with the numbers already noted in the memo. Recovered currency notes were taken Crl.Appeal No.1376-SB of 2004 3 into police possession vide separate memo attested by the witnesses. Shirt worn by the accused was also taken into police possession vide separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. After completion of investigation, challan was presented in the Court.
Accused was charged under Section 7 read with Section 13 of the Act, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW1 Constable Mulakh Raj stated that he had prepared scaled site plan (Ex.PA).
PW2 HC Prem Singh stated that on 22.6.1997 on receipt of ruqa, he had gone to PHC, Khizrabad. Application (Ex.PB) was moved requesting the doctor to opine as to whether injured were fit to make statements or not. Both the injured were declared fit to make statements. Then statements of injured were recorded. Photocopies of MLRs were collected.
PW3 Constable Randeep Singh had delivered special report to the Ilaqa Magistrate.
PW4 Constable Bhupinder Singh is the Shadow witness and stated that on 22.6.1997, he was the Gunman of DSP Rajinder Singh. On that day, he along with the DSP was present in PP, Khizrabad. Raj Kumar Garg, City Magistrate, Yamuna Nagar, was also present there. Lachhman came and produced two currency notes, each of the denomination of Rs.100/-, before the DSP. Currency notes were taken into police possession vide memo (Ex.PE) attested by him and other PWs. After initialing the Crl.Appeal No.1376-SB of 2004 4 currency notes by the DSP, same were handed over to the complainant with direction to hand over only those marked currency notes to the accused on demand. He was directed to give agreed signal to the raiding party after acceptance of illegal gratification by the accused. Raiding party had gone to PHC, Khizrabad. He along with complainant had gone to the office of the accused. Other officials had stayed at some distance. He was present in the verandah. Accused was present in his room. After receipt of illegal gratification by the accused, he had given agreed signal to the raiding party. Accused was apprehended and on search of the accused, marked currency notes were recovered, which were taken into police possession vide separate memo attested by him and other witnesses.
PW5 ASI Karan Singh stated that on receipt of ruqa, he had recorded formal FIR (Ex.PH/1).
PW6 Ram Phal Malik stated that sanction (Ex.PJ) to prosecute the accused was accorded by the then Financial Commissioner and Secretary to Government of Haryana, Health Department, Chandigarh.
PW7 SP Om Parkash Kadian stated that he had recorded statements of the witnesses. Challan was prepared on receipt of sanction from the Government.
PW8 SI Dharamvir stated that he had recorded the statement of Ram Phal, Assistant, Health Department.
PW9 Babu Ram, Section Officer, brought service book of the accused and stated that on 22.6.1997, accused was serving at PHC, Khizrabad.
PW10 Raj Kumar Garg stated that he was City Magistrate, Yamuna Nagar, on 22.6.1997. As per telephonic message, he was directed Crl.Appeal No.1376-SB of 2004 5 to contact SP, Yamuna Nagar. He had gone to the office of SP, Yamuna Nagar. DSP Rajinder Singh was also present in the office. He along with the DSP had gone to Khizrabad. On the way, he was told that Constable Bhupinder Singh was to act as a shadow witness. They had gone to PHC, Khizrabad, and had stopped at a distance of 1-1/2 kms from PHC, Khizrabad, where complainant Lachhman had met them. He had handed over two currency notes, each of the denomination of Rs.100/- to the DSP. DSP put his initials on both the currency notes and after that, same were handed over to the complainant with direction to hand over only those marked currency notes to the accused on demand. Shadow witness was directed to give agreed signal to the raiding party after acceptance of illegal gratification. He along with other officials had stayed at some distance from the office of the accused. On receipt of agreed signal, raid was conducted. Tainted currency notes were recovered from the front pocket of the shirt worn by the accused. Recovered currency notes were taken into police possession vide separate memo attested by the witnesses.
PW11 Rajinder Singh, the then DSP, is the Investigating Officer.
After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent.
