Punjab-Haryana High Court
Darshan Kumar vs State Of Punjab on 10 April, 1987
Equivalent citations: 1988CRILJ1446
JUDGMENT Ujagar Singh, J.
1. The appellant was approached by Harbans Singh s/o Harnam Singh of village Sallapur on 18th May, 1984 for getting copies of Jamabandi and Khasra Girdwari for obtaining fertilizer loan. Tarsem Singh also came there in the Patwarkhana of the appellant and copies of Jamabandi and Khasra Girdawri were also required by him. Harbans Singh was asked by the appellant to give him Rs. 100/- for the copies but Harbans Singh told the appellant that at that moment he did not have that much amount and that this amount was not the legal fee for the copies. Thereafter the appellant demanded Rs. 75/- from Tarsem Sing for supplying the copies and received that amount from him. Harbans Singh made entreaties to the appellant that he was a poor man and an amount of Rs. 10/- or Rs. 15/- would be enough for the said copies. Harbans Singh went back and on23rd May, 1984 he came to Vigilance Bureau office at Gurdaspur with two currency notes of the denomination of Rs. 50/- each. Harbhajan Singh, D.S.P. Vigilance Bureau met him in that office and Harbans Singh narrated the whole episode.
His statement, Exhibit PA was recorded Which in token of its correctness was thumb-marked by him. A Constable was sent by D.S.P. to bring some respectable person from outside and Dharam Singh P.W. was brought by the constable. Statement of Harbans Singh, Exhibit P.A. was actually recorded in the presence of this Dharam Singh P.W. Harbans Singh gave everything he had with him to Dharam Singh P.W. and produced the said currency notes, PI and P2 before the D.S.P. who after putting initials thereon treated them with phenolphthalein powder and after giving demonstration regarding the effect of the said powder with sodium carbonate, the Deputy Superintendent of Police washed his hands with soap and then handed over those currency notes to Harbans Singh through recovery memo. Exhibit P.B. Harbans Singh was directed to contact the appellant and to hand over the said currency notes only on demand by the appellant and not to shake hands with him. Dharam Singh P.W. was directed to act as a shadow witness and see the passing on of the said currency notes by Harbans Singh to the appellant and hear the conversation which takes place between them. Dharam Singh P.W. was further directed to raise a signal after the appellant had accepted the aforesaid currency notes from Harbans Singh.
2. From the Vigilance Bureau Office, D.S.P. Vigilance, Harbans Singh, Dharam Singh and some Constable of that bureau went in a jeep and at Qadian near the Warehouse, the jeep was parked. Mehtab Singh, Lambardar of village Nangal was joined and he satisfied himself by searching the person of Harbans Singh that the latter had nothing on his person apart from those currency notes. Harbans Singh and Dharam Sing P.Ws. started on foot for village Bhaini Banger to contact the appellant in the Patwarkhana there. The appellant was asked by Harbans Singh to supply him copies of the Jamabandi and Khasra Girdwari and thereafter the appellant asked Harbans Singh, if he had brought Rs. 100/-. Harbans Singh replied in the affirmative and gave two currency notes of the denomination of Rs. 50/- each to the appellant. These two currency notes were placed by the appellant on a chaddar tying spread on the cot and thereafter he placed some register on those currency notes and supplied him copies of the Jamabandi and Khasra Girdawari. Dharam Singh P.W. raised signal on which the D.S.P. Harbhajan Singh, Mehtab Singh Lambardar and Chaman Lal Driver of jeep and others came in the Patwarkhana. The person of the appellant was secured from his arms and D.S.P. disclosed his identity to him. Harbans Singh told the D.S.P. that the accused had placed the said currency notes,after having accepted from him, on the chaddar lying spread on the cot and had placed register on the same. D.S.P. gave his personal search to the appellant and the P.Ws. and then recovered the said-currency notes, Exhibits P.I and P2 lying beneath some register on the chaddar spread on the cot. Two glass tumblers containing water were brought and Chaman Lal, Driver of the jeep prepared solution of Sodium Carbonate into one glass tumbler and the appellant was made to dip fingers of his hands in that tumbler and the colour of the same became pinkish. The solution in the tumbler was put into a phial D.S.P. prepared solution of sodium carbonate in the other tumbler and that portion of the chaddar touching the currency notes was dipped in that tumbler and the colour of the solution became pinkish. This solution was also put in another phial. Both these phials, Exhibits P.6 and P.7 were sealed. Currency notes Exhibits P. 1 and P.2 copies of Jamabandi Exhibit P.3, Girdawari P.4 and Chaddar P.5 and Phials P.6 and P.7 were taken into possession vide memo. Exhibit P.C. Sanction, Exhibit P.G. was obtained for prosecution of the appellant under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 and Section 161, Penal Code, from Shri J.S. Maini, Deputy Commissioner, Gurdaspur, who is the appointing, removing and dismissing authority of the appellant and other revenue Patwaris. Phials, Exhibits P.6 and P.7 were sent to the Director, Forensic Science Laboratory, who vide his report Exhibit P.K. found that sodium ions, carbonate ions and phenolphthalein powder were present in the contents thereof.
