Punjab-Haryana High Court
Jagdev Singh And Another vs Central Bureau Of Investigation on 22 February, 2011
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 263-SB of 1997
Date of Decision : February 22, 2011
Jagdev Singh and another
....Appellants
Versus
Central Bureau of Investigation
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. H.S.Riar, Senior Advocate with
Mr. C.L.Pawar, Advocate
for the appellants.
Mr. Ajay Kaushik, Advocate
for the C.B.I.
T.P.S. MANN, J.
The instant appeal is directed against the judgment and order dated 22.3.1997 passed by Special Judge, Patiala, whereby the appellants were convicted under Section 120-B IPC and Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced as under:-
Under Section 120-B IPC. Rigorous imprisonment for six months and to pay fine of Rs.500/-
each and in default of payment of fine, to further undergo rigorous imprisonment for one month;Crl. Appeal No. 263-SB of 1997 -2-
Under Section 7 of the Rigorous imprisonment for one Prevention of Corruption year and to pay fine of Rs.1,000/-
Act. each and in default of payment of
fine, to further undergo rigorous
imprisonment for two months; and
Under Section 13 (1) (d) Rigorous imprisonment for two
read with Section 13 (2) years and to pay fine of Rs.2,000/-
of the Prevention of each and in default of payment of
Corruption Act. fine, to further undergo rigorous
imprisonment for two months.
All the sentences were ordered to run concurrently. According to the prosecution, the duty of appellant Jagdev Singh was to stock the consignment, to check the weight of the bags of rice and condition of the gunny bags while working as A.G.-I (Depot) on 10.5.1993 whereas appellant Amarjit Singh was to examine the samples drawn from the consignment of the millers while working as Technical Assistant-I at FCI at Bholath on 6.7.1992. Bhola Nath complainant was the General Power of Attorney of his brother Chaman Lal, the proprietor of M/s Manpreet Rice Mill, Begowal, District Kapurthala. The complainant used to purchase the paddy from the Commission Agents for shelling in the rice mill and after shelling, the specified share of the rice used to be delivered to the FCI and the bags of rice were to be dumped at FCI godown at Bholath.
Further case of the prosecution was that appellants Jagdev Singh and Amarjit Singh used to get Rs.360/- and Rs.500/- per truck, respectively as illegal gratification. On 15.12.1994, both the appellants Crl. Appeal No. 263-SB of 1997 -3- demanded Rs.5,000/- each as illegal gratification from the complainant for accepting the consignment of 250 bags of rice brought in two trucks at FCI, FSD, Bholath including the arrears. Shamsher Singh, driver of the truck was with the complainant when the appellants demanded the illegal gratification. The appellants refused to accept the consignment till illegal gratification was paid to them. By making false promise to the appellants that he would arrange the money within three hours, the complainant accompanied by Shamsher Singh went to the office of Vigilance Bureau at Kapurthala where he narrated the entire occurrence to DSP Harish Kumar regarding the demand raised by the appellants by making statement Ex. PW1/1. The complainant produced amount of Rs.10,000/- in the shape of 100 currency notes of the denomination of Rs.100/- each before DSP Harish Kumar, who applied phenolphthalein powder to the same. Their numbers were noted in two memos Ex. PW1/2 and Ex. PW1/3, which were attested by the witnesses. The currency notes of Rs.5,000/- mentioned in memo. Ex.PW1/2 were meant to be given to appellant Jagdev Singh on his demand and those mentioned in memo. Ex. PW1/3 to appellant Amarjit Singh on his demand. Before these tainted currency notes were entrusted to the complainant, DSP Harish Kumar satisfied himself that the complainant had no other money with him. Demonstration was given before the complainant and Shamsher Singh. A glass of water was brought in which sodium carbonate was mixed. The colour did not change but Crl. Appeal No. 263-SB of 1997 -4- when phenolphthalein powder was mixed in the solution, the colour turned into