Defence version of the accused was that on 22.6.1997, he was serving as Medical Officer, PHC, Khizrabad. Two patients, namely, Parvati and Geeta, were admitted in PHC, Khizrabad. Ruqa was sent to the police station at 3.55 PM. HC Prem Singh came to the hospital. Application (Ex.PB) was moved regarding the fitness of the injured. He gave opinion Crl.Appeal No.1376-SB of 2004 6 (Ex.PB/1) regarding fitness of the injured to make statements. When he was giving medical aid to the injured, then police came and he was directed to accompany them to PP, Khizrabad, where DSP was sitting. He told him that he (accused) was not cooperating with the police while giving opinion and preparing MLRs according to their wish. On his refusal to toe the line of the police, he was detained there. No raid was conducted. He did not demand illegal gratification from any one in order to prepare MLRs.
After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on the file.
Learned defence counsel for the appellant argued that on 22.6.1997, the appellant was serving as Medical Officer at PHC, Khizrabad. Two patients came to PHC, Khizrabad, and they were admitted. Ruqa was sent to the police station. HC Prem Singh came to PHC, Khizrabad. Injured were declared fit to make statements as per request (Ex.PB). Statements of the injured were recorded. Lachhman is the complainant but he failed to appear in Court. Complainant was to state that the appellant had demanded illegal gratification and on demand, illegal gratification was accepted by him. Constable Bhupinder Singh was joined as shadow witness but he was Gunman of the IO. According to the story, police party headed by DSP Rajinder Singh was present in PP, Khizrabad. SI/SHO Randhir Singh, PS, Sadar, Jagadhari, was also present in PP, Khizrabad. As per telephonic message, Raj Kumar Garg, City Magistrate, Yamuna Nagar, was summoned to PP, Khizrabad. In his presence, complainant had handed over two Crl.Appeal No.1376-SB of 2004 7 currency notes, each of the denomination of Rs.100/-, to the IO. Numbers of currency notes were noted. Currency notes were initialled by the IO. After that, marked currency notes were handed over to the complainant with direction to hand over only those marked currency notes to the appellant on demand. But Raj Kumar Garg, City Magistrate, while appearing as PW10, then stated that as per telephonic message from DC, Yamuna Nagar, he had gone to the office of SP, Yamuna Nagar. In the office of SP, DSP Rajinder Singh was present along with other police officials. Constable Bhupinder Singh was the Gunman of DSP Rajinder Singh. He was introduced to him as a shadow witness. After that, raiding party was going towards PHC, Khizrabad. On the way, Lachhman had met the raiding party and produced two currency notes, each of the denomination of Rs.100/-, before the IO, demonstration was not given as to how by applying phenolphthalein powder, colour of solution was to change. Constable Bhupinder Singh as PW4 stated that he did not hear conversation which took place between the complainant and the appellant. He was standing in the verandah, then gave signal to the raiding party. HC Prem Singh appeared as PW2 and stated that on receipt of ruqa, he had gone to PHC, Khizrabad. Application was moved requesting the doctor to opine as to whether injured were fit to make statements or not. After obtaining opinion from the doctor regarding the fitness of the injured, statements of the injured were recorded. Copies of MLRs were also collected. Injured were not produced in Court to state that when they were admitted in PHC, Khizrabad, then appellant was demanding illegal gratification to issue MLRs. Statements of injured were recorded by HC Prem Singh but same are not on the file. In case, appellant was demanding illegal gratification, then the injured were expected to state that Crl.Appeal No.1376-SB of 2004 8 the doctor was not issuing MLRs without illegal gratification. When copies of MLRs were already with HC Prem Singh, then there was no question of demanding illegal gratification. Before search of the appellant, IO or other officials did not offer their personal search to the appellant. There was no hand wash. According to the story, complainant met the IO while present in PP, Khizrabad. City Magistrate also came to PP, Khizrabad, and in his presence, complainant had produced two currency notes, each of the denomination of Rs.100/-, which were taken into police possession vide memo (Ex.PE). Marked currency notes were handed over to the complainant after noting their numbers. Ex.PE was signed by Raj Kumar Garg, City Magistrate, in PP, Khizrabad, but Raj Kumar Garg while appearing as PW10, then stated that he had gone to the office of SP, Yamuna Nagar. In the office of SP, Constable Bhupinder Singh was introduced, who was to act as shadow witness and while going towards the office of the appellant, then on the way, Lachhman had met the raiding party. Injured were medico legally examined by Dr. Bindal, but he was not produced to state that before medico legal examination of the injured, appellant was demanding illegal gratification to issue MLRs. Constable Bhupinder Singh joined as shadow witness was very much interested in the success of this case because he was the Gunman of the IO. Complainant was not produced in Court. So, mere recovery of tainted currency notes is not sufficient to convict the appellant when phenolphthalein powder was not applied to the currency notes and there was no hand wash. Without personal search, there was a possibility of planting marked currency notes. If the appellant was to demand illegal gratification, then there was no idea to send ruqa. In view of application (Ex.PB) regarding fitness of the Crl.Appeal No.1376-SB of 2004 9 injured, when statements of the injured were recorded by HC Prem Singh, then there was no idea to demand illegal gratification. In fact, appellant was not toeing the line of the police officials. Appellant was brought from PHC, Khizrabad, to PP, Khizrabad. All documents were prepared in the police post. There was a possibility of false implication.
