Punjab-Haryana High Court
Jagdish Chander vs State Of Haryana on 30 January, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Appeal No. 1619-SB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Appeal No. 1619-SB of 2003
Date of decision : 30.01.2013
Jagdish Chander .....Appellant
VERSUS
State of Haryana ....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. A.P.S. Deol, Senior Advocate with
Mr. Vishal Rattan Lamba, Advocate
for the appellant.
Ms. Shruti Jain, AAG, Haryana
for the State.
****
RANJIT SINGH, J.
Inspector of Police stands convicted for offence punishable under Section 7/13 of the Prevention of Corruption Act and was sentenced to undergo rigorous imprisonment for 3 ½ years coupled with fine Rs. 5,000/-. In default of payment of fine, he was further required to undergo rigorous imprisonment for six months. He is in appeal before the Court against his conviction and the sentence as imposed.
The appellant was working as Inspector Police, CIA Staff Rohtak in the year 2002, where he was posted on 17.05.2002. The Criminal Appeal No. 1619-SB of 2003 2 appellant remained on this post till 17.08.2002 and thereafter was transferred. On 02.09.2002, one Bhagwat Swarup moved an application before the Superintendent of Police, Rohtak alleging that the appellant used to collect money from him as he was dealing with Sattabazi (gambling). As per the complainant, he had left this habit and now he was working as vegetable vender for about 4/5 months. As per the complainant, he stopped the payment of money to the appellant as he had discontinued gambling. On this count, he was falsely implicated in two cases. One was under Gambling Act, 1967 and another under Section 160 of the Indian Penal Code. In his complaint, he had further mentioned that the Inspector had threatened him to falsely implicated in some other cases, if his demand of money was not met.
It is alleged that 10-12 days prior to the date of the application, the appellant had demanded sum of ` 8,000/- from the complainant. He was not willing to pay this amount. The complainant had, accordingly, moved an application before the District Magistrate, Rohtak to depute the Magistrate to accompany them. Naib Tehsildar was detailed to join as official witness. Though this was not stated in the complaint but is disclosed now before the Court that the complainant had paid sum of `5,000/- to the appellant on 12.08.2002 and the remaining amount was yet to be paid. It is in this background, he was asked to produce sum of ` 3000/- before the Deputy Superintendent of Police, Hukam Singh. The currency notes were, accordingly, arranged and made available, which were applied with Phenolpathlein powder. Naib Tehsildar who was detailed as Criminal Appeal No. 1619-SB of 2003 3 independent witness by the DSP put his initials and handed over the currency notes to the complainant for being given to the appellant. One Pardeep Kumar was joined in the raiding party to act as shadow witness. He was told to give signal to the police party once the bribe amount was handed over to the appellant.
Thereafter, all the persons had left for CIA Staff, Rohtak. As per the complainant, he gave sum of ` 3000/- to the appellant and signalled this to shadow witness who further signalled it to the police party. The police party then went inside the CIA Staff, Rohtak. On demand by the police party, the appellant took out ` 3000/- from the drawer of the table and handed it over to the police party. Number of currency notes were compared with the memo earlier prepared by them. These were found to be the same currency notes. The currency notes when washed with sodium carbonate, the colour of the water turned pink. Nip of the sample was separately sealed. Parcel of the currency notes was also prepared and sealed. Both the parcels were taken into possession vide memo Ex. PC, which was duly attested by the witnesses.
The appellant was also asked to wash his hands with sodium carbonate. The colour of the water turned pink. This nip was also separately sealed, which was further taken into possession. The hands of the complainant was also got washed with such water, which also turned pink. The nip of the same was also got prepared and separately sealed. The samples were taken into possession. The complaint, Ex. PA was sent to the Police Station for registration of the case alongwith endorsement leading to registration of formal Criminal Appeal No. 1619-SB of 2003 4 FIR. The appellant was charge sheeted and proceeded against leading to his conviction and the sentence as already noted.
Prosecution examined as many as 11 witnesses in support of its case. However, the main reliance by the prosecution is on the version of the complainant, shadow witness or the official witnesses. Some of witnesses examined appears to be formal but came forward to depose about the incident in detail connected with the case. The complainant has primarily supported the prosecution case and so is the version of shadow witness.