3. After hearing the parties and perusing the documents on record, the appellant was charged under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 161, Penal Code. The appellant pleaded not guilty and claimed trial.
4. To prove its case, the prosecution examined Harbans Singh P.W. 1, Dharam Singh P.W. 2, Des Raj Naib Sadar Qanungo, D.C. Office, Gurdaspur, P.W. 3, Kuldip Singh, Bill Clerk, Office of the S.D.O. (C) Gurdaspur P.W. 4, Mehtab Singh P.W. 5, Inder Singh, Naib Tehsildar Qadian, P.W. 6, Chaman Lal P.W. 7, Mani Lal Sadar Qanungo D.C. Office, Gurdaspur (P.W. 8), Tarsem Singh, P.W. 9, MHC Suram Singh P.W. 10 and constable Janak Ram, P.W. 11 and Harbhajan Singh, D.S.P., P.W. 12.
5. The appellant, when examined, under Section 313, Criminal P.C. denied the" allegations and stated that it was a false case. He further stated that Harbans Singh, Dharam Singh and Tarsem Singh were friends and Mehtab Singh P.W. is a stock witness while Chaman Lal P.W., being an employee, was an interested witness. He further stated that Dharam Singh had a quarrel with him and he conspired with Harbans Singh to falsely implicate him. It was stated that copies of Jamabandi and Khasra Girdawari had already been supplied to Harbans Singh P.W. and there was no occasion to make payment of Rs. 100/- for the supply of copies on 23rd May, 1984 on which date when the appellant had gone to urinate, Harbans Singh stealthily put the currency notes under the register and got him involved in this case. Harbhajan Singh Patwari Halqa Bhaini Bangar, D.W. 1, Surjit Singh Ahlmad, Court of C.J.M. Gurdaspur, D.W. 2 were examined in defence.
6. After hearing both the sides, the Special Judge believing the prosecution evidence convicted the appellant under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and Section 161, Penal Code, and sentenced him to rigorous imprisonment for one year and a fine of Rs. 500/- or in default of payment of fine to undergo further rigorous imprisoment for three months under Section 5(2) read with Section 5(1)(d) of the said Act. He was further sentenced to undergo rigourous imprisonment for one year and to pay a fine of Rs. 250/- or in default of payment of fine, to undergo further rigourous, imprisonment for three months under Section 161, Penal Code.
7. Learned Counsel for the appellant has taken me through the statements of prosecution witnesses and that of the defence witnesses. He laid great stress on the testimony of Harbhajan Singh D.S.P., who has been examined as P.W. 12 and according to the counsel he is the main architect of this case. He has drawn my attention to judgments Exhibits D.I, D.2, D3 and D.4. Vide copy of judgment D.I in State v. Ajit Singh the accused was tried but was acquitted as the Court held that the prosecution case against him has not been proved beyond reasonable doubt. At the time of that case, Harbhajan Singh, D.S.P. was only an Inspector and Shri G.S. Chahal, Additional Sessions Judge, Amritsar observed as under:
...I have no hesitation in saying that Inspector Harbhajan Singh had intentionally denied the defence suggestion of Lachhman Singh being a recovery witness. Lachhman Singh was admitted by Inspector Harbhajan Singh to have joined as a witness in the murder case. Judged in the light of the facts Lachhman Singh cannot be described as an independent witness....The conduct of the Inspector is not impartial and he has selected one witness who was his trusted man and another witness who was inimical towards the accused.
In judgment, Exhibit D. 2 in the case of State v. Manohar Lal, Shri Mewa Singh Gill, Special Judge, Amritsar, made the following observations:
...Regarding Chain Singh P.W. it has been admitted by him and the Vigilance Inspector (reference is to Harbhajan Singh D.S.P.) as well that he was previously also joined by this Vigilance Inspector Harbhajan Singh in such a raid against A.S.I, Kartar Singh, which shows that he is always convenient to this Vigilance Inspector....