pink. The solution was destroyed. DSP Harish Kumar washed his hands with soap. Demonstration memo. Ex. PW1/4 was prepared. DSP Harish Kumar gave instructions to the complainant to hand over the tainted currency notes to the appellants on their demand and Shamsher Singh was instructed to given signal while acting as a shadow witness. Rajiv Kumar, Clerk in the PWD(B&R) Department was joined in the raiding party. The purpose of raid was explained to him. After making endorsement Ex. PW10/1 on statement Ex. PW1/1, DSP Harish Kumar sent the same to Police Station Bholath where FIR Ex.PW10/2 was registered against the appellants. Thereafter, the raiding party reached the gate of the FCI godown at Bholath and stood there whereas the complainant and Shamsher Singh went inside the FCI godown. Shamsher Singh stood at some distance whereas the complainant entered the room where both the appellants were sitting. Both the appellants asked the complainant as to whether he had done their work. The complainant replied in the positive and handed over the currency notes of Rs.5,000/- to appellant Jagdev Singh on his demand, who put the same in the pocket of his jacket. Thereafter, the complainant paid Rs.5,000/- to appellant Amarjit Singh, who after accepting the same also put it in the pocket of his pant. Shamsher Singh gave the appointed signal to the raiding party. DSP Harish Kumar and others entered the room where both the appellants were found sitting on Crl. Appeal No. 263-SB of 1997 -5- chairs on their separate tables whereas the complainant was sitting in front of the table of appellant Amarjit Singh. DSP Harish Kumar disclosed his identity to the appellants. The wrists of both the appellants were captured. First of all, the hands of appellant Jagdev Singh were got washed in a solution prepared in the glass containing water and sodium carbonate, the colour whereof turned pink. The solution was sealed in nip Ex. P1 and was seized vide seizure memo. Ex. PW1/5, which was attested by the witnesses. Thereafter, the DSP conducted the search of appellant Jagdev Singh and from the inner pocket of his jacket, 50 currency notes of the denomination of Rs.100/- each were recovered. The numbers of these currency notes were compared, which tallied. The currency notes were taken into possession vide recovery memo Ex. PW1/6, which was attested by the witnesses. Further personal search of appellant Jagdev Singh led to recovery of Rs.4,000/- in cash and a wrist watch, which were taken into possession vide memo. Ex. PW1/11. The inner pocket of the jacket was washed in a solution of water and sodium, the colour of which turned pink. It was sealed in nip Ex.PW2/1, which was seized vide seizure memo. Ex. PW1/7. The jacket Ex. P2 was also taken into possession. Similarly, the hands of appellant Amarjit Singh were got washed in the solution of water and sodium carbonate, the colour of which turned pink. The solution was sealed in nip Ex. P3, which was seized vide seizure memo. Ex. PW1/9. It was attested by the witnesses. The search of appellant Crl. Appeal No. 263-SB of 1997 -6- Amarjit Singh led to recovery of Rs. 5,000/- from the right pocket of his pant. Their numbers were also tallied. The currency notes were seized vide seizure memo. Ex. PW1/8 which was also attested by the witnesses. Rs.300/- in cash and identity card were recovered from the personal search of appellant Amarjit Singh which were taken into possession vide seizure memo. Ex. PW1/12. The right pocket of the pant of appellant Amarjit Singh was dipped in the solution of water and sodium. The solution turned pink. It was sealed in nip Ex. P4, which was taken into possession vide recovery memo. Ex.PW1/10. DSP Harish Kumar prepared site plan Ex.PW10/3 of the place of recovery. The attendance registers Exs.PW4/6 and PW4/7 were taken into possession. Inward and outward registers were also taken into possession from Bakshish Singh, Chowkidar, which contained entries Exs. PW9/1 PW9/2 regarding the entry of two trucks. Both the appellants were brought to Police Station Bholath where they were lodged and the case property was also deposited there.
