Punjab-Haryana High Court
Raghbir Singh vs State Of Haryana on 30 August, 2011
Author: L.N. Mittal
Bench: L.N. Mittal
Criminal Appeal No.114-SB of 2000 :1:
IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
Criminal Appeal No.114-SB of 2000
Date of decision: 30.08.2011
Raghbir Singh .....Appellant/Applicant
Versus
State of Haryana ..Respondent
CORAM: HON'BLE MR. JUSTICE L.N. MITTAL
Present:- Mr. Raj Kumar Gupta, Advocate
for the appellant.
Mr. Sumeer Singh, AAG, Haryana.
----
L.N. Mittal, J.(Oral)
Accused Raghbir Singh, Head Constable, having been convicted under Section 7 of the Prevention of Corruption Act, 1988 (in short, the act) and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1000/- and in default thereof, to undergo further imprisonment for three months, vide judgment dated 12.01.2000 and order dated 14.01.2000 by Ld. Special Judge/ Additional Sessions Judge, Jhajjar, has filed the instant criminal appeal impugning his conviction and sentence.
Prosecution case is that on the instigation of Police official including the accused posted in police post Linepar, Police Station City Bahadurgarh, Mahender younger brother of complainant Shri Kishan used to pick up quarrels with anyone on the assurance of police officials that nothing would happen to him. However, police officials used to call Mahender and demand money from him Criminal Appeal No.114-SB of 2000 :2: whenever he picked up quarrels. In the same sequence, the accused visited the house of the complainant on 18.07.1994 and demanded Rs.1000/- as bribe for hushing up a case against complainant's brother. The complainant told the accused that he shall pay the money next day i.e on 19.07.1994. The complainant sent his brother Mahender to Bombay in a truck to transport goods. On 19.07.1994, the complainant moved application before Superintendent of Police (SP), Rohtak who marked the same to Deputy Superintendent of Police (DSP), Head Quarter, Rohtak namely Ms. Raj Shri Singh , DSP, who joined T.K. Sharma, the then Sub-divisional Magistrate (SDM), Rohtak and Anil Kumar Dhawan, DSP, City Rohtak in the raiding party. The complainant gave currency notes valuing Rs.1000/-. The same were initialled by Raj Shri Singh, Investigating Officer (I.O.) and by the SDM. Phenolphthalein powder was applied on the notes. The notes were returned to the complainant with direction to pay the same to the accused on his demand. The SDM was appointed as shadow witness. FIR was got registered by sending the complainant's application with endorsement of I.O. to the Police Station. Trap was laid. The complainant gave the tainted currency notes to the accused on his demand and on his signal, other members of the raiding party reached the police post and apprehended the accused. The tainted currency notes were recovered from the pocket of the shirt which the accused was wearing. The said pocket of the shirt, the tainted currency notes and hands of the accused were washed in separate solutions of Sodium Carbonate which turned pink. The solutions were sealed in nips. All the articles were seized by the police. Necessary investigation Criminal Appeal No.114-SB of 2000 :3: proceedings were conducted. Statements of witnesses were recorded. The accused was arrested. Sanction order for prosecution of the accused was obtained. On completion of investigation, police presented report under Section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of the accused.
Charge under Section 7 of the Act was framed against the accused who pleaded not guilty and claimed trial.
In support of its case, the prosecution has examined 11 witnesses. Mahender Singh, Draftsman-PW1 stated that he prepared scaled site plan.
Head Constable, Umed Singh, PW-2 brought character roll record of the accused and proved his posting.
S.I., Ram Sarup-PW-3 stated that he recorded formal FIR in this case and also sent special report of the case to concerned authorities. He also stated that no complaint had been received against the complainant or his brother.
Complainant, Shri Kishan, PW-4 broadly stated according to the prosecution version with some variation.
Om Parkash Kadian, DSP-PW-5 stated that he partly investigated the case.
Mohammad Akil, S.P.,PW-6 stated that complainant had presented application before him and he marked it to DSP, Rohtak for conducting raid and for investigating the case. He also marked it to the concerned SHO to register case.
Head Constable, Satbir Singh, PW-7 proved order of suspension of the accused and also sanction order for his prosecution.
