Punjab-Haryana High Court
Dayanand vs State Of Haryana on 12 August, 2010
Author: Jora Singh
Bench: Jora Singh
CRA-S-193-SB of 2000 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-193-SB of 2000
Date of decision: 12.8.2010
Dayanand
........ Appellant
Versus
State of Haryana
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
Present: Mr. S.K. Garg Narwana, Advocate for the appellant.
Mr. Paramjit Batta, Additional Advocate General, Haryana.
JORA SINGH, J.
CRA-S-193-SB of 2000, was preferred by Daya Nand to challenge the judgment of conviction dated 2.2.2000 and order of sentence dated 4.2.2000, rendered by Special Judge, Gurgaon, arising out of FIR No. 175 dated 24.11.1993 registered under Sections 5/2/47 of the Prevention of Corruption Act, (hereinafter referred as 'the Act') at Police Station Ferozpur Jhirka, District Gurgaon and was sentenced to undergo Rigorous Imprisonment for six months and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo Rigorous Imprisonment for two months.
Prosecution story, in brief, is that on 24.11.1993, Mehar Singh, Deputy Superintendent of Police, Ferozpur Jhirka, alongwith other police officials was present in the office of Sub Divisional Officer (Civil), Ferozpur Jhirka and was discussing the law and order situation. In the meantime, Ram Avtar Singla, Ex-Sarpanch of village Nagina, came to the office of Sub Divisional Officer (Civil) alongwith Arjun Singh. CRA-S-193-SB of 2000 -2- SDO (Civil) and DSP received secret information to the effect that in the office of Tehsil Welfare Officer, Ferozpur Jhirka, Dayanand Solanki, is receiving illegal gratification i.e. Rs.300/- from each candidate to issue 'Un-cleanliness Avocation Certificate'. In the meantime, Prahlad Singh S/o Mohar Singh, Caste Harijan, R/o Village Umra, came to the office of SDO (Civil) and reported that Dayanand Solanki has demanded Rs.300/- to issue 'Un-cleanliness Avocation Certificate'. He has made an application to Tehsil Welfare Officer, Ferozpur Jhirka for issuance of the said certificate. Prahlad Singh produced three currency notes of the denomination of Rs.100/- each. The same were signed by the DSP and SDO (Civil) and were handed over to Prahlad Singh after noting their numbers vide a memo. At about 3.15 p.m. Prahlad Singh was sent to the office of Tehsil Welfare Officer to hand over the signed currency notes to the Tehsil Welfare Officer with a direction to come out of the office after handing over the currency notes to Dayanand Solanki and to inform the DSP and SDO (Civil). Raiding party had gone to the office of Tehsil Welfare Officer. Prahlad Singh after coming out of the office of Tehsil Welfare Officer reported that Tehsil Welfare Officer has received the amount of Rs.300/- with a request to come to the office on the next day for collecting the certificate. When raid was conducted then Dayanand Solanki was found present in his office. DSP Mehar Singh and SDO (Civil) disclosed their identity to Dayanand Solanki who stood up from his seat and shook hand with the SDO (Civil) and DSP Mehar Singh. Purpose of their visit was disclosed to Dayanand. On personal search of Dayanand Solanki, three currency notes of the denomination of Rs.100/- each signed by the DSP and SDO (Civil) were recovered from the pocket of Jacket worn by Dayanand. Currency notes and the Jacket were made into sealed parcels, sealed with seal bearing impression 'MSP'. The sealed parcels were taken into possession vide CRA-S-193-SB of 2000 -3- recovery memo attested by the witnesses. Seal after its use was handed over to Ram Avtar Singla. Ruqa was sent to the police station on the basis of which formal FIR was recorded. File of Prahlad Singh was also recovered from the office of Dayanand Solanki and was taken into police possession vide separate memo attested by the witnesses. Statements of the witnesses were recorded. Rough site plan was also prepared. Accused was arrested and on return to the police station, the case property was deposited with the incharge of the Malkahana/MHC Police Station Ferozpur Jhirka. After receipt of sanction to prosecute Dayanand, challan was presented in the Court.
Accused was charge-sheeted under Section 7 of the Act to which he pleaded not guilty and claimed trial.
Prosecution examined PW-1 HC Ranbir Singh who had tendered his affidavit Ex. PA.