Learned senior counsel appearing for the appellant has made me to go through the evidence of complainant and shadow witness and other relevant evidence. On the basis of evidence and the material, which has come on record, counsel would contend that neither the complainant nor the shadow witness are having such credence that this Court should rely on their version. Counsel has referred to antecedents of the complainant, which are nothing to boost about. He is concededly a person, who was involved in sattabazi. Otherwise also number of criminal cases are registered against him. The shadow witness, as per the counsel, had not been a witness to the demand and, accordingly, counsel would contend that the prosecution was unable to establish the demand, which is essential ingredient of the evidence. The counsel, accordingly, would contend that it would not be safe to convict the appellant on the basis of such infirm evidence.
State counsel, on the other hand, would contend that there is no explanation forthcoming about the recovery. The recovery Criminal Appeal No. 1619-SB of 2003 5 as well as demand is supported by the complainant. State counsel, however, would submit that the credit must be given to the complainant, which has come out truthfully about all the pending cases and also has forthrightly stated that he was earlier involved in satta, which he has now stopped but still he was not allowed to live in peace, which had led to making of the complaint. As per the State counsel, the complainant rather than being discredited in any manner would deserve the credit that he has come before the Court in a forthright manner and has not felt shy even in disclosing his criminal background.
In the light of above submission, it is to be seen whether prosecution in this case has succeeded in establishing the charge against the appellant or not.
Before discussing the worth of evidence led by the prosecution, it would be appropriate to understand and examine the parameters, which are to be kept in view while assessing the reliability and worth of evidence of a trap witness, which the complainant is. It is viewed that such witnesses being concerned with the success of the trap are to be treated as interested witnesses and before relying on their version, the Court should require independent corroboration of their statements before convicting the accused. This was so observed by the Hon'ble Supreme Court in Darhsan Lal Versus The Delhi Administration, 1974 C.L.R. 611. However, this cannot be taken as a general rule and if the witness is otherwise reliable and independent, his association in a prearranged raid about which he had become acquainted would not make him an accomplice Criminal Appeal No. 1619-SB of 2003 6 or a partisan witness. In the absence of anything to warrant a contrary conclusion, conviction is not untenable merely because it is based on the testimony of such a witness. It is observed that every witness of a raiding party cannot be dubbed as an accomplice perse or even as an interested witness in total absence of material justifying such an inference. [See Maha Singh Versus State (Delhi Administration), AIR 1976 SC 449]. In Ram Parkash Arora Versus The State of Punjab, AIR 1973 SC 498, the court held that evidence of trap witnesses who are concerned in the success of the trap must be tested in the same way as that of any other interested witness and in a proper case Court may look for independent corroboration before convicting the accused person. Somewhat different observations were made in Dalpat Singh and another Versus State of Rajasthan, AIR 1969 SC 17, where the court held that trap witnesses cannot be considered as interested witnesses as regards their evidence relating to trap. As a matter of law, it is not correct to say that their evidence cannot be accepted without corroboration. Again in Sat Paul Versus Delhi Administration, (1976) 1 Supreme Court Cases 727, while talking about reliability of trap witnesses, the court has held that they are interested witnesses concerned with the success of trap. Qualitatively their testimony is inferior to that of an ordinary interested witness. In this case, the Court went further to make certain observations about the manner of appreciation of evidence of witness in such like cases. In this regard, it is observed that bad antecedents of persons with shady and questionable characteristics cannot as a general view taken on their word that they Criminal Appeal No. 1619-SB of 2003 7 were subject to extortion by the police. For weighing their evidence, there can be no specific canon and no generalization is possible. The Court has rightly held that every case has its own features and each witness his own peculiarities. If a witness is or witnesses are manifestly disreputable persons, then even minor discrepancies and small improbabilities in the testimony of such witnesses assumes importance in case of such witnesses. The necessity of corroboration of such interested witnesses from independent source may be essential where witnesses are found to have poor moral fibre with bad antecedents and are seem to have motive to remove the accused out of their way.
