Punjab-Haryana High Court
Gulzar Singh vs State Of Punjab on 30 May, 2011
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No.1033 SB of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1033 SB of 2001 (O&M)
Date of decision 30.5.2011.
Gulzar Singh
...... Appellant.
versus
State of Punjab
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present : Mr. A.P.S.Deol, Senior Advocate with
Ms. Rimplejeet Kaur, Advocate for the appellant.
Mr. A.S.Rai, AAG, Punjab.
K.C.PURI, J.
Gulzar Singh-appellant has directed this appeal against the judgment and order dated 3.9.2001 vide which he stood convicted under Section 7 read with Section 13 of the Prevention of Corruption Act, 1988 (in short - the Act) and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one month.
Criminal Appeal No.1033 SB of 2001 -2-
The brief facts of the prosecution case are that Bhan Singh uncle of complainant-Malkiat Singh had executed a Will in his favour regarding his landed property and mutation was accordingly sanctioned in his favour. In the year 1978, his father Ram Singh and uncle Bhan Singh had purchased 13 kanals of land from Gurdev Singh, Karam Singh, Makhan Singh, Harnek Singh and accordingly mutation was sanctioned in their favour. The complainant came to know that the name of his uncle Bhan Singh in respect of that land was not entered in the subsequent jamabandies. Since Bhan Singh had executed the Will in favour of the complainant, so he wanted that jamabandi should be corrected and the name of Bhan Singh should be incorporated in the subsequent jamabandies. For that purpose, he met appellant-Gulzar Singh Patwari, who agreed to do his work but after accepting bribe.
It has been further stated that on 22.11.1999, complainant met the accused and the accused told him that on 25.11.1999 the Tehsildar was to come at Phul and that the complainant should pay him Rs.2000/- as bribe and then he would get his work done. On the request of the complainant, the accused agreed to accept Rs.1,000/- as illegal gratification. As the complainant did not want to give bribe, therefore, he made false promise to the accused and then he talked to Jit Singh of his village and told him all these facts, who advised him to report the matter to the Vigilance Department and consequently on 25.11.1999 he along with Jit Singh came to the office of DSP Vigilance Bathinda and narrated the aforesaid facts to him. He also produced before him five currency notes of Rs.100/- denomination each and one currency note of Rs.500/- denomination on Criminal Appeal No.1033 SB of 2001 -3- which phenolphthalein powder was applied by the DSP and then he returned the same to the complainant with the direction to pass on the same to the accused on demand. PW Joginder Singh Senior Clerk, ATC, Office Bathinda was joined in the party and then they proceeded to village Khokhar. The police party stayed behind whereas Malkiat Singh and Jit Singh were sent to the office of the accused. After about ten minutes, Jit Singh gave signal to the police party and then the police party reached the office of the accused. DSP introduced himself to the accused and told him the purpose of raid. Then a solution of water and sodium carbonate was prepared in which Jit Singh was asked to dip his hands first and when he did so, the colour did not change and thereafter the accused was directed to dip his hands in the same solution and when he did so the colour changed to light pink and then that solution was transferred into nip and sealed with seal mark VK and signatory chit of Joginder Singh was taken into possession. Then from the personal search of the accused tainted currency notes were recovered from the back pocket of his trouser the numbers of which were tallied with the sapurdagi memo and found to be correct and then they were taken into possession. The pocket of the pant of the accused was also washed in similarly prepared solution which turned pink and then that solution was transferred into another nip and sealed. Statements of the witnesses were recorded. The case property was deposited with MHC Sukhbir Singh. Record was also taken in possession. After receipt of report of Chemical Examiner and sanction order accused were challaned.
On appearance of the accused, copies of the documents as relied upon by the prosecution were supplied to the accused free of costs. Criminal Appeal No.1033 SB of 2001 -4- The trial Court framed charge under Section 7 read with Section 13(2) of the Act against the accused. The accused pleaded not guilty and claimed trial.
