Punjab-Haryana High Court
Fateh Singh vs State Of Punjab on 14 November, 2014
Crl. A. No. S-2621-SB of 2013 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA
AT CHANDIGARH
...
Crl. A. No. S-2621-SB of 2013
Date of Decision: 14.11.2014
Fateh Singh ...Appellant
VERSUS
State of Punjab and anther ...Respondent
1. Whether the Reporters of Local Newspapers may be
allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
QUORUM : HON'BLE MS. JUSTICE RITU BAHRI.
Present: Mr. Vaibhav Narang, Advocate,
for the appellant.
Ms. Anmol Grewal, AAG, Punjab
-.-
RITU BAHRI, J.
In this appeal, appellant Fateh Singh has impugned the judgment of conviction and the sentence order dated 9.3.2012 passed by the Special Judge, Amritsar, whereby respondent No. 2-Darshan Dayal was acquitted of the charges framed against him under Section 13 (2) read with Section 7 of the Prevention of Corruption Act, 1988 (for short `the Act') The instant case was registered on the staetment of complainant-petitioner Fateh Singh. The complainant, who was working as Driver in Punjab Roadways, Amritsar, was suffering from vision problem and thus, requested the General Manager to depute GAURAV 2014.11.25 15:21 I attest to the accuracy and integrity of this document Crl. A. No. S-2621-SB of 2013 -2- him on some light duty as a crane driver. His request was accepted and was deputed as Crane Driver. Thereafter, respondent No. 2- Darshan Dayal who was duty clerk, demanded Rs.1000/- per month as bribe from the petitioner and stated that he will not allow him to do the duty as crane driver if he will not give him bribe. The petitioner refused to pay the bribe on that day and promised that he will give him the amount next day. The next day, petitioner along with one Harinder Singh Driver No. 98, Punjab Roadways, Amritsar went to the office of DSP Vigilance Bureau, Amritsar and lodged the report regarding the matter mentioned above. He represented four currency notes of Rs.500/- denomination each before DSP Shalinder Singh, who smeared the currency notes with phenolphthalein powder and after noting down the numbers, handed the same to the complainant- petitioner. DSP Shalinder Singh also prepared a solution of sodium bicarbonate in the presence of the complainant, shadow wintness and other official witnesses and made a demonisatration of chemical reaction of phenolphthalein with sodium bicarbonate by putting the paper smeared with phenolphthalein powder int eh solution of bicarbonate which initially being colourless, changed its colour to pink. DSP constituted a raiding party including complainant, shadow witness Harinder Singh, official witness namely Amarjit Singh and Sital Singh, J.E. River Works Drain Sub Division, Amritsar and other officials of the vigilance bureau went to the office of the accused, where the officials of Vigilance Bureau parked their vehicle at some distance and sent the complainant and shadow witness to the office of the accused- respondent No. 2 with a direction not to shake hand with the accused before and after paying the bribe money and further with a direction to shadow witness to pass a prefixed signal as and when the transaction GAURAV 2014.11.25 15:21 I attest to the accuracy and integrity of this document Crl. A. No. S-2621-SB of 2013 -3- was over. The accused in his office, demanded the bribe and complainant gave the tainted currency notes to him, which he accepted and Harinder Singh, shadow witness gave a prefixed signal. Before reaching the raiding party in the office of the accused, the accused had already placed the alleged currency notes in the Almirah. The Vigilance Officials enquired about the bribe money and accused refused to have taken any such money and on search of almirah, the said tainted currency notes were received from underneath the files. DSP Shalinder Singh after disclosing his identity, apprehended the accused and got his hands washed in a solution prepared at the spot and the colour of the solution turned pink. The wash pertaining to the accused was put into a nip and sealed with a seal having impression SS. It was taken into possession, vide memo, attested by the witnesses.
After completion of investigation and obtaining sanction for prosecution of the accused from his department, challan against the accused was presented in the Court.
Charge under Section 13 (2) read with Section 7 of the Act was framed against the accused, to which he did not plead guilty and claimed a trial.