There is also the report of Daily Diary of Police Station, Civil Lines, Amritsar dt. 31-10-1975 and Exhibit D.5~ is the copy of the Daily Diary of that date, which has been recorded by Inspector Pritam Singh Nagra, who was Inspector there. In this report it has been stated that the Vigilance Inspector Harbhajan Singh came to the Police Station and he protested to Inspector Pritam Singh Nagra that A.S.I. Ram Lubhaya of that police station had not properly behaved with this witness Chain Singh, P.W. 1 and that he was very much upset and rather threatened them that they would have to face the consequence, if anything is said to Chain Singh P.W. It is also contained in this report that Chain Singh' P.W. is a bad character-A of that Police Station and it was most improper and objectionable for Inspector Harbhajan Singh to help him in that manner....This shows that Inspector Harbhajan Singh was having close connections with Chain Singh P.W. In copy of judgment, Exhibit D.3 in case State v. Mohinder Singh, Shri Mewa Singh, Special Judge, Amritsar, made the following observations against Harbhajan Singh P.W. 12 in this case:
...P.W. 2 Ajit Singh, shadow witness is also not disinterested person. He had previous contacts with the Vigilance Inspector Harbhajan Singh. It has been admitted by this witness that Vigilance Inspector Harbhajan Singh joined him in the case of raid against Ram Nath Constable on 15-5-1976, i.e. about 11 months before this raid which shows that his contacts with Vigilance Inspector were old. The Vigilance Inspector then joined him in this raid for the second time and thereafter for the third time also Vigilance Inspector Harbhajan Singh joined him in another raid on 11-5-1978.
In copy of judgment, Exhibit D.4 Brij Mohan v. State of Punjab (Cr. A. No. 629-SB of 1983) K.P.S. Sandhu J. (as he then was) made the following-observations:
...Shadow witness Charan Singh P.W. 9 admittedly is a police employee. He admitted that he got the employment and medical certificate of fitness with the help of Harbhajan Singh, Vigilance Inspector. It has further come in his evidence that Shangara Singh uncle of Charan Singh P.W. had been appearing as a witness in some raids conducted by Harbhajan Singh as is obvious from Exhibit D.4. So by no stretch of imagination Charan Singh can be said to be an independent witness. His being a member of the raid party also tells upon the conduct of Harbhajan Singh, Vigilance Inspector who particularly chose Charan Singh to act as a shadow witness. Harbhajan Singh Inspector is such a witness whose conduct was adversely commented upon in many judgments by the judicial authorities.
In all the said judgments, Exhibits D. 1 to D.4, the testimony of Harbhajan Singh, D.S.P. was not only commented upon but also not relied upon and the accused were acquitted. In view of the said observations against the testimony of Harbhajan Singh, D.S.P., the Court has to be cautious in relying upon his testimony.
8. According to Harbans Singh P.W. 1 he contacted the appellant on 18-5-1984 and asked for supply of copies of Jamabandi and Khasra Girdawari for obtaining fertiliser loan. The appellant had demanded an amount of Rs. 100/- for the supply of those copies but Harbans Singh told him that the amount was not the legal fee for such copy. He made entreaties to the appellant that he was a poor man and that he should accept Rs. 10/- or Rs. 15/- for the supply of said copies. Thereafter this witness remained quiet for about 5 days and has given no explanation as to at what amount the deal was struck and what was finally agreed to by the appellant. Harbans Singh P.W. has given no explanation as to what for he waited up to 23rd May, 1984 and all of a sudden he thought of going to the Vigilance Bureau office and meet Harbhajan Singh D.S.P. there. The learned Counsel has further argued that a Constable is said to have been sent for bringing another witness and immediately Dharam Singh P.W. was available in the S.S.P's office. According to Harbans Singh P.W. 1 when after the raid party had stayed behind, he and Dharam Singh P.W. 2 went to the appellant in his Patwarkhana where the appellant was available. He asked the appellant to supply copies of Jamabandi and Khasra Girdawari whereupon the appellant asked him if he had brought Rs. 100/- to which he replied in the affirmative and gave Rs. 100/- in the form of two currency notes of the denomination of Rs. 50/ each, whereupon the appellant gave him the said copies after preparing the same in his presence. According to Dharam Singh P.W. 2, the raid party set out for the Patwarkhana and when he and Harbans Singh were set out by the D.S.P. to contact the appellant they went there