Punjab-Haryana High Court
Lila Ram vs State Of Haryana on 11 December, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
Crl. Appeal No. S-722-SB of 2005
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. S-722-SB of 2005
Date of decision: 11.12.2012
Lila Ram
....Appellant
Versus
State of Haryana
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to
see the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. APS Deol, Sr. Advocate, with
Mr. Vishal Rattan Lamba, Advocate, for the appellant.
Mr. Sidharth Sarup, DAG, Haryana.
*****
PARAMJEET SINGH, J.
Present appeal is directed against the judgment of conviction dated 2.4.2005 and the order of sentence dated 4.4.2005 passed by the Special Judge (I), Fatehabad, whereby the appellant was convicted and sentenced under Section 7 of the Prevention of Corruption Act (in short the Act) to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2000/-, and in default of payment of fine, to undergo further rigorous imprisonment for a period of four months, under Section 13(1)(d)(ii) to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.3000/-, and in default of payment of fine, to undergo further undergo rigorous imprisonment for a period of six Crl. Appeal No. S-722-SB of 2005 -2- months in a case arising out of FIR No.12 dated 18.6.2003 registered at Police Station SVB, Hisar under Sections 7/13/49/88 of the Act.
Brief facts of the case are that complainant Dalbir Singh presented a written complaint on 18.6.2003 before Inspector Jagdish Chander of the State Vigilance Bureau, Hisar, which was marked by the SP Vigilance to the Inspector. In the complaint it was averred that the complainant wanted a fard jamabandi for obtaining Kissan Credit Card but the appellant demanded Rs.1200/- for supplying copy of the jamabandi. When the complainant protested, the amount was reduced to Rs.1000/-. Thereafter, the complainant approached the Vigilance Department. The Inspector on receipt of the complaint, went to the office of the Deputy Commissioner, Fatehabad and got permission for raid. Ashok Malik, Tehsildar, was deputed by the Deputy Commissioner as Duty Magistrate. The raiding party reached village Khundan. The complainant approached the appellant-accused, who accepted the gratification amount of Rs.1000/- from the complainant. Thereafter on signal through shadow witness, the appellant was apprehended and bribe money was recovered. As a result of it ruqa was sent to police Station for registration of case; case property was deposited with the MHC, State Vigilance Bureau, Hisar and accused was put in police station Fatehabad. On completion of investigation, challan was presented. Copies of challan were supplied to the accused. Thereafter, charge was framed under Sections 7 and 13(1)(d)(ii) of the Act by learned Additional Sessions Judge-cum-Special Judge under the Act, Fatehabad, vide order dated 4.12.2003. The accused pleaded not guilty and claimed trial.
Crl. Appeal No. S-722-SB of 2005 -3- Therefore, to prove its case, the prosecution examined Ram Phal Reader as PW1, Inspector Sita Ram as PW2, MHC Narender Kumar as PW3, Inspector Rameshwar as PW4, Bhup Singh Clerk as PW5, Dalbir Singh complainant as PW6, Joginder Singh PW7, Ashok Malik Tehsildar as PW8, Girish Kumar Draftsman as PW9 and Inspector Jagdish Chander as PW10 and adduced certain documents in evidence.
Thereafter, statement of the accused-appellant was recorded under Section 313 Cr.P.C. He pleaded his innocence but did not lead any defence evidence.
The trial Court after conclusion of trial convicted and sentenced the appellant as aforesaid. Hence this appeal.
I have heard the learned counsel for the appellant and the State.
Learned counsel for the appellant vehemently argued that in this case both witnesses i.e. PW6 Dalbir Singh complainant and PW 7 Joginder Singh shadow witness did not support the prosecution version rather the complainant stated that he had approached the appellant about one year ago demanded fee of Rs.200/- for supplying the copy of jamabandi but as complainant sought time he was abused by accused and in retaliation he slapped the accused. For that reason, the complainant approached the police. He further stressed that the police got the signatures of the complainant on the blank papers and may have treated the case in different manner. PW7 Joginder Singh shadow witness also did not support the prosecution version. The story put forward by PW7 was that there was a dispute between the appellant and Dalbir Singh complainant. He also stated that their signatures were taken on blank Crl. Appeal No. S-722-SB of 2005 -4- papers. Thereafter the police has created a false case.
Learned counsel for the appellant submitted that the issue where the complainant and shadow witness turned hostile and did not support the prosecution case at all, is no longer res integra as the Hon'ble Supreme Court in Banarasi Dass v. State of Haryana, 2010(2) RCR (Crl.) 553, in identical circumstances, however, believing the recovery to be genuine, wherein the complainant and the shadow witness turned hostile, has held in para 16 and 17, as under:-
"16. In light of the statement of two hostile witnesses PW2 and PW4, the demand and the acceptance of illegal gratification alleged to have been received by the accused for favouring PW2 by recording the khasra girdawaris in the name of her mother cannot be said to have been proved by the prosecution in accordance with law. We make it clear that it is only for the two witnesses having turned hostile and they having denied their statement made under Section 161 of the Indian Penal Code despite confrontation, that the accused may be entitled to acquittal on technical ground. But, in no way we express the opinion that the statement witnesses including official witnesses PW10 and PW11 are not accepted by the Court. Similarly, we have no reason to disbelieve the recovery of Ex.P-1 to P-4 vide Ex.PD.