At the trial, the prosecution examined Jagir Singh, station Supervisor, Punjab Roadways, Depot No.1, Amritsar (P.W.1), complainant Fateh Singh (P.W.2), Harinder Singh, Shadow Witness (P.W.3), Amarjit Singh, Clerk (P.W.4), H.C Som Nath (P.W.5), Sukhchain Singh (P.W.6), Sital Singh, Official Witness (P.W.7), Amrik Singh, Stenographer (P.W.8), Kuldeep Singh, Clerk (P.W.9), Balbir Singh, Senior Assistant (P.W.10) and DSP Shalinder, Investigation Officer (P.W.11).
GAURAV2014.11.25 15:21 I attest to the accuracy and integrity of this document Crl. A. No. S-2621-SB of 2013 -4-
In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded false implication. He stated that he never demanded nor accepted any amount from the complainant and no recovery of tainted money was effected at his instance by the Vigilance Bureau.
The appellant examined Kishan Chand (D.W.1) and Jagir Singh (P.W.2) in defence.
I have heard Mr. Vaibhav Narang, Advocate, appearing for the appellant and Ms. Anmol Grewal, AAG, Punjab, appearing for the respondent-State and have gone through the records of the case.
The trial Court examined the evidence led by the prosecution. The complainant who was working as Driver in Punjab Roadway, Amritsar-1, has admitted in his cross examination that he did not join his duty uptill 7.1.2009 and thereafter report was sought by General Manager from the accused Darshan Dayal, regarding the absence of the complainant, who reported that the complainant did not join duties uptil 7.1.2009 and thereafter a telegram was sent at this residential address regarding his absence from duty. D.W.1 Krishan Chand, Record Keeper of the Punjab Roadways, Amritsar-I stated that as per the attendance register pertaining to the year 2009, Fateh Singh was on leave and was supposed to resume his duty on 1.1.2009 as he did not join the duties on that date, the accused Darshan Dayal had reported the matter to Duty Inspector, which was forwarded to General Manager, vide report Ex DA/1. D.W.2 Jagir Singh retired Traffic Manager of Punjab Roadways, Amritsar has corroborated the version of Ex DA/1. Order dated 8.1.2009, Ex DA/2 showed that the GAURAV 2014.11.25 15:21 I attest to the accuracy and integrity of this document Crl. A. No. S-2621-SB of 2013 -5- complainant vide order dated 8.1.2009 was deputed to work as driver on recovery fan for 20 days. Order Ex DA/3 passed by the General Manager, Punjab Roadways, Amritsar-I has shown that the above said period w.e.f 1.1.2009 to 7.1.2009 was treated as leave without pay in the case of Fateh Singh. Thus, it showed that the complainant was inimical towards the accused Darshal Dayal.
The only evidence with regard to admission/acceptance of tainted money is the statement made by the complainant. Shadow witness Driver Harinder Singh has demolished the case of the prosecution and denied that the complainant had told him that the accused Darshan Dayal had demanded bribe from him for changing the duties and those currency notes of Rs.2000/- were smeared with Phenolphthalein Powder by DSP Shalinder Singh in his presence. Thus, this witness who is a star witness of the prosecution has denied joining the officials of the Vigilance Bureau and the complainant to the office of the accused. This witness was declared hostile. He was cross examined at length but could not elicit anything in favour of the prosecution.
As regards, recovery of tainted money from the accused, since P.W.3 Harinder Singh had turned hostile, the only deposition of Sital Singh, P.W.7 who was called by DSP to join the raiding party, who in his cross examination, has stated that he had reached the office of the accused 4-5 minutes after the reaching of the DSP and the vigilance bureau had already apprehended the accused before the arrival to the office of the accused. He has further stated that the place of recovery is a common place, which houses the office of some officials of Punjab Roadways, Amritsar and at the relevant time, they were also sitting in the said office their table/chairs. The almirah from GAURAV 2014.11.25 15:21 I attest to the accuracy and integrity of this document Crl. A. No. S-2621-SB of 2013 -6- which the tainted money was recovered was lying at a distance of 10- 12 feet from the seat of the accused.