PW-2 Constable Ajai Kumar had prepared the scaled site plan of the place of occurrence.
PW-3 Smt. Kamla Chaudhary, Director, Welfare Scheduled Castes and Backward Classes, stated that sanction to prosecute Dayanand was accorded by her. Sanction order Ex. PC bears her signatures.
PW-4 Sandeep Garg was serving as SDO (Civil) at the relevant time and stated that Mehar Singh, DSP, was present in his office and they were discussing the law and order situation. At about 1.30 p.m. Ram Avtar Singla, reported that Dayanand Solanki, Tehsil Welfare Officer is in the habit of demanding illegal gratification to issue 'Un-cleanliness Avocation Certificate. Prahlad Singh is one of the sufferers. Prahlad Singh came and reported that he has also applied for the certificate but the accused was demanding illegal gratification of Rs.300/- to issue such certificate. Three currency notes of the CRA-S-193-SB of 2000 -4- denomination of Rs.100/- each were produced before them by Prahlad Singh. He had signed the currency notes. Numbers of the currency notes were noted in the memo. DSP Mehar Singh, had also signed the currency notes. Currency notes were handed over to Prahlad Singh, with a direction to approach Dayanand and on demand, to hand over the same to Dayanand. Arjun Singh, was sent with Prahlad Singh as a shadow witness. Shadow witness was directed to note the participation of the complainant. Prahald Singh was directed to hand over the signed currency notes to the accused on demand and after the same were handed over to Dayanand Solanki, then to signal the raiding party. Prahlad Singh and Arjun Singh were sent to the office of accused. He alongwith DSP Mehar Singh and Ram Avtar Singla with other police officials had followed the complainant. They had stayed at some distance from the office of the accused. After 10/15 minutes on receipt of signal from the shadow witness they had gone to the office of the accused. Accused was found present in his office. Purpose of their visit to the office of accused was disclosed to him. DSP had searched the accused and on search 3 signed currency notes of the denomination of Rs.100/- each were recovered from the pocket of the Jacket worn by the accused. Numbers of the recovered currency notes were tallied with the numbers noted in the memo. Then three currency notes and the jacket were taken into possession vide different memos. After the same were made into different sealed parcels. Recovery memo Ex. PF was signed by him. File of the complainant was also taken into police possession from the office of the accused vide separate memo attested by the witnesses.
PW-5 Prahlad Singh, is the complainant but he did not support the prosecution story. He was declared hostile. PW-6 Ram Avtar Ex-Sarpanch of village Nagina and PW-4 Arjun Singh also failed CRA-S-193-SB of 2000 -5- to support the prosecution story and were declared hostile. PW-8 Mehar Singh, DSP, was the Investigating Officer.
After close of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded wherein the appellant denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused was that complainant came to his office one or two days earlier and demanded 'Un-cleanliness Avocation Certificate'. File was incomplete. No proof of income in the shape of certificate from SDM and affidavit regarding occupation were in the file. He refused to issue the certificate without completing the formalities. He came to know that Prahlad Singh was not doing any uncleanliness work, in fact he was a tailor master by profession. There was some altercation and they exchanged hot words. In order to implicate him, without his knowledge currency notes were kept in his pocket of the jacket worn by him. He did not demand any illegal gratification nor he had accepted illegal gratification from the complainant. In defence DW-1 Kishan Dev, appeared and stated that as per summoned record Ex. D1 to D3 are the copies of the welfare schemes issued by the Director, Welfare Schedule Caste from time to time. Ex. D4 is the copy of the booklet issued by the Directorate.
After hearing learned Public Prosecutor for the State, learned defence counsel and after going through the evidence on record, the appellant was convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and have carefully gone through the evidence available on the file.