and found the appellant alone sitting there on a cot. On seeing Harbans Singh, the appellant asked him if he had brought Rs. 100/- when Harbans Singh asked for copies of Jamabandi and Khasra Girdwari. He further stated that the appellant then kept preparing the copies and after the same were ready, the appellant demanded Rs. 100/- from Harbans Singh, who accordingly gave two currency notes Exhibits P.I and P.2. According to Harbans Singh he gave the amount as soon as it was asked for and in token of receipt thereof the appellant gave the copies P.3 and P.4 after preparing them in his presence whereas according to Dharam Singh P.W. when Harbans Singh, as soon as he appeared, asked for copies of Khasra Girdawari and Jamabandi, the appellant started preparing copies of Jamabandi and Khasra Girdawari and after he had prepared the same he demanded Rs. 100/- from Harbans Singh and the latter gave himthecurrencynotesExhibits P.1 and P.2. The testimony of these two witnesses is thus contradictory and throws a doubt as to whether copies were prepared after the appellant demanded the amount and the same was given to him or he prepared the copies and gave it to Harbans Singh P.W. 1 and it was only thereafter that he had demanded the amount of Rs. 100/-. This makes the very demand of amount of Rs. 100/- by the appellant from Harbans Singh P.W. 1 doubtful. Their Lordships of the Supreme Court in Bal Krishan Sayal v. State of Punjab Criminal Appeal No. 229 of 1977 decided on 28th January, 1987 ((1987) 1 Supreme Views and Law Reporter (Cr) 72) : 1987 Cri LJ 533 observed as follows:
...Khazan Singh as noticed by the High Court did not speak as to what transpired in the conversation between the bribe giver and the appellant The other witness too was not very clear as to what talk preceded the passing of the two currency notes.
Taking the unsatisfactory character of the prosecution evidence in regard to the conversation preceding the passing of the currency notes and the feature that for waiver ofRs. 102/-, the bribe of Rs. lOOZ-wasoffered, we are inclined to take the view that the prosecution has failed to establish its case beyond reasonable doubt.
In the testimony of both these witnesses, the copies were prepared by the appellant in their presence and thereafter handed over to Harbans Singh. A mere look on the copies prepared and delivered and then taken into possession by the police shows that the same were prepared on 22-5-1984 and not on 23-5-1984 and this date mentioned on the copies gives support to the appellant that the copies had been delivered to Harbans Singh P.W. 1 on 22-5-1984 and it was thereafter that this case was concocted against him.
9. It has been further argued by the learned Counsel for the appellant that Chuman Lal driver was asked to search the accused. Chaman Lal has appeared as P.W. 7 and admitted that from the personal search of the appellant one wrist watch and Rs. 590/- were recovered. This Chaman Lal had also searched the person of Harbans Singh including his pocket in which currency notes Exhibits P.1 and P.2 were lying. Chaman Lal P.W. 7 was the driver of the jeep in which the raiding party travelled up to he warehouse, Qadian. According to him, one Gurbagh Singh P.W. was joined on the way when he along with others started towards Patwarkhana after getting the signal raised by Dharam Singh P.W. According to him, Dharam Singh had told the D.S.P. that the accused had taken bribe money from him and he had placed the same Underneath register lying on the bed-sheet spread on the cot. In cross-examination he said that Mehtab Singh was coming from the opposite side when their jeep had already been parked and Mehtab Singh was joined in the raiding party. Chaman Lal P.W. 7 is the person who sent for a tumbler containing water into which solution of sodium carbonate was prepared and he was the person who made the appellant to dip the fingers of his hands turn by turn. According to the statements of these witnesses, it is quite certain that hands of Chaman Lal came in contact with the pocket of Harbans Singh's Shirt in which currency notes Exhibits P.1 and P.2 were kept. The necessary inference can, therefore, be drawn that the hands of Chaman Lal had a touch with phenolphthalein powder and in case his hands had been dipped, the solution of Sodium Carbonate in the tumbler must have turned pinkish. It is surprising why [the hands of the appellant were not got dipped by Harbhajan Singh P.W. 12. May be that when Chaman Lai, according to the prosecution version, got the hands of the appellant dipped into the solution of Carbonate, the water became pinkish because of the handsof Chaman Lal also gettingdipped into the solution.