Learned State counsel argued that before the present occurrence, complainant had no dispute with the appellant. There was no idea to name the appellant. There was recovery of marked currency notes from the person of the appellant. No explanation how marked currency notes were found in the pocket of shirt worn by the appellant. No reason to disbelieve the IO, City Magistrate and shadow witness. Complainant was from Nepal. Due to this reason, prosecution failed to produce him in Court.
According to the story, appellant demanded illegal gratification to issue MLRs, whereas defence version of the appellant was that there was no demand of illegal gratification. In fact, appellant was not obliging the police officials. Appellant was brought to the police post. While sitting in the police post, false case was planted. Now the question is whether prosecution story inspires confidence or defence version seems to be more probable.
Lachhman is the complainant. Parvati and Geeta related to the complainant were given injuries by Arvind and others. Both the injured were shifted to PHC, Khizrabad. After admisison, ruqa was sent at 3.30 PM by the appellant which was received by police at 3.55 PM. On receipt of ruqa, HC Prem Singh from the concerned police station had gone to PHC, Khizrabad. Application (Ex.PB) was moved requesting the doctor to opine as to whether injured were fit to make statements or not. Both the injured Crl.Appeal No.1376-SB of 2004 10 were declared fit to make statements as per endorsement (Ex.PB/1). Then statements of injured were recorded by HC Prem Singh. According to story, appellant was demanding Rs.500/- as illegal gratification to issue MLRs. Rs.150/- was paid to the appellant. Remaining payment was not with the complainant, then complainant came from PHC, Khizrabad, and reported the matter to the police.
Lachhman failed to appear as prosecution witness. He was to state that he along with his mother and sister had gone to PHC, Khizrabad; whether appellant was demanding illegal gratification to issue MLRs or not; whether after recording his statement by the IO, he along with shadow witness had gone to the office of the appellant and remaining payment was paid to him; whether agreed signal was given by the shadow witness to the raiding party and appellant was apprehended, and marked currency notes were recovered from the appellant.
Parvati and Geeta were the injured, who were to be medico legally examined by the appellant. They were not cited as prosecution witnesses what to talk of producing them as witnesses. Injured should be cited as prosecution witnesses and produced in Court to state that after admission in PHC, Khizrabad, appellant was demanding illegal gratification to issue MLRs.
HC Prem Singh on receipt of ruqa had gone to PHC, Khizrabad. Application (Ex.PB) was moved requesting the doctor to opine as to whether injured were fit to make statements or not. Both the injured were declared fit to make statements. Then statements of injured were recorded by HC Prem Singh. Copies of MLRs were also collected. In case, appellant was to demand illegal gratification, then there was no idea to admit them. Crl.Appeal No.1376-SB of 2004 11 After admission, there was no reason to send ruqa at 3.55 PM. After the arrival of HC Prem Singh, appellant had declared both the injured fit to make statements. Copies of MLRs were collected by HC Prem Singh. When the injured were admitted by the appellant and opinion regarding fitness of the injured was given by him, then after recording the statements of injured by HC Prem Singh, there was no idea to demand illegal gratification to issue MLRs, when HC Prem Singh had collected copies of MLRs.