As both the appellants were the employees of FCI, the investigation of the case was handed over to the CBI. SI R.A.Yadav conducted the further investigation after the CBI registered its own FIR Ex. PW8/1. He seized the documents and recorded the statements of the witnesses. The sanction orders Exs. PW5/1 and PW5/2 were obtained from the competent authority for the prosecution of the appellants in this case.Crl. Appeal No. 263-SB of 1997 -7-
Upon completion of investigation, final report under Section 173 Cr.P.C. was submitted in the Court of Special Judge, where charges under Section 120-B IPC and Sections 7 and 13(1)(d) read with Section 13(2) of the Act were framed against the appellants, to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 complainant Bhola Nath, PW2 Shamsher Singh, PW3 Rajiv Kumar, Clerk, PW4 Sant Ram, RA-1, FCI, PW5 R.P.Sood, Deputy Manager (Vigilance), PW6 Constable Balwinder Singh, PW7 Constable Krishan Lal, PW8 R.A.Yadav, SI, CBI, PW9 Bakshish Singh, Watchman, PW10 DSP Harish Kumar, PW11 HC Sikatar Singh, PW12 SI Darshan Singh and PW13 Chandra Upasani, Assistant Manager, FCI.
When examined under Section 313 Cr.P.C., appellant Jagdev Singh stated that on 15.2.1994 he came to FCI godown at Bholath at 11.30 a.m. after collecting the receipts regarding the payment of freight from the railway office, Kapurthala. He received the message that Harish Kumar DSP was requiring his presence in Police Station Bholath in connection with some complaint against him. He reached Police Station at Bholath at 1.30 p.m. Harish Kumar DSP told him that he was not accepting the rice of the mill of Bhola Nath to which he replied that it was not his duty to accept the rice. He also told Harish Kumar DSP that rice of Bhola Nath may not be according to the prescribed standard. Therefore, the rice might not have been accepted. Crl. Appeal No. 263-SB of 1997 -8- Jagdev Singh further pleaded that Bhola Nath was tout of the police. The DSP felt offended against him (appellant Jagdev Singh). He was implicated in this false case at the instance of Bhola Nath. The FCI officials observed strike for 2/3 days in protest against this false case. Shamsher Singh was driver on the truck owned by Manpreet Rice Mill, Begowal. He was a false witness. Appellant Jagdev Singh further stated that Bhola Nath had grudge against him as earlier to 15.12.1994 he had rejected 2/3 consignments of his mill. This case was foisted against him by Bhola Nath on account of said grudge.
Appellant Amarjit Singh stated that the case was false. The prosecution witnesses deposed falsely against him. On 15.12.1994 a Constable came to him at about 12 noon. It was told to him that DSP (Vigilance) required his presence at Bholath in connection with an enquiry into the complaint against him. He went to Police Station Bholath. The DSP threatened him that he must accept the rice of Bhola Nath. He (appellant Amarjit Singh) said to DSP that the rice of Bhola Nath would be accepted if the same was according to the prescribed standard. He also told the DSP that he had nothing to do with the acceptance of the levy rice. Bhola Nath was tout of the police. He was also a mischievous person. The DSP foisted this case against him at the instance of Bhola Nath. The FCI officials had also observed strike for 2/3 days for his implication in this false case.
In defence, both the appellants examined DWI Gian Chand, Crl. Appeal No. 263-SB of 1997 -9- AG-I. Exs. DY, DZ, DA, DB and DX were also tendered in evidence.
After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court believed the prosecution version and convicted and sentenced the appellants, as mentioned above.
I had heard learned counsel for the parties and perused the evidence with their able assistance.
Learned counsel for the appellants had submitted that though PW Shamsher Singh had been working as a driver with the complainant yet the two trucks belonging to the complainant and carrying the rice were driven by Charan Singh and Gurdeep Singh. That established that Shamsher Singh was not with the complainant on 15.12.1994 when the alleged demand by the appellants of Rs. 5,000/-
each as illegal gratification was made from the complainant.
It is true that in the entries Ex. PW9/1 and PW9/2 proved by PW9 Bakshish Singh, Watchman, the two trucks carrying the rice and belonging to the complainant were shown to have been driven by Charan Singh and Gurdeep Singh whereas PW Shamsher Singh was not shown to be driving any of the two trucks. However, that by itself is not sufficient to dislodge the presence of PW Shamsher Singh at the time of demand and acceptance of illegal gratification by the appellants. Mere fact that PW Shamsher Singh was employed as a driver by the Crl. Appeal No. 263-SB of 1997 -10- complainant is not sufficient to hold that even at the relevant time, he would be driving one of the two trucks for carrying the rice to the FCI godown. At the relevant occasion, he had simply accompanied complainant Bhola Nath and in his presence the appellants had demanded and accepted the illegal gratification from the complainant.