Learned defence counsel for the appellant argued that according to the notification Ex. D-1, Prahlad Singh was not eligible for the issuance of 'Un-cleanliness Avocation Certificate'. File of the CRA-S-193-SB of 2000 -6- complainant was incomplete. There was no certificate of income issued by the office of SDM and affidavit regarding occupation was also not there. When the file was incomplete and the complainant was not eligible to get certificate then no question of demand of illegal gratification. Complainant appeared as PW-5 and failed to support the prosecution story. Prahlad Singh stated that he is a tailor master. He had kept the signed currency notes in the jacket of the accused. Accused had refused to accept the currency notes. Arjun Singh did not accompany him. Accused did not demand bribe. Arjun Singh, PW-7 was the shadow witness but Arjun Singh while appearing in the Court did not support the prosecution story. PW-6 Ram Avtar Singla, is one of the recovery witnesses. But Ram Avtar Singla, was also declared hostile and failed to support the prosecution story. Statement of SDO (Civil) is contrary to the statement of DSP Mehar Singh. Firstly there was no demand by the appellant. Evidence regarding payment and acceptance of illegal gratification is not on the file. Currency notes were recovered from the appellant but there was no demand of illegal gratification. There are major discrepancies in the statement of PWs. Learned counsel for the appellant argued that when there was no demand of illegal gratification and no payment or acceptance then with the recovery of signed currency notes, appellant is not be convicted and sentenced.
Learned State counsel argued that complainant had applied for the issuance of certificate. File of the complainant was with the appellant and at the time of raid was recovered. When the appellant was not clearing the file and was demanding illegal gratification then currency notes were handed over to the SDO (Civil) and DSP Mehar Singh. The same were signed by both the officers and those currency notes signed by them were recovered from the appellant. No CRA-S-193-SB of 2000 -7- explanation by the appellant as to how the signed currency notes signed by the SDO (Civil) and DSP Mehar Singh were recovered from his jacket. Evidence on the file was rightly scrutinized by the trial Court.
On 24.11.1993, appellant Dayanand Solanki, was serving as Tehsil Welfare Officer, Ferozpur Jhirka District Gurgaon. As per notification copy of which is Ex. D-1, Tehsil Welfare Officer was to issue certificate.
According to the prosecution story, Prahlad Singh PW-5, had applied for the issuance of the certificate. File was with the appellant but to clear the file and issue the certificate, appellant demanded Rs.300/- as illegal gratification. Complainant had produced three currency notes of the denomination of Rs.100/- each before the SDO (Civil) and DSP Mehar Singh. Both the officers have signed the currency notes with a direction to the complainant to hand over the same to the accused on his demand. Arjun Singh was joined as shadow witness with a direction to accompany the complainant and give agreed signal to the raiding party after the signed currency notes on demand are accepted by the appellant whereas the defence version of the appellant was that file of the complainant was not complete. There was no income certificate issued by the SDM or affidavit regarding occupation. Appellant had refused to issue the certificate without completing the formalities. Complainant was a Tailor-master by profession and was not eligible for the issuance of certificate. Complainant had some altercation with the appellant and there was exchange of some hot words between them. To implicate the appellant, signed currency notes were kept in the pocket of the appellant. Now the question is whether there was demand of illegal gratification and as per demand, illegal gratification was paid to the appellant and the same was accepted. Lastly, that tainted currency notes were recovered from the CRA-S-193-SB of 2000 -8- appellant.
Evidence on the file shows that Ram Avtar Singla and Arjun Singh had gone to the office of SDO (Civil) and reported that appellant is collecting Rs.300/- from each candidate to issue 'Un-cleanliness Avocation Certificate'. Prahlad Singh was also present in the office of the SDO (Civil). Prahlad Singh had produced three currency notes of the denomination of Rs.100/- each. The same were signed by the SDO (Civil) and DSP Mehar Singh and were handed over to Prahlad Singh to hand over those currency notes to the appellant. Prahlad Singh as PW-5 stated that he had gone to the office of the appellant, when file was thrown by the appellant then thought that he demanded Rs.300/- for signing. Then he had gone to the office of SDM. Ram Avtar Singla and Arjun Singh were also present in the office of SDO (Civil). Three currency notes of the denomination of Rs.100/- each were handed over to him. Those currency notes were signed by the SDO (Civil) and Mehar Singh, DSP and the same were kept in the jacket of the appellant. The appellant had refused to accept the currency notes. Arjun Singh was not with him when he had gone to the office of the accused. Accused had not demanded bribe. When accused was not doing his work then he felt that accused was expecting illegal gratification. He had given signal to the DSP and SDM who came to the office of the accused. No statement was given to the police. In cross- examination stated that accused had thrown his file then he thought that accused might be expecting some money but accused had not demanded any money from him. One thing is clear from the statement of Prahlad Singh that accused did not demand illegal gratification. File of the complainant was with the accused. When the accused was not clearing the file then complainant suspected that accused was demanding something.