In order to prove its case, prosecution examined Constable Jiya Ram as (PW-1), Malkiat Singh (PW-2), Jit Singh (PW-3), Joginder Singh (PW-4), Constable Karnail Singh (PW-5), Pardeep Kumar as (PW-6), DSP Vinod Kumar as (PW-7) MHC Sukhbir Singh (PW-8) and closed its evidence.
All the incriminating evidence appearing against the accused was put to him in his statement recorded under Section 313 Cr.P.C. and he pleaded his innocence and false implication. However, he did not lead any evidence in defence.
The trial Court after hearing the learned counsel for the parties convicted and sentenced the accused vide judgment and order dated 3.9.2001 as aforesaid.
Feeling dissatisfied with the aforesaid judgment and order, the appellant has preferred the present appeal.
Learned counsel for the appellant has submitted that case of the prosecution is full of infirmities and is not proved at all. According to the case of the prosecution, the demand of illegal gratification was made by the appellant for the purpose of entering fard badar in respect of the share of uncle of complainant Bhan Singh. It is submitted that the basis of the illegal gratification has not been proved by the prosecution. The jamabandi or other revenue record, which could prove the fact that name of Bhan Singh uncle of complainant was omitted from the revenue record, could only be Criminal Appeal No.1033 SB of 2001 -5- established by producing the documentary evidence from the revenue department. The prosecution for reasons best known to it has not produced not even a single document to prove the motive for the occurrence. So, in these circumstances, the prosecution story is doubtful.
To further buttress the above said point, learned counsel for the appellant has further submitted that judgment and decree Exs. D-1 and D-2 merely show that Bhan Singh and his brother Ram Singh have already suffered a decree in favour of Raj Singh and others. So, in these circumstances, there was no question of entering fard badar in respect of the share of Bhan Singh as he has already suffered a consent decree in favour of Raj Singh etc. Learned counsel for the appellant has further submitted that there was a motive for the complainant to falsely implicate the appellant. The Branch Manager of State Bank of Patiala vide letter Mark X addressed to Tehsildar requested for attestation of mutation in respect of mortgaged land. However, there is a note on the said letter Mark X dated 15.9.1999 that mutation be not entered. Since the bank has requested the Tehsildar not to attest the mutation and the complainant was requesting to enter the mutation and on that account the complainant has falsely implicated the appellant.
It is further submitted that the complainant has admitted the fact that his brother-in-law (saddu) is a patwari. So, in case any fard badar is to be made in that case, the complainant would have requested his brother-in-law and there was no occasion for him to approach the appellant for fard badar.
Criminal Appeal No.1033 SB of 2001 -6-
Learned counsel for the appellant has submitted that testimony of the complainant requires corroboration, which is missing in the present case. According to the complainant when he along with police party went to the place of appellant, Jit Singh (PW-3) was already present there. So, this fact proves that case of the prosecution is doubtful regarding demand and acceptance of the illegal gratification and the same has not been proved in accordance with law.
Learned counsel for the appellant has further submitted that prosecution witnesses are materially discrepant regarding joining of official witnesses, place of joining and time of joining them. Joginder Singh (PW-4) Senior Clerk, the official witness has stated that he was joined at about 10.30a.m. from his office. However, Malkiat Singh (PW-2) complainant has stated in his cross-examination that they started from Bathinda to the place of raid at 8 or 8.15a.m. So, if the testimony of complainant Malkiat Singh (PW-2) is taken as correct than Joginder Singh (PW-4) must have joined prior to 8 to 8.15a.m. Malkiat Singh (PW-2) has also stated that Joginder Singh PW was joined in the office of Vigilance whereas Joginder Singh has stated that he was joined from his office. So, in the presence of such contradictory statements, the conviction cannot be upheld.
Learned counsel for the appellant has further submitted that in the absence of evidence of demand, acceptance, absence of motive, the hand wash and pocket wash lost its importance.