Learned counsel for the appellants while referring to the testimony of PW2 Shamsher Singh had submitted that he had not witnessed the demand said to have been made by the appellants from PW1 Bhola Nath for the illegal gratification. Rather, according to him, no conversation had taken place between Bhola Nath and the appellants in his presence. Therefore, the testimony of PW1 Bhola Nath that he had handed over the amount of illegal gratification on being demanded by the appellants remained uncorroborated.
PW1 Bhola Nath had testified that he alone had entered the room where the appellants were sitting. Both of them had asked him as to whether he had done their work, implying thereby as to whether he had brought the money to be paid to them. He replied that he had brought the money and, accordingly, handed over the amount of Rs.5,000/- to Jagdev Singh appellant on his demand and another sum of Rs.5,000/- to Amarjit Singh appellant on his demand. He also stated that at that time, Shamsher Singh was at a distance of about 150 yards from the room in which he had passed on the tainted money to the appellants. From such a distance, Shamsher Singh could only see the Crl. Appeal No. 263-SB of 1997 -11- complainant with the appellants but could not have heard any conversation which had taken place between the complainant and the appellants. This fact explained the fact that PW2 Shamsher Singh would not have heard the actual conversation which took place between the complainant and the appellants. Only after he saw the acceptance of the tainted money by the appellants that he gave the signal to the raiding party. It may also be mentioned here that PW2 Shamsher Singh had fully corroborated the testimony of PW1 Bhola Nath regarding the initial demand by the appellants of being paid Rs.5,000/- each before accepting the consignment of 250 bags of rice to be brought in by the complainant in two trucks.
The defence also tried to belittle the testimony of PW2 Shamsher Singh on the ground that he was not an independent witness rather, he used to work for the complainant as a driver of his truck.
Merely because PW2 Shamsher Singh used to drive the truck owned by the complainant was not sufficient to reject his testimony. Rather, that would explain as to why PW1 Bhola Nath reposed confidence in him as after the appellants had demanded the illegal gratification from him in the presence of Shamsher Singh, he had taken him along to the office of the Vigilance Bureau at Kapurthala where he made a statement on the basis of which FIR Ex. PW10/2 was registered. On the other hand, PW1 Bhola Nath would not have felt comfortable in accompanying a stranger to the office of the appellants as Crl. Appeal No. 263-SB of 1997 -12- such a stranger could have leaked the information regarding conducting of raid for apprehending the appellants upon acceptance of the bribe money.
Learned counsel for the appellants had submitted that PW3 Rajiv Kumar, who was associated with the raiding party for overseeing the recovery, had not supported the case of the prosecution. Rather, he had stated that when both the appellants were apprehended by the DSP, he left for urinating and when he returned in ten minutes' time, he noticed that the DSP had already conducted the personal search of both the appellants and the tainted money was lying on the table.
Apparently, PW3 Rajiv Kumar had been won over by the appellants and, therefore, did not support the prosecution case regarding the recovery of the tainted money from the personal search of the appellants. Memo Ex. PW1/6 in respect of recovery of tainted notes from Jagdev Singh appellant and Ex. PW1/8 in respect of Amarjit Singh appellant wherein it was clearly mentioned that the tainted currency notes were recovered from their jacket and shirt, respectively by DSP Harish Kumar bore the signatures of PW3 Rajiv Kumar. In his examination-in-chief, he stated that the recovery memos Ex. PW1/6 and PW1/8 were attested by him. Therefore, the statement made by him during his cross-examination by the Public Prosecutor that the personal search of the appellants was not conducted in his presence, cannot be accepted. Even if his testimony is left out of consideration, still the Crl. Appeal No. 263-SB of 1997 -13- prosecution had led sufficient evidence to establish that after the demand and acceptance of the bribe money by the appellants, DSP Harish Kumar alongwith others members of the raiding party had entered the room where both the appellants were secured from their wrists. The personal search of both the appellants led to recovery of the tainted money from them. The hand wash of both the appellants had resulted in the clear solution turning into pink. Similarly, the inner pocket of the jacket worn by appellant Jagdev Singh as well as the right pocket of the pant of Amarjit Singh appellant were dipped in the solution of white and sodium carbonate and each time the solution turned pink. The aforementioned facts had surfaced in the testimonies of PW1 Bhola Nath, PW2 Shamsher Singh and PW10 DSP Harish Kumar. The aforementioned evidence when accepted would be sufficient to hold that the appellants had received the illegal gratification and after receiving the same, placed the same in their wearing apparels from where they were recovered.