Recently, the Hon'ble Supreme Court in T.Subramanian Versus State of T.N., (2006) 1 Supreme Court Cases 401 has held that mere proof of receipt of money by accused, in the absence of proof of demand and acceptance of money as illegal gratification, would not be sufficient to establish guilt of the accused. In such cases, if the accused offers reasonable and probable explanation based on the evidence that the money was accepted by him, other than as a illegal gratification, then the accused was held entitled to acquittal.
It may need a notice here that the accused is required to prove his defence by preponderance of probabilities that the money was paid to him other than illegal gratification and if he is able to establish that fact on the basis of probabilities, it would cast doubt on the prosecution story and would entitle the accused person to an acquittal. Otherwise also, where two views are reasonably possible Criminal Appeal No. 1619-SB of 2003 8 from the same evidence, then the prosecution cannot be said to have proved its case beyond reasonable doubt.
Consensus of the judicial opinion as would emerge from the various judgments noticed above would tend to indicate that generally the courts would look for corroboration of trap witnesses, unless ofcourse they are otherwise found to be of reliable and of independent nature. They generally are equated with interested witnesses and the Court has to examine their evidence with care and caution.
The question would arise as to how much corroboration the courts have to seek if it is found that such trap witnesses have interest in the success of the trap and are to be treated as interested witnesses. Corroboration of every detail would not be necessary. The corroboration has to be by an independent testimony confirming in some material particulars not only that the crime was committed but also that the accused person had done so. It is not necessary to have corroboration of all circumstances of the case or every detail of the crime. It would be sufficient if there was corroboration as to material circumstances of the crime and identity of the accused in relation to crime. [See Major E.G.Barsay Versus State of Bombay, AIR 1961 SC 1762]. In this case only, it was held that the trap witness is not an approver but he certainly is an interested witness. He, thus, could be equated with a partisan witness and, thus, it may not be permissible to rely upon his evidence without corroboration. No doubt, his evidence is not to be treated as a tainted one. It would only make a difference in the degree of corroboration required rather Criminal Appeal No. 1619-SB of 2003 9 than necessity for it. The Courts may reject the evidence of a trap witness in regard to some events either because that part of the evidence is not consistent with the other parts of his evidence or with the evidence of some disinterested witnesses, but the Court can accept the evidence given by a witness in regard to other events when the version is corroborated on all material particulars by the evidence of other disinterested witnesses. These then are the parameters, which may guide us to assess the worth and reliability of witnesses in this case to see if the prosecution had succeeded in proving the offence against the appellant or not.
The complainant in this case was examined as first prosecution witness. Counsel for the appellant has attacked his version on the ground of he being of bad antecedents and a man having criminal cases registered against him. PW-1 has made no efforts to hide his antecedents and himself has disclosed that he was engaged in Satta business. He, however, stated to have left the said business 3-4 months prior to the present incident. PW-1 has blamed the appellant for collecting monthly from him for not interfering in his business. Once he discontinued Satta business, the witness as per his version, was called by the appellant and questioned as to why he had not paid monthly to the appellant. The witness was challenged under Section 160 IPC and in another case under the Gambling Act, which he states was at the instance of the appellant. Having given this background, PW-1 has stated that he was called to the CIA Staff and asked to pay sum of Rs.8,000/-. The appellant threatened him to challan further if this demand was not met. As per PW-1, he paid Criminal Appeal No. 1619-SB of 2003 10 sum of Rs.5,000/- on 12.8.2002 and prayed for time to pay the remaining amount of Rs.3,000/-. The witness shared this demand with his friend Pardeep, who advised him to contact the Vigilance Bureau, which they did on 2.9.2002. The trap was then laid and ultimately the witness handed over sum of Rs.3,000/- when the appellant was statedly caught by the Vigilance party.