17. In the light of this, we are of the considered view that judgment of the High Court convicting the accused for the offences with which the accused was charged, cannot be sustained in law."
The above contentions have been vehemently opposed by the learned State counsel. It is contented by the learned State counsel that though the complainant and the shadow witness have not supported the prosecution case, but that would not affect the prosecution case in any Crl. Appeal No. S-722-SB of 2005 -5- manner. It is established from the record that these witnesses have been won over by the accused. Learned State counsel further contended that the prosecution examined two senior officers i.e. Tehsildar Ashok Malik PW8 and Inspector Jagdish Chander PW10. Both of them have fully supported the prosecution case in all material aspects. Their statements are cogent and convincing. Hence the conviction and sentence order should be maintained.
I have considered the rival contention of the parties and have perused the record.
In the light of judgment in the case of Banarsi Dass (supra) and the statements of two hostile witnesses i.e. complainant Dalbir Singh PW6 and Joginder Singh PW7 shadow witness, demand and acceptance of illegal gratification alleged to have been received by the appellant- accused, for favouring Dalbir Singh PW6 for giving copy of the fard jamabandi, cannot be said to have been proved by the prosecution accordance with law. Both the witnesses have turned hostile. They have even denied their statements despite confrontation.
As regards presumption under Section 20 of the Act, is concerned it would be appropriate to discuss how it applies under criminal law. In criminal law, there is a presumption of innocence in favour of the accused. The prosecution must establish beyond a reasonable doubt that accused had committed the offence for which he had been charged. As a general principle, the burden of proving actus reus and mens rea lies on the prosecution. Section 20 of the Act refers to the rebuttable presumption. Rebuttable presumption in criminal law is somewhat controversial, in that it does effectively reverse the Crl. Appeal No. S-722-SB of 2005 -6- presumption of innocence. The effect of rebuttable presumption is to put the legal burden of disproof on the accused. In rebuttable presumption also the primary facts must be proved by the prosecution, thereafter the specific presumption could be drawn from them. In the present case, since both, the complainant and the shadow witness, have turned hostile so the primary facts had not been proved with regard to demand and acceptance, so mere recovery of signed tainted notes cannot lead to raising of presumption under Section 20 of the Act.
In view of the ratio of law laid down in the aforesaid judgment of the Hon'ble Supreme Court, this Court is of the view that the prosecution has failed to establish the alleged guilt that accused appellant had demanded illegal gratification from PW6 and also received the same knowingly that it was received by him as illegal gratification. These two aspects are required to be proved beyond reasonable doubt by the prosecution for convicting the appellant which the prosecution has failed to prove in this case.
In the labyrinth of criminal justice system, the burden of proof lies heavily on the prosecution. The entire merit of a case depends on prosecution witnesses. Bentham says "witnesses are the eyes and ears of justice". The criminal case is built on the edifice of evidence, the evidence that is admissible in law. Since main witnesses in this case have not supported the prosecution case, prosecution had failed to build the edifice of evidence and resultantly failed to prove the guilt of the appellant beyond reasonable shadow of doubt.
In State of Kerala vs. C.P. Rao, 2011(3) R.C.R.(Crl.) 688, Hon'ble Supreme Court has held as under: -
Crl. Appeal No. S-722-SB of 2005 -7- "10. In C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, reported in 2009(3) SCC 779, this Court while dealing with the case under the Prevention of Corruption Act 1988, by referring to its previous decision in the case of Suraj Mal v. State (Delhi Admn.), reported in 1979(4) SCC 725 held that mere recovery of tainted money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the 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 knowing it to be bribe conviction cannot be sustained."
Since the complainant and the shadow witness have turned hostile with regard to alleged demand, recovery and acceptance, the benefit of doubt should be given to the accused-appellant. Therefore, without commenting on the recovery of tainted money and the veracity of the prosecution evidence, it is a fit case where the appellant deserves to be acquitted of the charge.
Accordingly, without further commenting upon the quality of prosecution evidence, the appeal is allowed. Impugned judgment of conviction dated 2.4.2005 and order of sentence dated 4.4.2005 are set aside and the appellant is acquitted of the charge framed strictly in consonance with the observations and authority of law laid down by the Apex Court in the case of Banarsi Dass (supra). Ordered accordingly.
Bail bonds stand discharged.
(Paramjeet Singh) Judge December 11, 2012 R.S.