10. Chaman Lal P.W. 7 has introduced a new witness, namely, Gurbagh Singh who was, as already stated, joined by the party on their way from warehouse, Qadian to the Patwarkhana near the flour mill and this Gurbagh Singh was cited as a witness and had reached the Patwarkhana along with others. Mehtab Singh P.W. 5 has also stated that when the raiding party was going to the Patwarkhana on getting the signal, Gurbagh Singh P.W. was joined on the way and thereafter the party entered Patwarkhana. Harbhajan Singh P.W. 12 has not specifically stated that any Gurbagh Singh was joined in the raiding party at any stage. Harbahs Singh P.W. 1 and Dharam Singh P.W. 2 have not mentioned the presence of any Gurbagh Singh during the time of raid. However, Gurbagh Singh was mentioned as prosecution witness in the list of witnesses and it was ultimately on 21st Pec, 1984 that Additional Public Prosecutor appearing for the State gave up Gurbagh Singh P.W. as having been won over. Therefore, this joining of Gurbagh Singh as a fact remains a mystery and it cannot be said whether any such witness was joined at all in the raiding party or not. Surprisingly enough, Gurbagh Singh purports to be a witness of recovery of record vide memo. dt. 23rd May, 1984, which bears his signatures.
11. So far as the recovery of copy of khasra Girdawari and Jamabandi is concerned, Harbans Singh P.W. 1 stated that after preparing these copies, the appellant had given the same to him and when-Harbhajan Singh P.W. 12 raided the Patwarkhana, he produced Exhibits P.3 and P.4 beforehim and the same were taken into possession vide recovery memo Exhibit P.E. Contrary to this is the statement of Mehtab Singh P.W. 5, who stated that copies of Khasra Girdawari, Exhibit P.3 and Jamabandi Exhibit P.4 were taken into possession by D.S.P. from the appellant. He has also stated that these copies were lying on the table and the appellant had given them to the D.S.P. A prayer was made by the Additional Public Prosecutor to cross-examine Mehtab Singh P.W. 5 and he was allowed to do so but in cross-examination, nothing material has been brought out to show that this witness has given a different statement than his earlier one. Rather in cross-examination, this witness stated that the D.S.P. took into possession Jamabandi and Khasra Girdawari from Tarsem Singh P.W., which is not the case of the prosecution. Mehtab Singh P.W, 5 for giving reason of his presence at that time at the place of joining the raiding party is that he wanted to purchase a leveller (Suhaga) from the Saw Mill near the warehouse. In further cross-examination he admitted that he never purchased the leveller even thereafter. According to this witness, he was present near the warehouse of Railway crossing when he was joined by the D.S.P. but according to Chaman Lal P.W. 7 this Mehtab Singh was coming from opposite side when he was joined after the jeep had already been parked. Tarsem Singh P.W. 9 stated that in the month of May, 1984 when he went to obtain copies of Jamabandi from the appellant, no talk had taken place between Harbans Singh P.W. 1 and the appellant in his presence. The Additional Public Prosecutor also sought permission of the Court to cross-examine this witness and in cross-examination this witness stated that although the appellant had asked for a sum of Rs. 100/- as bribe from Harbans Singh in token of the supply of copies but Harbans Singh had stated that he would not give him anything as bribe. This part of the statement contradicts Harbans Singh P.W, 1.
12. Joining of Dharam Singh who happened to be present in the precincts of S.S.Fs office is not believable inasmuch as a Constable was sent for calling a person by the D.S.P. and that Constable went to the S.S.P's office and brought Dharam Singh as if he was actually waiting for being joined. There is no plausible explanation for his presence there. This witness admitted that they are six brothers jointly living in the same house and his father had three sisters, out of whom one was dead. A suggestion was put to him on behalf of the appellant that the land was mutated in the name of his father, two sisters and all the six brothers and his father was to obtain fertiliser loan for which he got Rs. 2,000/- after a month on'23rd May, 1984. He also admitted that his father got copies of Jamabandi and Khasra Girdawari from another Patwari. Another suggestion was given to him that he approached the appellant before 23rd May, 1984 for getting the copies and the witness insisted upon the appellant that copies of Jamabandi and Khasra Girdawari of the entire 56 Kanals of land be given showing his father Makhan Singh alone as an owner to which the appellant refused. In view of the circumstances, it looks that Dharam Singh P.W. 2 was not on good relations with the appellant.
13. From the observations made above and the discrepancies specifically noticed and the conduct of Harbhajan Singh P.W. 12 as also the major discrepancy as to whether the currency notes, Exhibits P.1 and P.2 Were given before the appellant started preparing the copies or were given after the copies were prepared and delivered to Harbans Singh P.W. 1,1 am of the view that the prosecution has failed to prove its case beyond reasonable doubt. This appeal is, therefore, accepted. The conviction and sentence imposed by the trial Court are set aside and the appellant is acquitted of all the charges. Fine, if paid, be refunded.