Punjab-Haryana High Court
Jagsir Singh vs State Of Punjab on 29 October, 2010
Author: A.N.Jindal
Bench: A.N.Jindal
Criminal Appeal No.910-SB of 2004(O&M) [1]
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH
...
Criminal Appeal No.910-SB of 2004(O&M) Decided on : October 29, 2010 Jagsir Singh ... Petitioner VERSUS State of Punjab ... Respondent CORAM :
HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Manmohan Singh, Senior Advocate assisted by Mr.M.P.Gupta, Advocate for the petitioner.
Mr.Amit Chaudhary, Assistant Advocate General, Punjab. A.N.JINDAL, J.-
ASI Jagsir Singh was prosecuted for receiving a sum of Rs.1050/- on account of illegal gratification from complainant - Iqbal Singh (herein referred as `the complainant') as a motive or reward for release of his nephew Rajinder Singh and his brother Gurcharan Singh. Consequently, he was convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- for the aforesaid offences.
The facts necessary for disposal of the instant appeal are that on 1.6.1998 the complainant (PW5) along his nephew Rajinder Singh was coming from village Balluana to Bathinda by bus, in which Kirpal Singh s/o Criminal Appeal No.910-SB of 2004(O&M) [2] Arjan Singh and Kamal Yadwinder Singh were also travelling. Kamal Yadwinder Singh was accompanied by his colleagues also. On account of a quarrel, the complainant as well as his nephew Rajinder Singh were thrashed by Kirpal Singh and Kamal Yadwinder Singh in the bus, about which the police post Balluana was informed, where the accused was posted as in-charge. Instead of arresting Kirpal Singh and Kamal Yadwinder Singh, the accused arrested Rajinder Singh and complainant's brother Gurcharan Singh and they were detained in the police station. On coming to know about their detention, he visited the police station and enquired from the accused about their detention. However, the accused demanded a sum of Rs.850/- for himself and Rs.200/- for the other employees for release of his brother and nephew, Gurcharan Singh and Rajinder Singh, respectively, which he paid to the accused and the accused released them. However, he did not proceed against Kirpal Singh and Kamal Yadwinder Singh, rather they were proceeded against under Section 107/151 of the Code of Criminal Procedure, 1973. Feeling annoyed, the complainant moved an application (Ex.PE) along with an affidavit informing the Senior Superintendent of Police about the receiving of illegal gratification from him. In turn, Senior Superintendent of Police sought enquiry from the Deputy Superintendent of Police and later from District Magistrate, Bathinda, who got conducted the enquiry through Gurtej Singh, Sub Divisional Magistrate, Bathinda. On the enquiry report (Ex.PD), the case was got registered against the accused and Deputy Superintendent of Police Inderjeet Singh handled the investigation, who visited the spot, prepared Criminal Appeal No.910-SB of 2004(O&M) [3] rough-site plan of the place, recorded the statements of the witnesses and on completion of the investigation, submitted report under Section 173 CrPC to the Court.
The accused was charged accordingly, to which he pleaded not guilty and opted to contest.
In order to substantiate the charges, the prosecution examined Head Constable Harbir Singh (PW1) in order to prove the sanction (Ex.PA) accorded by the-then Senior Superintendent of Police, Bathinda for launching prosecution against the accused. Constable Gurmit Singh (PW2) has proved the letter Ex.PB, vide which the District Magistrate, Bathinda was directed to get the enquiry conducted into the allegations levelled by the complainant. Ajit Singh (PW3), Junior Assistant in the office of District Magistrate, Bathinda has proved the letter Ex.PC authored by District Magistrate Bathinda, directing the prosecution of the accused Jagsir Singh. Gurjit Kaur (PW4), steno to the then Sub Divisional Magistrate Bathinda has proved the enquiry report Ex.PD by identifying the signatures of the SDM; Iqbal Singh - the complainant (PW5) has proved the complaint Ex.PE as well as his affidavit Ex.PF and also stood by his version that he had paid a sum of Rs.1050/- for release of Gurcharan Singh and Rajinder Singh to the accused; Gurcharan Singh (PW6) is the victim of alleged illegal detention in police post Balluana at the instance of the accused; ASI Gurdev Singh (PW7) has proved the copy of the appointment order Ex.PG of the accused and his posting order Ex.PH at police post Balluana; Jaspreet Singh, Deputy Superintendent of Police (PW8) is the Investigating Criminal Appeal No.910-SB of 2004(O&M) [4] Officer.