Learned counsel for the appellant has relied upon the following authorities :-
Criminal Appeal No.1033 SB of 2001 -7-
(1) Amrik Singh vs. State of Punjab 2005(4) RCR
(Criminal)310 ;
(2) Ram Prakash Arora vs. The State of Punjab AIR 1973 Supreme Court 498 ;
(3) Raghu Nath Bansal vs. State of Punjab 2010(2) RCR (Criminal) 445 ; and (4) Darshan Lal vs. The Delhi Administration 1974 C.L.R. 611. In reply to the above noted submissions, learned State counsel has supported the judgment of the trial Court. He has submitted that there was no reasoning for the witnesses to falsely implicate the accused in the present case. The motive for false implication against the complainant is not proved. Hand wash and pocket wash, which are the perfect, cannot be brushed aside easily. The complainant and shadow witnesses have supported the case of the prosecution on all material particulars. The minor discrepancies pointed out by the learned counsel for the appellant are bound to occur in the testimony of the official witnesses. Non-production of the jamabandi is not fatal for the prosecution as observed by the trial Court.
I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties and have gone through the records of the case with their able assistance.
So far as, submission made by learned counsel for the appellant that non-production of jamabandis creates doubt in the prosecution story, is concerned that submission is without any force. This aspect of the case has been duly dealt with by the trial Court. Mere non-production of Criminal Appeal No.1033 SB of 2001 -8- jamabandis is not fatal for the prosecution case. The appellant has failed to prove the motive for false implication. The complainant - Malkiat Singh and shadow witness - Jit Singh have supported the case of the prosecution on all material particulars. PW-4 Joginder Singh, Senior Clerk of the office of ATC alongwith PW-7 DSP Vinod Kumar, have corroborated the prosecution story on all material particulars. Motive for false implication alleged by the appellant is not proved. The documents Exhibits D-1 and D-2 does not create any doubt in the prosecution version. The appellant has failed to explain the hand wash and pocket wash which is the perfect science. Why the Gazetted Officer and other PWs would implicate the Government employee? Mere fact that Malkiat Singh has stated that Jit Singh was already present in the office of the accused, does not dis-prove the case of the prosecution. Minor discrepancies are bound to occur due to passage of time. The document Mark 'X' relied upon by the appellant does not help the case of the appellant. This document has not been proved in accordance with the law. Otherwise also, from the perusal of the same it is revealed that it is a request made by Branch Manager to attest the mutation in favour of the bank. However, later on it is mentioned that mutation be not entered. So, this document also is not helpful to the appellant in any manner. Mere fact that brother-in-law of the complainant is Patwari, is not sufficient to create doubt in the prosecution version. The appellant has made a demand for illegal gratification. The acceptance and recovery of illegal gratification has also been proved by the prosecution witnesses. The testimony of the complainant is corroborated by the testimony of shadow witness. The minor discrepancy regarding time and place of joining the Criminal Appeal No.1033 SB of 2001 -9- witness does not create doubt in the prosecution version. The discrepancies are bound to occur due to passage of time. In Amrik Singh's case (Supra), it has been held that mere recovery of tainted amount is not sufficient. In that case statement of witnesses was inconsistent. So, the above said authority is not helpful to the appellant.
Ram Parkash Arora's case (Supra) is distinguishable to the facts of the present case. In that case, one of the witness Arjan Singh was a stock witness of the police who admittedly had appeared in 20 to 30 cases as prosecution witness. Rajender Lal and other material witnesses were not examined. The non-examination of material witnesses was the ground for acquittal in that case, which fact is missing in the present case.
Raghu Nath Bansal's case (Supra) is also distinguishable, as in that case motive for the occurrence was not proved. Shadow witness, who could prove the demand and acceptance was also not examined, which facts are missing in the present case.
Darshan Lal's case (Supra), is also distinguishable, as in that case Anand Behari Lal witness of demand and acceptance turned hostile.
No other point has been urged before me.
In view of the above discussion, the appeal is without any merit and the same stands dismissed.
( K.C. PURI )
JUDGE
May 30, 2011
sv/chugh