According to the story, to issue MLRs, appellant had demanded Rs.500/- as illegal gratification. Rs.150/- was paid to the appellant. Remaining payment was not with the complainant, then complainant came back from PHC, Khizrabad, and had gone to PP, Khizrabad, where IO was present along with Randhir Singh, SI/SHO, PS Sadar, Jagadhari, and Raj Kumar Garg, City Magistrate, Yamuna Nagar. In PP, Khizrabad, statement of Lachhman (Ex.PH) was recorded. In the presence of SI/SHO, PS Sadar, Jagadhari, and City Magistrate, Yamuna Nagar, Lachhman had produced two currency notes, each of the denomination of Rs.100/-, before the IO. Numbers of currency notes were noted. Currency notes were initialled by the IO and after that same were returned to the complainant with direction to hand over only those marked currency notes to the appellant on demand. Constable Bhupinder Singh was joined as shadow witness. That means, in PP, Khizrabad, statement of Lachhman (Ex.PH) and memo(Ex.PE) were prepared. After recording statement (Ex.PH) of Lachhman, raiding party had gone towards the office of the appellant. Lachhman and Constable Bhupinder Singh were sent to the office of the appellant, whereas other members of the raiding party had stayed at some distance from PHC, Crl.Appeal No.1376-SB of 2004 12 Khizrabad. When agreed signal was received from the side of shadow witness, then raid was conducted. On search of the appellant, marked currency notes were recovered.
Constable Bhupinder Singh joined as shadow witness was the Gunman of the IO. He was very much interested in the success of this case. Constable Bhupinder Singh while appearing as PW4, then stated that he had stayed in the verandah. He had not heard the conversation amongst the appellant and the complainant regarding demand of illegal gratification. Police party had gone from PP, Khizrabad, at about 4.00 PM, along with City Magistrate. Currency notes were not got initialled from the City Magistrate.
Raj Kumar Garg, City Magistrate, while appearing as PW10, then stated that as per telephonic message from DC, Yamuna Nagar, he had gone to the office of SP, Yamuna Nagar, where SP told him that raid was to be conducted at PHC, Khizrabad. DSP Rajinder Singh was also present there. While going towards the office of the appellant, then on the way, information was given to him that Constable Bhupinder Singh was to act as a shadow witness. At a distance of about 1-1/2 kms from PHC, Khizrabad, raiding party had stayed, where Lachhman, complainant, had met the party. Complainant had handed over two currency notes to the IO. IO had initialled the currency notes and after that, currency notes were returned to the complainant. Message was received from DC, Yamuna Nagar, at about 3/ 4.00 PM. In his presence, IO had not recorded the statement of any witness in the office of the SP. From the office of SP, Lachhman had not accompanied the raiding party. He cannot tell whether one more doctor, i.e., Dr. Bindal was present in PHC, Khizrabad, or not. IO had not offered Crl.Appeal No.1376-SB of 2004 13 his personal search before the search of the appellant. No writing work was done at the spot. So, from the statement of Raj Kumar Garg, City Magistrate, very clear that statement of Lachhman was not recorded either in PP, Khizrabad, or in the office of SP, Yamuna Nagar. Complainant had met the party while going towards the office of the appellant. On the way, complainant had handed over two currency notes to the IO. No writing work was done at the spot in the presence of City Magistrate. Now the question is whether the raiding party had recorded the statement of the complainant in PP, Khizrabad, or in the office of SP, Yamuna Nagar; whether the complainant with the party had gone from PP, Khizrabad, or from the office of SP, Yamuna Nagar; whether memo (Ex.PF) was signed by the City Magistrate in PP, Khizrabad, or in the office of SP, Yamuna Nagar. If the statement of City Magistrate is correct one that complainant had met the party while going to the office of the appellant, then it means that story is not correct one because statement of complainant (Ex.PH) was recorded in PP, Khizrabad. Memo (Ex.PF) was also prepared in PP, Khizrabad, attested by the City Magistrate. Before the search of the appellant, IO had not offered his personal search to the appellant. Two currency notes were recovered from the appellant. Currency notes could easily be planted in the pocket of the appellant while searching the person of the appellant.
As discussed earlier, after recording the statements of the injured, HC Prem Singh had collected copies of MLRs, Injured were medico legally examined by Dr. Bindal. Statement of Dr. Bindal was not recorded that earlier appellant was demanding illegal gratification to issue MLRs. So, injured were produced before Dr. Bindal to medico legally Crl.Appeal No.1376-SB of 2004 14 examine them. Copies of MLRs are on the file. One of the injured was examined at 8.40 PM and second at 9.00 PM. That means, after 9.00 PM, HC Prem Singh had collected the copies of MLRs. Before collecting copies of MLRs, HC Prem Singh had recorded the statements of the injured. If the doctor was demanding illegal gratification to issue MLRs, then injured at the time of their statements were expected to state that appellant was demanding illegal gratification. No explanation why copies of statements of the injured were not produced on the file and why injured were not cited as prosecution witnesses.