Another fact which was highlighted by the learned defence counsel was the alleged recovery of tainted currency notes from Jagdev Singh appellant, which were earlier mentioned in the entrustment memo prepared in respect of Amarjit Singh appellant and vice-versa. Therefore, no reliance be placed upon the prosecution case to hold that the appellants had demanded and accepted the illegal gratification.
It is true that while preparing entrustment memo.
Crl. Appeal No. 263-SB of 1997 -14-Ex.PW1/2, the details of 50 currency notes of the denomination of Rs.50/-, which were meant for Jagdev Singh appellant, were mentioned while in the entrustment memo. Ex. PW1/3, the details of notes meant for Amarjit Singh appellant were mentioned. However, the notes mentioned in the entrustment memo. Ex. PW1/3 were recovered from the jacket worn by Jagdev Singh appellant while the currency notes mentioned in the entrustment memo. Ex. PW1/2 were recovered from the pant of Amarjit Singh appellant. It appears that by mistake PW1 Bhola Nath had handed over the tainted currency notes meant for Jagdev Singh appellant to Amarjit Singh appellant and vice-versa. However, that would not be sufficient for disbelieving the prosecution case.
Certain discrepancies and contradictions were pointed out by the defence in the testimonies of witnesses of the prosecution. These discrepancies were also pointed out before the trial Court and, thus, noticed in para 33 of the impugned judgment. I have considered all the so called discrepancies and the contradictions and find that they did not go to the root of the case. Infact, with the passage of time, such like contradictions and discrepancies are bound to appear in the testimonies of truthful witnesses.
As regards the defence plea taken by the appellants during their examination under Section 313 Cr.P.C., it has to be noticed that there is no material available on the file which could indicate that PW1 Bhola Nath was having nexus with PW10 DSP Harish Kumar. Crl. Appeal No. 263-SB of 1997 -15- Therefore, it cannot be believed that DSP Harish Kumar would falsely implicate the appellants. As regards PW1 Bhola Nath, the defence had brought on record the copy of the FIR Ex. DX, which had been registered against his mill under Section 406 IPC at the instance of the District Food and Supplies Officer, Phagwara. Mere registration of FIR was not sufficient to hold that the allegations levelled therein had been found to be correct.
Learned counsel for the appellants had finally submitted that the appellants have been facing the agony of criminal prosecution for the last sixteen years. None of them was a previous convict. Therefore, their substantive sentences of imprisonment be reduced to that already undergone by them.
The appellants had been found guilty for committing the offences under Section 120-B IPC and Sections 7 and 13(1)(d) read with Section 13(2) of the Act. The offences under Section 13(1)(d) read with Section 13(2) of the Act require imposition of minimum sentence of one year. The appellants have been sentenced to undergo imprisonment for two years on the said count.
Taking into consideration the totality of the circumstances, the Court is of the view that ends of justice would be amply met if the substantive sentence of the appellants for the aforementioned offences under Section 13(1)(d) read with Section 13(2) of the Act is reduced from two years to one year.
Crl. Appeal No. 263-SB of 1997 -16-
Resultantly, the conviction of the appellants under Section 120-B IPC and Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, as recorded by the trial Court, is upheld. The substantive sentence of imprisonment for two years imposed upon the appellants under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is reduced to rigorous imprisonment for one year each. The sentence of fine alongwith its default clause imposed by the trial Court for the aforementioned offence is maintained. The sentences of imprisonment and fine alongwith their default clauses imposed upon the appellants under Section 120-B IPC and Section 7 of the Prevention of Corruption Act are also maintained. The substantive sentences of imprisonment shall run concurrently.
The appeal is, accordingly, disposed of.
( T.P.S. MANN )
February 22, 2011 JUDGE
ajay-1