The version of this witness is attacked by the counsel on the basis of what has emerged during his cross-examination. This witness was questioned about his version that he was working as a Masha Khor in Subzi Mandi. He conceded that he had not been allotted any working place by the Market Committee. He, however, denied the suggestion that he was not working as a fruit or vegetable seller or as a Masha Khor. It was accordingly suggested that he was still engaged in Satta business from the last 15-16 years. The witness conceded that he was challaned 8-9 times in different criminal cases under the Gambling Act, Arms Act and under Sections 302, 307, 323, 324 IPC. Still, he denied the suggestion that he was engaged in criminal activities from the very beginning. The witness otherwise conceded that he had been challaned under the Gambling Act recently. He further conceded that in the year 1990, he was declared proclaimed offender and that later he was arrested and convicted. PW-1 also conceded that he was convicted for stabbing one Jatinder and was sentenced for three months rigorous imprisonment. He, however, failed to recollect if he was arrested in the gambling case in the year 1999 by Sub Inspector Same Singh. Simultaneously, the witness conceded that he was arrested by Jai Criminal Appeal No. 1619-SB of 2003 11 Singh on 4.8.2002 under the Gambling Act. This, as per the witness, was at the instance of the appellant. The witness conceded that the appellant at that stage was posted in CIA Staff Rohtak. When further questioned, the witness expressed his ignorance if during this period, the appellant was posted as District Inspector, Rohtak. On 23.6.2002, the witness was arrested while quarreling with one Kanwal Singh. When he attributed this also to on to the appellant, then he was questioned by the counsel if he had made any complaint against the appellant in this regard. The witness conceded that he had not made any complaint.
Further cross-examination of this witness revealed that Pardeep, the shadow witness, was his friend. When he did not answer certain details of this witness, he was put a suggestion that Pardeep was also engaged in Satta business, which he denied. He also denied that Pardeep was anti social person. The defence then suggested to the witness that pardeep was a native of Dighal and came to Rohtak for only anti social activities. The application to the Vigilance, in fact, has been scribed by Pardeep, though statedly at the instance of PW-1. In this application, the fact that PW-1 had already paid sum of Rs.5,000/- was not recorded. This aspect was also not found mentioned in the statement of the witness recorded under Section 161 Cr.P.C. The witness further conceded that he had never made any complaint against the appellant for taking this Rs.5,000/- from him. In his application Ex.PA, PW-1 never mentioned that he was harassed by the appellant. This witness was otherwise second standard pass. He conceded that he had not recorded the Criminal Appeal No. 1619-SB of 2003 12 number of the currency notes in his statement made under Section 161 Cr.P.C. However, when confronted, the number of the currency notes were found recorded in his statement Ex.PA. In his previous statement, this witness had even not stated about the demand as now deposed before the Court. As per PW-1, the appellant was sitting in CIA Staff and he had asked him if he had brought the money and on his demand, he paid the money to him, which was put in the drawer by the appellant. None of these facts were found recorded in his previous statement. The witness, however, denied the suggestion that there was no demand and no payment of money. His version now given before the Court that on seeing the vigilance staff, the appellant got scared was also not found recorded in his previous statement with which this witness was confronted. Even the different washes of currency notes etc. as deposed by this witness before the court were not found recorded in the previous statement made by the witness. The defence even suggested to this witness that he wanted the appellant to help the witness in the criminal cases registered and pending against him and on his refusal, he had involved him in this false case.
This being the state of evidence of the complainant, it is now to be seen whether it will be safe to rely upon his testimony without corroboration. The corroboration of his testimony by the official witnesses is only in regard to recovery. Whether there was demand by the appellant or whether the money was accepted after demand apparently does not find support from any evidence. Even shadow witness Pardeep (PW-2) would not lend support to the Criminal Appeal No. 1619-SB of 2003 13 version of the complainant. PW-2 was deputed as a shadow witness and was asked to give signal by moving his hand as soon as the money was accepted by the appellant. He accompanied by PW-1 had reached the office of CIA Staff, Rohtak. The police team had waited outside the gate. PW-2 positioned himself in a chowk inside the office of CIA Staff. PW-1 complainant went inside the room of the appellant. Thereafter, what all transpired between the complainant and the appellant was inside the room, which was not seen by PW-2. This aspect would be clear from his version when he says that PW-1 came out of the room, moved his hand on his head and in turn he gave signal to the police party.