CRA-S-193-SB of 2000 -9-
Arjun Singh was joined as shadow witness but Arjun Singh while appearing as PW-7 stated that accused as well as the complainant are not known to him. He knows nothing about the case in hand. Arjun Singh and Prahlad Singh were declared hostile. Arjun Singh admitted his signatures on Ex. PD, Ex. PE, Ex. PF and Ex. PG but gave the explanation that his signatures were obtained by the police on blank papers.
Ram Avtar Singla, was joined as independent witness and in chief stated that on 24.11.1993, he had gone to the office of SDO (Civil), Ferozpur Jhirka in connection with preparation of certificate and after getting prepared the certificate, he came back from the office. Prahlad Singh and Arjun Singh did not visit the office of SDM, Ferozpur Jhirka. He was also declared hostile and in cross-examination by the learned Public Prosecutor for the State stated that Rs.300/- was not handed over by the complainant to the accused. Ram Avtar Singla admitted his signatures on the memo Ex. PD, but stated that while leaving the office of the SDO (Civil), his signatures were obtained by the police on various documents. So from the statements of Prahlad Singh, Arjun Singh and Ram Avtar Singla, very much clear that there was no demand of illegal gratification. Secondly, on demand of illegal gratification no payment by the complainant to the appellant. Evidence on the file shows that signed currency notes were thrusted into the jacket of the appellant.
In JT 2000 (4) SC 521 (Smt. Meena W/o Balwant Hemke Vs. The State of Maharashtra) illegal gratification was demanded. Trap was laid. Currency note of Rs.20/- applied phenolphthelein powder. Complainant alongwith other shadow witness had gone to the office of the accused and after handing over the marked currency notes gave signal to the raiding party. Lady constable was joined as shadow CRA-S-193-SB of 2000 -10- witness. Hands of the accused dipped in solution of sodium carbonate which turned purple. Currency note however, recovered from above a pad lying on the table. Currency note and pad also sprinkled with sodium carbonate and colour turned purple. Defence version of the accused was that the complainant tried to thrust the currency note in her hand due to which it fell on pad lying on the table. One of the recovery witnesses turned hostile. Lady Constable not examined. Person who scribed the complaint also not examined. Second prosecution witness withheld and appeared as DW who gave a different version. Held that on the basis of material available on record accused cannot be stated to have accepted the bribe. Conviction was set aside because the prosecution has to prove the charge beyond reasonable doubt and the accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.
In JT 2002 (4) SC 348 (Subash Parbat Sonvane Vs. State of Gujarat)" held that for convicting a person under Section 13(1) (d) there must be evidence on record that accused obtained for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest. In the absence of demand and acceptance accused cannot be held guilty under Section 13 (1) (d) of the Corruption Act.
In 2009 (2) RCR (Criminal) 372 (Shiv Narain Sharma Vs. State of Haryana) one of the accused was working as Food Inspector and the second was clerk. As per prosecution story they demanded bribe to release the wheat to the complainant. Matter reported to police. CRA-S-193-SB of 2000 -11- Raid was conducted. Tainted currency notes were recovered from the accused by DSP and Magistrate as a result of trap but no evidence with regard to illegal gratification. Conviction of accused was set aside. With the recovery of tainted notes from the accused as a result of trap, accused cannot be convicted under the Corruption Act.