In his statement under Section 313 of the Code of Criminal Procedure, 1973, the accused denied all the incriminating circumstances appearing against him and pleaded his false implication. He further explained as under:-
"I had challaned Iqbal Singh and his brother and his nephew u/s 107/151 Cr.P.C. as there was apprehension of breach of peace, due to their quarrel with Kirpal Singh and party. I had also challaned Kirpal Singh and his party u/s 107/151 Cr.P.C., as I apprehended breach of peace. Iqbal Singh wanted me to challan Kirpal Singh party only and wanted that they should be spared but since the parties were out to indulge in breaking of peace, so in order to maintain the peace in the area, I challaned both the parties and due to that grudge, Iqbal Singh had lodged a false complainant against me and his party persons had wrongly supported him. Iqbal Singh is a Member of Communist Party and under the pressure of Communist Party, this case has been falsely planted upon me. Neither I demanded, nor I received any amount from Iqbal Singh, either for myself or for any other person. I am innocent."
No evidence was led in defence.
There is no denying a fact that the accused was posted as Assistant Sub Inspector in Punjab Police and was working as In-charge, Criminal Appeal No.910-SB of 2004(O&M) [5] Police Post Balluana since prior to 1.6.1998. The case was registered against him on the basis of an application dated 4.6.1998 Ex.PE filed by the complainant against the accused, vide which allegations for receiving illegal gratification of Rs.1050/- as a motive or reward for releasing Rajinder Singh and Gurcharan Singh were levelled. The translation of the relevant extract of the application is reproduced as under:-
"To SSP, Bathinda Subject: for taking legal action against accused Kirpal Singh son of Arjun Singh, Kamal Yadwinder Singh son of Kirpal Singh residents of Chughe Kalan, Police Post Baluana for providing justice to me.
Sir, the applicant submits as under:-
1. That I Iqbal Singh son of Chand Singh am a resident of Chughe Kalan, Police Post Balluana, District Bathinda.
2. That on 1.6.1998, I and my nephew were going through bus.
Then, the above said Kirpal Singh son of Arjun Singh, and Kamal Yadwinder Singh son of Kirpal Singh beat us. Kamal Yadwinder Singh is a student of the college and some boys were with him. They threatened us also.
3. That after beating, I informed at Police Post Balluana, but ASI Jagsir Singh of Police Post instead of arresting them, directed my nephew Rajinder Singh and my brother Gurcharan Singh to sit in the Police station. When, we Criminal Appeal No.910-SB of 2004(O&M) [6] objected that we are the complainants and why he has directed us to sit, then Jagsir Singh demanded Rs.850/- from us. Due to fear, I paid this amount and also a sum of Rs.200/- for his other employees. Then, he released my brother and my nephew, but simultaneously, he initiated proceedings under Section 107/151 CrPC against us.
4. That he did not take any action against the persons, who gave beatings to us. Since Kirpal Singh has a licensed rifle, we have full danger to our lives and property.
So, by submitting this application, it is requested that justice may be given to us and legal action be taken against the accused Kirpal Singh and Kamal Yadwinder Singh residents of Chughe Kalan.
Thanking you, Yours faithfully, LTI Iqbal Singh"
On the basis of the afore-quoted complaint, First Information Report Ex.P1 was registered. The accused had been charged for the offence under Section 7 read with Section 13 of the Prevention of Corruption Act, 1988 (for brevity `the Act'). The necessary ingredients for constituting the offence under Section 7 of the Act are as under:-
(1)that the accused at the time of the offence was, or expected to be, a public servant, Criminal Appeal No.910-SB of 2004(O&M) [7] (2)that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification, (3)that such gratification was not a legal remuneration due to him, and (4)that he accepted the gratification in question as a motive or reward, for -
(a) doing or forbearing to do an official act; or
(b) showing or forbearing to show favour or disfavour to someone in the exercise of his official functions; or
(c) rendering, or attempting to render, any service or disservice to someone, with the Central or any State Government or Parliament or the Legislature of any State, or with any public servant.
The crux of the aforesaid ingredients is that a public servant, if obtains illegal gratification for showing or forbearing to show favour or disfavour in the exercise of his official function, then he could be penalised under Section 13(1)(d) of the Act.