There is also a serious contradiction between the place from where the money was recovered as stated by PW-1 and PW-2 respectively. As per PW-2, the DSP asked the appellant about the money, whereupon he handed over the same to the DSP. As per PW- 2, the money was taken by the appellant from over the drawer. The witness was asked to clarify this aspect and it is on record that he replied that the money was between the table cloth and the drawer and was not inside the drawer of the table. This is in contrast to the version given by PW-1, who has deposed that the appellant had kept the money inside the drawer from where he took it out and gave it to the DSP. The version of PW-2 in this regard is different and came on record even on clarification asked by the Court. Though this witness was statedly present outside the place where this money was handed over, yet he could not tell the details about the description of the place while under cross-examination. As per this witness, CIA Staff Criminal Appeal No. 1619-SB of 2003 14 opens on the main road and then another gate is inside, whereafter there is a court yard. First there is a room, then a verandah and then a chowk. PW-2 could not tell about the direction of entrance room. He could not recollect whether the entrance had a door or not. He also could not tell if there was one or more room. He even could not tell length and breadth of the room. As per this witness, DSP and Naib Tehsildar first entered the room of the appellant and then appellant was brought out in the verandah. The proceedings were conducted in the verandah.
From the version of this witness, one thing is clear that he has neither seen the money being paid to the appellant nor he is witness to the demand. Thus, complainant alone is a witness, who has testified about the demand and the acceptance of illegal gratification. The antecedents and background of PW-1 could make him of a questionable characteristics and would certainly put the court to a caution to analyse his version rather minutely. This witness concededly was involved in Satta business for over 15-16 years. He himself stated that he used to pay monthly to the appellant. He had been involved in large number of criminal cases. Recently before this incident, he was involved in case of gambling and under Section 160 IPC. He is concededly a witness who has arranged this trap. His character is shady and it would be difficult to accept his word that the appellant had asked him to pay monthly as is stated by him. On this aspect, except for this version, there is no independent evidence available. What to talk of any independent evidence, there is no evidence of any type available in this regard. As observed that no Criminal Appeal No. 1619-SB of 2003 15 specific canon of generalisation may be possible and each case would have its own features and each witness his own peculiarities. In this case, PW-1 has peculiarity and is shown to have contradicted himself on various aspects of the case, when he was questioned about his previous statement. As held in Sat Paul's case (supra), minor discrepancies and small improbabilities in the testimony of witnesses assumes importance in case the witnesses are manifestly disreputable persons. The court held that corroboration of such interested witness from independent source is essential where witnesses have poor moral fibre and bad antecedents and have a motive to remove the accused from their way. In a way, possibility is there that this witness took this action to remove the appellant from his way, so that he could conduct a Satta business unhindered. This witness certainly can be relied upon only if his version is corroborated by some evidence. I find that version of PW-1 has remained uncorroborated. Even the shadow witness had not given any evidence of demand having been raised by the appellant. Thus, it would be a case where mere proof of receipt of money by the appellant is to an extent established and in the absence of proof of demand, it may not be possible to hold that the money was accepted as illegal gratification. This is further to be viewed in the background that PW-1 had already paid sum of Rs.5,000/- and decided to arrange this trap while he was paying the remaining amount. Why did he decides to pay this amount before approaching the Vigilance to catch the appellant? May be that there is something more than PW-1 has disclosed. From the state of evidence, as noted above, it is not Criminal Appeal No. 1619-SB of 2003 16 possible to conclude definitely that prosecution has succeeded in proving the allegations against the appellant beyond a shadow of reasonable doubt. The version given by PW-1 is discrepant and otherwise also is not corroborated by any other evidence either in regard to acceptance or demand. Accordingly, it will not be safe to maintain this conviction, especially when the evidence of demand is not corroborated by any evidence whatsoever. PW-1 being interested in the success of the trap made at his instance can be believed only if there is some corroboration to his version, which is found wanting.
Accordingly, the conviction of the appellant as recorded by the trial Court cannot be sustained. The same is set-aside. The appeal is allowed and the appellant is relieved of the consequences of this charge.
January 30, 2013 ( RANJIT SINGH ) rts JUDGE