Criminal Appeal No.114-SB of 2000 :4:
K.P.Singh, Superintendent of Police-PW-8 also proved sanction order for prosecution of the accused issued by him.
Complainant's brother Mahender-PW-9 stated about demand of Rs.1000/- as bribe by the accused with threat that his Video Library Shop would be got closed.
Sh.T.K. Sharma, SDM-PW-10 and Raj Shri Singh, DSP-PW-11 broadly stated according to the prosecution version. PW-11 also stated about investigation of the case conducted by her.
Affidavits of some formal witnesses were tendered in evidence and the defence counsel did not want to cross-examine the said deponents. Anil Dhawan, DSP-PW has given up as unnecessary. Report of Forensic Science Laboratory was tendered in evidence.
The accused in his examination under Section 313 Cr.P.C. admitted his posting in the concerned police post, but denied all the other incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. The accused however, admitted that he was placed under suspension vide order Ex.PG dated 26.07.1994. The accused alleged that the complainant was annoyed with him because complainant's brother had been taking liquor in the company of the accused whereas the complainant had been parking his truck in front of his house causing annoyance to other residents of the locality and thereupon the accused intervened and got removed the truck from that place. The accused also stated that he was sent to the police post by telling about the visit of higher police officers and he went there to change his dress, but in his absence, the complainant put the currency notes in the Criminal Appeal No.114-SB of 2000 :5: pocket of his shirt which was lying on the table.
In defence,the accused examined Hukam Chand, DW1 who stated that on intervention of the police officials, the complainant had to remove the truck parked by him in the street in front of his house.
Ld. Special Judge, Jhajjar vide impugned judgment and order, convicted and sentenced the accused as already noticed herein before. Feeling dissatisfied, the convict has filed the instant criminal appeal.
I have heard learned counsel for the parties and perused the case file with their assistance.
Before proceeding further, it may be noticed that while posted as Additional Sessions Judge/ Special Judge, Rohtak, I had recorded statement of K.P. Singh (SP) PW-8 a formal witness to prove sanction order for prosecution of the accused and affidavit one formal witness was also tendered. This fact has been pointed out to learned counsel for the appellant who stated that notwithstanding the same, the appeal may be decided by me.
Learned counsel for the appellant vehemently contended that the appellant-accused was posted as only a Head Constable in the police post and was not in charge thereof. It was also contended that the accused had unblemished service record of 32 years i.e. since November 1962 to July 1994. It was also pointed out that the charge framed against the accused by the Trial Judge is defective regarding demand of bribe money for hushing up criminal complaint against the complainant Shri Kishan and not against his brother Mahender. It was also pointed out that as admitted by Ram Criminal Appeal No.114-SB of 2000 :6: Sarup, PW-3, no complaint was pending against the complainant or his brother on the date of raid and therefore, the prosecution version is improbable. It was also pointed out that the complainant while appearing as PW-4 has stated a different version in as much as according to him. Bijender Singh, Incharge of Police Post, was demanding the bribe money and thereafter, the accused and Mehtab Singh started visiting the complainant's house demanding the amount of Rs.1000/- as directed by Bijender Singh. The complainant went on to state that initially he had made application against all the three police officials but later on, application was obtained against the accused only. Reference was also made to testimony of complainant's brother Mahender PW-9 who stated about demand of bribe under threat of closing his Video Library Shop. He also admitted the defence version that the accused had made them to avoid to park truck in the street on complaint made by residents of the area. It was also pointed out that Mahender PW-9 has not stated about the demand of bribe from the complainant but stated that demand was also made from their mother. It was next argued that T.K. Sharma, SDM-PW-10 stated that the complainant had not delivered the money to the accused in his presence nor he had heard the conversation between the complainant and the accused and therefore, this witness cannot be termed as shadow witness in true sense. It was also submitted that Anil Dhawan, DSP has not been examined although search of the accused to recover the tainted currency notes was effected by him, as stated by Raj Shri Singh (I.O.), PW-11. It was accordingly contended that demand and acceptance by the accused, which is essential ingredient of the Criminal Appeal No.114-SB of 2000 :7: offence in question, has not been proved.