If the application Ex.P1 is read in depth, then it does not indicate as to when the bribe money was given to the accused, but after going through the contents of the application as a whole, it appears that the accused had received the money on 4.6.1998 and after that he released them, but at the same time, he proceeded against them under Sections 107/151 CrPC. This very fact situation could be imported from the affidavit Criminal Appeal No.910-SB of 2004(O&M) [8] dated 4.6.1998 Ex.PF, filed by the complainant along with application Ex.PE, but the complainant appears to have made major improvements while appearing in the witness box as PW5. He has stated that after he and his nephew Rajinder Singh were beaten by Kirpal Singh and Kamal Yadwinder Singh, they moved the application on 1.6.1998. Thereafter, Rajender Singh and Gurcharan Singh were arrested on 2.6.1998. However, they were released on receipt of the illegal gratification, but they were again arrested on 4.6.1998 and security proceedings were initiated against them and no action was taken against Kirpal Singh and Kamal Yadwinder Singh for beating them.
In order to prove the illegal confinement of Rajinder Singh and Gurcharan Singh on 2.6.1998, there is only oral testimonies of Iqbal Singh (PW5) and Gurcharan Singh (PW6). Both being interested witnesses could only be relied upon if their testimonies stand corroborated by any other source. Gurcharan Singh, the alleged detenue in the case stated that on 1.6.1998, ASI Jagsir Singh had brought them to the police station. Then, his brother Iqbal Singh accompanied by 5/6 other respectable visited the police post Balluana. Sukhjinder Singh, Member Panchayat and two other persons were already present in the police post. ASI Jagsir Singh asked him and his son to go out of the premises of the police post as he had already talked to his brother, meaning thereby, they were released with the intervention of Iqbal Singh. Any way, neither any of the 5/6 respectable persons, who had allegedly gone to the police post with the complainant, has not been examined, nor Sukhjinder Singh, Member Panchayat or any Criminal Appeal No.910-SB of 2004(O&M) [9] other police personnel present in the police post has been examined to prove as to whether the alleged detenues were arrested or illegally detained and they were released after accepting illegal gratification by Jagsir Singh.
As regards the presence of Sukhjinder Singh, Member Panchayat, the complainant Iqbal Singh (PW5) and Gurcharan Singh (PW6) admit that he was present in the police post. The complainant further states that Harbans Singh s/o Harnek Singh was also present in the police post. It has also come in evidence that the money was also got returned by Jagsir Singh through Sukhjinder Singh. Therefore, Sukhjinder Singh was a material witness to be examined by the prosecution, so that some corroboration could be made to the testimonies of Iqbal Singh - complainant and Gurcharan Singh - the alleged detenue. No documentary evidence has been produced on the record in order to prove the confinement of Gurcharan Singh and Rajinder Singh on 1.6.1998 or 2.6.1998. As such, the corroboration from some independent source had become more essential, but no such evidence has been led and, therefore, it would be difficult to hold that accused Jagsir Singh had arrested Gurcharan Singh and Rajinder Singh on 1.6.1998 and he had received the money for releasing them on 2.6.1998.
Notwithstanding the fact that story with regard to the payment of money on 2.6.1998 cannot be believed as Iqbal Singh himself has not stated in the application Ex.PE that he had handed over the money on 2.6.1998, but assuming for the sake of arguments if it is accepted that the money was paid by Iqbal Singh (PW5) on 2.6.1998, then there was no Criminal Appeal No.910-SB of 2004(O&M) [10] reason for the accused to proceed against Rajinder Singh and Gurcharan Singh under Section 107/151 CrPC on 4.6.1998. The accused never proceeded against Rajinder Singh and Gurcharan Singh before receiving the bribe money, but the evidence is only that he received the bribe money before he arrested them under Sections 107/151 CrPC. Therefore, the accused cannot be said to have received the bribe money for any motive or reward.