In the present case, complainant Prahlad Singh, was to state as to whether accused demanded illegal gratification and if demanded, illegal gratification was paid to the appellant and the payment was accepted. Shadow witness was joined to hear the conversation between the accused and the appellant regarding demand of payment and acceptance of illegal gratification but Arjun Singh joined as shadow witness did not support the prosecution story. Ram Avtar Singla, second recovery witness was also declared hostile. So the statements of complainant, shadow witness and one of the recovery witnesses shows that story is not genuine one. Sandeep Garg, PW-4 stated that on 24.11.1993, Ram Avtar Singla and Arjun Singh came to his office and reported that Tehsil Welfare Officer, Feorzpur Jhirka, was demanding illegal gratification to issue 'Un-cleanliness Avocation Certificate'. Prahlad Singh also reported that the accused was demanding illegal gratification. Three currency notes of the denomination of Rs.100/- each were handed over to him. These currency notes were signed by him and the DSP Mehar Singh and were handed over to Prahlad Singh with a direction to pay only those signed notes in case of demand of illegal gratification by the appellant. Arjun Singh was sent as a shadow witness but he has not stated a word that phenolphthelein powder was applied to the currency notes and demonstration was given to the complainant, shadow witness and the recovery witness as to how the colour of the currency notes was to change. After recovery there was no hand wash. Solution was not CRA-S-193-SB of 2000 -12- prepared by adding sodium carbonate. Recovered currency notes were not dipped into the solution of sodium carbonate. Simply, story is that when complainant reported that accused was demanding illegal gratification, then the currency notes were signed by the SDO (Civil) and DSP Mehar Singh. After that those very currency notes were returned to the complainant. Later on signed currency notes were recovered from the appellant. Complainant admitted that appellant was searched by the DSP. Currency notes were recovered from the left pocket of the jacket worn by the accused. Further stated that Arjun Singh was joined as shadow witness. Arjun Singh as well as Prahlad Singh had signalled the raiding party to reach the office of the accused.
Lastly, admitted that Ram Avtar Singla used to visit his office in connection with the grievances of the public. Now as per SDO (Civil) currency notes produced by the complainant were signed and those very currency notes were lateron recovered from the appellant. Recovery was by the DSP whereas DSP as PW-8 stated that the currency notes were handed over to Prahlad Singh after signing. Prahlad Singh was directed to hand over the currency notes to the appellant and after coming out from the office tell them about the same. Mehar Singh, DSP, has not stated a word that Arjun Singh was joined as shadow witness and directed to hear conversation amongst the appellant and the complainant and to give the agreed signal to the raiding party after receipt of gratification by the appellant. In cross- examination admitted that file of Prahlad Singh was lying before the appellant. Same was taken into police possession. SDO (Civil) had conducted the personal search of the appellant. But according to SDO (Civil) appellant was searched by the DSP. Suggestion was given to the DSP that accused told the raiding party that he did not demand illegal gratification, infact the currency notes were thrusted into his pocket CRA-S-193-SB of 2000 -13- without his knowledge. Second suggestion to the DSP was that file of Prahlad Singh was incomplete. From the statements of SDO (Civil) and DSP, signed currency notes were recovered from the appellant. Witnesses are discrepant as to whether the recovery was by the DSP or SDO (Civil) but signed currency notes were recovered from the appellant. But the question was whether the appellant had demanded illegal gratification and if there was a demand of illegal gratification then whether the payment was by the complainant and tainted money was accepted. Suggestion to the DSP shows that file of the complainant was incomplete. Signed currency notes were thrusted into the pocket of jacket worn by the appellant. So with the recovery of signed currency notes from the pocket of the appellant, appellant is not to be convicted by saying that there was a demand of illegal gratification to issue the certificate and as per demand illegal gratification was paid to the appellant and the payment was accepted. When first two ingredients are missing i.e. demand and acceptance of illegal gratification then I am of the opinion the evidence on file was not rightly scrutinized. Complainant was serving as tailor-master and was not eligible to get certificate as per circular Ex.D-1. Incomplete file of the complainant was with the appellant but as per suggestion to the DSP, the appellant was not agreeing to clear the file when the file was incomplete for want of income certificate from the SDM and affidavit qua occupation. When file of the complainant was not complete and the appellant had insisted to produce income certificate issued by the SDM and affidavit regarding occupation, then complainant suspected that appellant is demanding something as illegal gratification. In case complainant had paid illegal gratification and payment was accepted by the appellant then question is whether appellant was in a position to issue certificate. When the file was not complete and as per circular Ex.D-1 complainant was not CRA-S-193-SB of 2000 -14- eligible to get the certificate then possibility of false implication cannot be ruled out. Evidence on the file is not clear as to whether Sandeep Garg, SDO (Civil) or Mehar Singh, DSP was the Investigating Officer.
In view of the above discussion, I am of the opinion that prosecution has failed to prove the case against the appellant. Conviction of the appellant recorded by the trial Court cannot be sustained and the same is accordingly set aside. Appellant is acquitted of the charges levelled against him.
Appeal is accordingly accepted.
August 12, 2010 ( JORA SINGH ) rishu JUDGE