Another fact which the trial court has taken into consideration that the complainant in his cross examination has admitted that at the time of the occurrence, he has entered the office of the accused and had shaken hands with the accused. Thus, the possibility of the hands of the complainant being treated with Phenolphthalein Powder, which would have effected the hands of the accused, could not be ruled out.
Further, DSP while appearing as PW11 stated that almirah was lying open when he had entered the office of the accused and the fact that the almirah from which the tainted money was recovered was lying at a distance of 10-12 feet from the seat of the accused. Thus, the prosecution has not been able to prove beyond the shadow of reasonable doubt that the currency notes were recovered from the accused, as the recovery of such tainted currency notes from an almirah was no in exclusive possession and for exclusive use of accused.
Hon'ble the Supreme Court in a case of State of Rajasthan vs. Mohan Lal, 2009 AIR (SC) 1872 while considering a case of acquittal of the accused under the Prevention of Corruption Act wherein the currency notes smeared with powder were recovered from open almirah but there was no evidence to show how the currency notes smeared with powder reached in the almirah. Further no evidence was led that accused demanded the amount which was paid but instead of accepting it directly, the accused asked the person concerned to put the currency notes in the almirah. Further independent witness sated that he did not hear any conversation GAURAV 2014.11.25 15:21 I attest to the accuracy and integrity of this document Crl. A. No. S-2621-SB of 2013 -7- between the complainant and the accused and he also did not see any transaction. Hon'ble the Supreme Court dismissed the appeal filed by State against the accused who was acquitted by the High Court Hon'ble the Supreme referred the judgments right from 1934 to 2007 and finally be making a reference to a judgment of State of U.P v. Krishna Gopal, 1988 (4) SCC 302 has held that a person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is,however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. In paragraph 9, it has been held as under:-
9. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.
Further Hon'ble the Supreme Court in a case of State of Punjab vs. Madan Mohan Lal Verma, 2013(3) R.C.R (Criminal) GAURAV 2014.11.25 15:21 I attest to the accuracy and integrity of this document Crl. A. No. S-2621-SB of 2013 -8- 972 while considering a case where the accused was arrested taking illegal gratification but he was acquitted on the ground that there was a witness to the recovery but no witness of accepting bribe. In paragraph 6, it has been held as under:-
6. It is a settled legal proposition that in exceptional circumstances, the appellate court for compelling reasons should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse, i.e. if the conclusions arrived at by the court below are contrary to the evidence on record; or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice; or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence. (Vide: Abrar v. State of U.P., AIR 2011 SC 354; Rukia Begum v. State of Karnataka, AIR 2011 SC 1585; and State of Madhya Pradesh v. Dal Singh & Ors., AIR 2013 SC 2059).
In the present case, Sital Singh, P.W.7 while appearing in witness box, has stated that he had reached the office of the accused 4-5 minutes after the reaching of the DSP and the vigilance bureau had already apprehended the accused before the arrival to the office of the accused. He has further stated that the place of recovery is a GAURAV 2014.11.25 15:21 I attest to the accuracy and integrity of this document Crl. A. No. S-2621-SB of 2013 -9- common place, which houses the office of some officials of Punjab Roadways, Amritsar and at the relevant time, they were also sitting in the said office their table/chairs. The almirah from which the tainted money was recovered was lying at a distance of 10-12 feet from the seat of the accused. Thus, the finding recorded by the Court below that the recovery of the said tainted currency notes from an almirah was not in exclusive possession and for exclusive use of the accused and further the possibility of the hands of the complainant being treated with phenolphthalein powder, does not require any intereference.
The prosecution has not been able to bring home the guilt of the accused beyond all reasonable doubts. The judgment of acquittal raises the presumption in favour of the accused-respondent No. 2 and there is no other evidence which the trial Court has ignored, which can lead to conviction of the accused.
Resultantly, this appeal is hereby dismissed being without any merit.
14.11.2014 ( RITU BAHRI ) G Arora JUDGE GAURAV 2014.11.25 15:21 I attest to the accuracy and integrity of this document