As a matter of fact, it is not a trap case where the shadow witness/ independent witness could prove the demand and acceptance of bribe money and recovery of money from the accused, could become an evidence of receiving of the bribe money by the accused. The accused in this case was a public servant and exposed to have daily dealings with the public. He was subject to comments and criticism of the people coming to the police post or at the detection of crime and it was very easy for anyone to level any such allegation against him, who was dissatisfied or aggrieved with him for the reason that his work was not done. It was only to protect the rights of the public servants and also keeping in view their public duties, the Legislature intended to have strict proof of the receipt of gratification before subjecting him to criminal law. Therefore, in cases, other than trap, only fool-proof evidence was required and the evidence of the complainant required corroboration before he could be fastened with criminality. As such, these type of cases were to be treated on different footings, so far as appreciation of evidence is concerned, because if the conviction takes place, then not only the accused goes to jail and earns ignominy, but a great set Criminal Appeal No.910-SB of 2004(O&M) [11] back is caused to the repute and livelihood of his family. Such cases are easy to be registered for many reasons at the instance of egoistic and ungranted elements viz., if the illegal demand of any person has not been met with; such person himself was under fear of his own implication in a case; if that person had previous enmity with the public servant and closeness with the officers under whom, he (public servant) was subordinate; if the fellow colleagues were envious of his straight forward working or his jump-up promotion. Thus, taking the aforesaid aspects of the case, this court is of the considered opinion that the law requires to look for some corroboration before indicting a public servant for receiving illegal gratification.
In the instant case, the complainant (PW5) has admitted that after the arrest of Gurcharan Singh and Rajinder Singh on 1.6.1998, he accompanied by Harbans Singh s/o Harnek Singh and 2/3 other persons went to the police post Balluana. Sukhjinder Singh, Member Panchayat was already present in the police post, though any of these persons may not be a witness to the payment of illegal gratification, but they could be examined at least in order to establish that Rajinder Singh and Gurcharan Singh were confined in the police post Balluana and that the complainant Iqbal Singh had gone there for getting them released and that he had entered the office of the accused for handing over him the money. The complainant (PW5) has further stated that a sum of Rs.900/- were already with him, whereas, he had borrowed a sum of Rs.150/- from Banarsi Dass, Member Panchayat, but said Banarsi Dass was also not examined by the prosecution. Criminal Appeal No.910-SB of 2004(O&M) [12] He is a material witness. Had he been examined, then he could unfold that the witness had received the money for paying the same to the accused. Again, this witness has stated that after some days of the filing of the complaint by him against the accused, he was summoned by the Station House Officer, Police Station Sadar Bathinda through Chand Singh, who obtained his thumb impression when a sum of Rs.1050/- was returned to him through Sukhjinder Singh, Member Panchayat. Neither Chand Singh, nor Sukhjinder Singh was examined, if examined, they could unfold the facts stating that the money was returned to the complainant.
The witness further states that some college students were accompanying Kamal Yadwinder Singh and Kirpal Singh, and they had given 10-15 blows to them. No such medical evidence has been brought on record indicating that they had suffered any injuries at the hands of Kamal Yadwinder Singh and Kirpal Singh or their accomplishes. Neither the driver nor the conductor of the bus, in which, they were travelling, was examined. Had they been examined, they could disclose if the complainant was travelling in the bus along with his brother and son and if they were beaten by Kirpal Singh and Kamal Yadwinder Singh.
Even Gurcharan Singh (PW6) has stated that demand or acceptance of the illegal gratification was not made in his presence. Thus, the case of the prosecution fails in both ways. Since the alleged detenues were not arrested on 1.6.1998 or 2.6.1998, therefore, no question of payment of illegal gratification, whatever, arises and the payment of the said amount on 4.6.1998 also does not arise as, thereafter, the accused were Criminal Appeal No.910-SB of 2004(O&M) [13] proceeded against under Section 107/151 CrPC. Had they been arrested or proceeded against on 4.6.1998, then the question of paying any amount of illegal gratification to the accused does not arise. Even if the complainant had paid the money to the accused on 2.6.1998, then question of arresting them under Sections 107/151 CrPC would not have arisen. Thus, in the absence of any independent corroboration regarding the factum of demand or acceptance of bribe by the accused, he deserved benefit of doubt.
