Punjab-Haryana High Court
Bikramjit Singh vs State Of Punjab on 18 December, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
Crl. Appeal No.1991-SB of 2008
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.1991-SB of 2008
Date of decision: 18.12.2012
Bikramjit Singh
....Appellant
Versus
State of Punjab
....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. D.S. Pheruman, Advocate, for the appellant.
Mr. Gurinderjit Singh, DAG, Punjab.
*****
PARAMJEET SINGH, J.
The challenge in the present appeal is to the judgment of conviction and the order of sentence dated 27.9.2008 passed by Special Judge, Gurdaspur, whereby the appellant was convicted and sentenced under Section 7 of the Prevention of Corruption Act (in short 'the Act') to undergo RI for a period of one year and to pay a fine of Rs.1000/-, and in default of payment of fine, to undergo further rigorous imprisonment for a period of one month, in a case arising out of FIR No.12 dated 14.2.2004 registered under Sections 7/13(2) of the Act at Police Station Vigilance Bureau, Amritsar. However, he was acquitted of the charge under Section 13 of the Act.
Crl. Appeal No.1991-SB of 2008 -2- Brief facts of the present case are that complainant Gian Singh resident of village Balagan, an agriculturist, suffered statement before the DSP Bakhshish Singh that they were seven brothers and were residing together in one house. The landed property was in the name of his four brothers, namely, Dasonda Singh, Roop Singh, Gurmukh Singh and Balbir Singh alias Balkar Singh whereas there was no landed property in the name of complainant and his two brothers, namely, Sukhchain Singh and Gurnam Singh but they all were joint in cultivation. The complainant wanted to take some loan to meet the domestic necessities from Land Mortgage Bank, Gurdaspur, for which jamabandi of the landed property was required. On 13.2.2004, during noon time, complainant along with Balbir Singh son of Bahadur Singh went to the office of Patwari at village Hardo Chhani for jamabandi of their joint land to the extent of two killas. The Patwari (appellant herein) demanded Rs.1000/- as illegal gratification from the complainant but on request by the complainant, the deal was struck at Rs.500/-. The complainant was asked by the appellant to come on 14.2.2004 at his residence in Improvement Trust Colony, Gurdaspur, with bribe money of Rs.500/- to get the copy of jamabandi. Thereafter the complainant produced before the DSP a sum of Rs.500/- consisting of five currency notes of Rs.100/- denomination and the numbers of the currency notes were noted in the proceedings as well as in the memo Ex.PC. After applying phenolphthalein powder the currency notes were handed over to the complainant with due instructions. Balbir Singh was appointed as shadow witness and raiding party was prepared. Then the raiding party went towards the house of the accused-appellant and the vigilance party Crl. Appeal No.1991-SB of 2008 -3- scattered there. The complainant and the shadow witness were sent to the house of the accused and after some time Balbir Singh gave the signal to the raiding party and raid was conducted in the house of the accused. DSP gave his identification to the accused. Accused threw away the tainted money. The hands of the accused were washed in the solution of sodium carbonate, the colour of which changed into pink. The numbers of the tainted money were tallied with the numbers already mentioned in the memo, which were found to be same and the notes were taken into possession vide memo Ex.PF. Some revenue record was also recovered. The accused-appellant also produced one jamabandi of the year 1997-98 khewat No.92 and khatoni No.188, copy of which was to be supplied to the complainant. One Jeewan Table Diary having entries regarding issuance of copies of jamabandi to the people upto 13.2.2004 was also taken into possession vide memo Ex.PH. Search of the house of the accused was conducted and from the almirah lying in the house, cash of Rs.5000/-, one pass book of Central Bank, Gurdaspur, having account No.56260, four tolas jewelry of gold were found, which were returned to the wife of the accused. No other objectionable article or document was found. On completion of necessary investigation, challan was presented in the Court.
To prove its case, the prosecution examined Gian Singh complainant as PW1, Balbir Singh shadow witness as PW2, Dalbir Singh official witness as PW3, MHC Jabarjit Singh as PW4, Constable Piare Lal as PW5, DSP Bakhshish Singh Investigating Officer as PW6, Malook Singh as PW7, Rakesh Kumar Bill Clerk as PW8. After tendering into evidence sanction order Ex.PZ, evidence was closed. Crl. Appeal No.1991-SB of 2008 -4- Statement of the accused was recorded under Section 313 Cr.P.C.. The accused denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed innocence and stated that he has been falsely implicated in this case.
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 parties and perused the record.
Learned counsel for the appellant vehemently argued that the demand and acceptance of the illegal gratification is not proved. Gian Singh complainant PW1 and Balbir Singh shadow witness PW2, who are the star witnesses of the prosecution have not supported the prosecution story. They have not stated that the accused-appellant had ever demanded illegal gratification or that they have ever paid any money to the accused as illegal gratification. The accused had been falsely implicated. Learned counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Banarasi Dass v. State of Haryana, 2010(2) RCR (Crl.) 553 to contend that when the complainant and the prosecution witnesses have turned hostile and did not support the prosecution case, then the question of demand and acceptance of bribe cannot be accepted and as such presumption cannot be raised under Section 20 of the Act.
The above contention has been vehemently opposed by the learned State counsel by contending that on 14.2.2004, the accused was posted as Halqa Patwari of village Hardochanni. He demanded a sum of Rs.500/- as illegal gratification from the complainant Gian Singh for Crl. Appeal No.1991-SB of 2008 -5- issuing him copy of the jamabandi. The accused was apprehended at the spot by the Vigilance Department and recovery of illegal gratification was effected from him.
I have considered the rival contentions of the learned counsel for the parties and 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 Gian Singh PW1 and Balbir Singh PW2 shadow witness, demand and acceptance of illegal gratification alleged to have been received by the appellant- accused, for favouring Gian Singh PW1 for giving copy of jamabandi, cannot be said to have been proved by the prosecution in accordance with law. Both the witnesses have turned hostile. They have even denied their statements despite confrontation.
The Hon'ble Supreme Court in the case of Banarsi Dass (supra) has held in para 16 & 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 of 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.
Crl. Appeal No.1991-SB of 2008 -6-
17. In the light of this we are of the considered view that the judgment of the High Court convicting the accused for the offences with which the accused was charged cannot be sustained in law."
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 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 PW1 and also received the same knowingly that it was received by him as illegal gratification. Crl. Appeal No.1991-SB of 2008 -7- 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. 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.
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.
Accordingly, without further commenting upon the quality of prosecution evidence, this appeal is allowed, judgment of conviction and sentence dated 27.9.2008 is 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 18, 2012 R.S.