Defence version of the appellant was that when he was giving first aid to the injured, then police came and he was brought to PP, Khizrabad. In PP, Khizrabad, DSP Rajinder Singh was present, where he (appellant) was told that he was not cooperating while giving opinion regarding fitness of the injured or preparing MLRs. Then on his refusal to toe the line of the police, he was detained there and false case was planted. There was no raid. Defence version seems to be probable. In case, there was a raid and appellant was demanding illegal gratification, then Dr. Bindal should have been cited as prosecution witness to state that when the appellant was not issuing MLRs without payment of illegal gratification, then he had medico legally examined the injured. Independent witness should have been joined as a shadow witness to accompany the complainant. Prosecution is not clear whether raiding party was constituted while present in PP, Khizrabad, after recording the statement of Lachhman or it was constituted while present in the office of SP, Yamuna Nagar. At about 3/ 4.00 PM, telephonic message was received from the office of DC, Yamuna Nagar, by Raj Kumar Garg, City Magistrate, Yamuna Nagar, to Crl.Appeal No.1376-SB of 2004 15 contact SP, Yamuna Nagar, in conection with a raid. That means, at about 3/ 4.00 PM, IO or DC had the information that appellant was demanding illegal gratification. After demand of illegal gratification by the appellant, then message was conveyed to City Magistrate to contact SP, Yamuna Nagar, in connection with raid, whereas statement of Lachhman was recorded at 6.00 PM. Before recording the statement of Lachhman at 6.00 PM, police party had no information that the appellant was demanding illegal gratification. After the complainant had contacted Vigilance Bureau, only then Vigilance Bureau was expected to request the Deputy Commissioner to depute City Magistrate to join raiding party. Before information from the complainant regarding demand of illegal gratification by the appellant, there was no idea to contact DC to depute any Magistrate to join the raiding party.
As discussed earlier, at about 6.00 PM, DSP Rajinder Singh came to know that appellant was demanding illegal gratification. Then question is how at about 3/ 4.00 PM, DC, Yamuna Nagar, directed City Magistrate, Yamuna Nagar, to contact SP, Yamuna Nagar, in connection with a raid. Raj Kumar Garg, City Magistrate, while appearing as PW10, then had not stated a word that he had gone to PP, Khizraad, where statement of Lachhman was recorded. Lachhman had handed over two currency notes to DSP Rajinder Singh and after noting their numbers in the memo, currency notes were returned to the complainant, then memo (Ex.PF) was prepared, which was attested by him in PP, Khizrabad. That means, all the documents were prepared while sitting in the police station. Signatures of City Magistrate were also obtained in routine and that is why, City Crl.Appeal No.1376-SB of 2004 16 Magistrate is not clear where the complainant had met the raiding party and from where, raiding party had left for PHC, Khizrabad.
Mere recovery of tainted money is not sufficient to convict the appellant. In 2010 (2) RCR (Crl.) 553, Banarsi Dass vs. State of Haryana, Corruption case- Tainted currency notes recovered from the pocket of accused- Complainant and shadow witness turned hostile- Complainant stated that he placed the currency notes on the table of accused and no demand was made- Shadow witness stated that he was not present when money was given to accused- Currency notes recovered from the pocket of accused- Held that demand and acceptance not established. Mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money.
In the present case also, complainant, his mother and sister failed to appear as prosecution witnesses. Shadow witness stated that he had not heard the conversation amongst the complainant and the appellant regarding demand and acceptance of illegal gratification. Statement of official witness, namely, Raj Kumar Garg, City Magistrate, is contrary to the story. So, possibility of false implication cannot be ruled out.
In view of all discussed above, I am of the opinion that evidence on the file was not rightly appreciated by the trial Court. Impugned judgment suffers from infirmity and illegality and the same is ordered to be set aside. Appellant is acquitted of the charge levelled against him.
Appeal is allowed.
25.2.2011 ( JORA SINGH ) pk JUDGE