The case is based on the testimony of the complainant alone and the same does not find support from any other source. Here, the complainant was not reluctant to give the bribe to the accused, but according to him, he readily paid the accused on his demand, therefore, his status could be treated at par with an accomplice. Therefore, in that situation also, the corroboration to the testimony of the accomplice has become essential. It has been held in case Dharam Pal vs. State of Haryana, 1998(2) RCR(Crl.) 295 as under:-
"...When there is no independent corroboration to the deposition of the complainant and the shadow witness to the recovery of bribe money from the accused, the prosecution case gets infirm and truncated. Independent corroboration of the evidence of the accomplice and the shadow witness is normally sought for, if not as a matter of law, then at least as a matter of prudence. In Surjit Singh v. State of Punjab 1997 (1) RCR 621, it was observed that in a case like this to bring home the guilt to the accused, it has to be established by the prosecution Criminal Appeal No.910-SB of 2004(O&M) [14] that the accused had demanded the bribe from the complainant and had accepted the same in pursuance of the demand. To prove these allegations merely the statement of the complainant or the trap witnesses cannot be relied upon without independent corroboration. In Darshan Lal v. Delhi Administration 1974(2) CLR 611 the Hon'ble Supreme Court held that trap witnesses in a case under section 5(2) of the Prevention of Corruption Act being concerned in the success of the trap, the court should require independent corroboration of their statements before convicting the accused. The same view was reiterated in Prem Kumar vs. State of Punjab 1976(3) CLR 366 and Jagjit Singh v. State of Punjab 1980 CLR 93. It was held in these cases that no implicit reliance can be placed on the testimony of trap witnesses in the absence of independent corroboration because trap witnesses are interested and partisan witnesses and on that account, they spring from tainted source. Need for seeking independent corroboration to the testimony of the complainant and shadow witnesses was also emphasized in Dalip Singh v. State of Punjab, 1988(1) RCR 125. It has been held more than once by the Hon'ble Supreme Court that the giver of the bribe is normally to be treated as an accomplice and before recording conviction of the delinquent Government servant, independent corroboration to the testimony of all the accomplices i.e., the Criminal Appeal No.910-SB of 2004(O&M) [15] complainant and shadow witnesses is normally sought for, if not as a measure of law just at least as a matter of prudence. In this case, Hari Ram Sarpanch and Harke Ram Sarpanch could have provided corroboration to the demand alleged to have been made by the accused for bribe. Corroboration could have been provided by Hawa Singh PW to the reiteration of demand for bribe and its acceptance from Nihal Singh PW in his presence. One of the main pillars of the prosecution has stumbled. One of the main pillars of the prosecution having stumbled, the prosecution case has become truncated."
It was also observed in case Ram Chand Tolaram vs. The State, AIR 1956 Bom. 287 as under:-
"to convict an accused on accomplice evidence is imprudent, because it is just possible that in some cases an accomplice may give evidence because he may have a feeling in his own mind that it is a condition of his pardon to give that evidence. No such consideration obtains in the case of evidence of a person who is not a guilty associate in crime, but who invites the police to pay a trap. All the same, as the person who lodges information with the Police for the purpose of laying a trap for another is a partisan witness interested in seeing that the trap succeeds. It would be necessary and advisable to look for Criminal Appeal No.910-SB of 2004(O&M) [16] corroboration to his evidence before accepting it."
The present case is on a better footing. It is not a case of trap, but the accused lodged the complaint and could not support his complaint even. His testimony in the Court is quite contradictory. The degree of corroboration in such cases would be higher than that in case of trap. Even if the complainant is treated as a partisan witness, even then the law requires corroboration.
What to talk of the aforesaid witnesses, the Investigating Officer failed to collect the compromise which according to the complainant, was effected under pressure. Had that compromise been brought on record, then that could lent some corroboration to the fact that the accused had demanded the dowry.
On going through the enquiry report (Ex.PD), it transpires that the conduct of the witness was not above board. He hailed from the Communist Party and the enquiry officers also could not reach the conclusion about payment of gratification by the complainant to the accused, rather it has been recorded by the Deputy Superintendent of Police, Bathinda in his enquiry report dated 12.7.1998, placed on record, that Iqbal Singh is a habitual complainant and he could not lead any sufficient evidence for payment of bribe.
The aforesaid facts and circumstances were not taken into consideration by the Trial Court and the evidence on record has also not been properly appreciated in right perspective before recording conviction Criminal Appeal No.910-SB of 2004(O&M) [17] of the appellant - accused. As such, interference at my end has become inevitable.
Consequently, the appeal is accepted, the impugned judgment is set aside and the accused - appellant is acquitted of the charge framed against him. The bail bonds and surety bonds stand discharged. Fine, if any paid, be refunded.
October 29, 2010 ( A.N.JINDAL ) `gian' JUDGE