On the other hand, learned State Counsel contended that all the prosecution witnesses have supported the prosecution case and their statements are sufficient to prove the guilt of the accused. It was also pointed out that recovery of the tainted currency notes from the accused is proved from the statements of the complainant, the SDM and the IO. Prosecution case regarding recovery of the tainted money is strengthened by hand wash and pocket wash of the shirt of the accused.
I have carefully considered the rival contentions. All the prosecution witnesses have broadly supported the prosecution case. The complainant might be having some motive against the accused as brought out by the accused in his defence version regarding removal of truck parked by the complainant. However, there is no reason to doubt or discard the statements of the SDM and the IO (both gazetted officers). They would not have implicated the accused in false case merely at the asking of the complainant. They would not have deposed falsely against the accused without any reason. Demand and acceptance of the bribe money by the accused is proved from the testimony of the complainant as corroborated by the sworn statement of his brother. It is correct that these two witnesses have made some variations in their statements during trial, but the testimony of the complainant basically does not vary from the substratum of the prosecution case. The variations do not go to the root of the case. SDM was appointed as shadow witness. However, he did not see that tainted currency notes had been delivered by the complainant to the accused nor heard their conversion, but Criminal Appeal No.114-SB of 2000 :8: immediately after the money was handed over by the complainant to the accused, other members of the raiding party including SDM and IO reached there. The accused was searched immediately and the tainted currency notes were recovered from the pocket of his shirt. Hand wash and pocket wash of shirt of the accused further corroborate the prosecution version regarding acceptance of the tainted currency notes by the accused and recovery thereof from him.
Merely because the accused was not incharge of the police post but was only posted as Head Constable would not be sufficient to suspect the prosecution case in any manner. The fact that the accused had already put in 32 years of service would also not go adversely against the prosecution version in any way.
Minor defect in the charge sheet also does not entitle the accused to acquittal particularly in view of Section 464 Cr.P.C. which specifically lays down that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any mis-joinder of charges unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. In the instant case, by minor error in the charge framed by the trial Judge, it cannot be said that failure of justice has been occasioned thereby in any manner. On the contrary, the accused-appellant was aware of the prosecution version since inception. He had been provided with copies of all the documents. He was also represented by counsel of his choice through out the trial. Thus it is manifest that Criminal Appeal No.114-SB of 2000 :9: no failure of justice has been occasioned by the minor error in the charge. Consequently, the accused cannot derive any benefit from it.
The prosecution version cannot be said to be improbable on the face of it even if no complaint was pending against complainant's brother. It has come in the statements of complainant and his brother that the latter had a quarrel with one Nafe Singh and therefore, the accused was demanding illegal gratification, although formal complaint might not have been entertained regarding the said quarrel.
Non-examination of Anil Dhawan, DSP has no adverse bearing on the prosecution case because he could not add anything to what has been stated by the SDM and the IO examined as PWs. It would have been avoidable duplicity of evidence to examine Anil Dhawan as PW. It may be mentioned that according to Section 134 of the Evidence Act, no particular number of witnesses is necessary to prove a fact. In the instant case, material witnesses have been examined and therefore, examination of Anil Dhawan also as PW would have been unnecessary burden on the file.
For the reasons aforesaid, I find that the prosecution has led sufficient cogent and credible evidence to prove the guilt of the accused beyond reasonable doubt. Accordingly impugned judgment of conviction is affirmed.
Learned counsel for the appellant prayed for reduction in sentence submitting that the occurrence took place 17 years ago and the appellant has faced the agony of trial including present appeal during this long period. It was also submitted that the appellant had put in 32 years of service. It was also pointed out that Criminal Appeal No.114-SB of 2000 :10: the accused is aged about 73 years because his date of birth is 22.11.1938 as stated by Head Constable, Umed Singh, PW-2 in cross-examination. Prayer for reduction in sentence has been opposed by learned State Counsel. I have carefully considered the matter. Keeping in view of the aforesaid circumstances, I am of the considered opinion that ends of justice would be met if the sentence of rigorous imprisonment is reduced to one year while maintaining the sentence of fine and sentence of imprisonment in default thereof. It is ordered accordingly.
With reduction in sentence as aforesaid, the instant criminal appeal stands disposed of accordingly.
The appellant who is on bail shall surrender to his bail bonds or shall be arrested to undergo the remaining sentence.
(L.N. MITTAL) JUDGE 30.08.2011 sonika