Punjab-Haryana High Court
Amar Nath vs State Of Haryana on 10 September, 2010
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
Criminal Appeal No.1925-SB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Appeal No.1925-SB of 2002
Date of Decision: September 10, 2010
Amar Nath .......Appellant
Versus
State of Haryana .......Respondent
CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr.PK Palli, Senior Advocate with
Mr.Jai Bhagwan, Advocate,
for the appellant.
Mr.JS Bhullar, Assistant Advocate General, Punjab.
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JITENDRA CHAUHAN, J.
1. This appeal is directed against judgment and order dated 22.11.2002, whereby the learned Special Judge, Patiala convicted appellant Amar Nath for the offence under Section 7, 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act') and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.4,000/- or in default thereof, to further undergo rigorous imprisonment for one month.
2. Brief facts of the prosecution case are that Dalwara Singh herein `the complainant' got recorded his statement, Exhibit PP, before DSP Ranjit Singh Dhillon, Vigilance Bureau, Flying Squad, Patiala, to the effect that on 20.3.1996, he received gun shot injuries, which hit on his left hand and chest. He met the accused/appellant Amar Nath in order to obtain the Criminal Appeal No.1925-SB of 2002 2 bed head ticket, X-report and other documents relating to his treatment. The complainant deposited a sum of Rs.40/- as fee for obtaining the said documents. The accused/appellant asked him to come after 15 days and collect the said documents. On 24.6.1998, the complainant again visited the office of the accused/appellant, who then demanded a sum of Rs.500/- as illegal gratification for supplying the said documents. Ultimately, the bargain was struck at Rs.450/-. However, the complainant did not pay the said amount at that time and came back and met one Mohan Singh, resident of Bular, who suggested him not to pay the said amount.
3. On the basis of above statement, formal FIR, Exhibit PP, was registered.
4. The complainant handed over nine currency notes of denomination of Rs.50/- each to Sh. R.S.Dhillon and the same were returned to him after applying phenolphthalein powder with the instructions to hand over those very currency notes to the accused as and when demanded. The shadow witness Mohan Singh, PW, was also instructed to accompany the complainant to the office of the accused for giving signal to the raiding party after receipt of the bribe money by the accused/appellant. At about 2.00 p.m., the raiding party proceeded towards Rajindra Hospital, Patiala and on the way, Manjit Singh was joined as independent witness from the office of the MARKFED. On reaching near the office of the accused/appellant, the complainant and shadow witness were sent to the office of the accused whereas rest of the members of the raiding party remained present behind the office of the accused/appellant waiting for the signal.
5. After receiving the pre-decided signal by the members of the Criminal Appeal No.1925-SB of 2002 3 raiding party, DSP R.S.Dhillon, PW12, led the raiding party inside the office of the accused, disclosed his own identity and caught hold the accused. The tainted money was recovered from the ticket pocket of the accused/appellant. Thereafter the raiding party subjected the accused to the process of hand wash and the ticket pant of the accused/appellant was also dipped in the solution, which showed positive chemical results. The accused/appellant was arrested.
6. After completion of the investigation, the accused/appellant was challaned and thereafter charge sheeted by the Special Judge, Patiala, for the offence under Sections 7 and 13 (i) (d) of the Act, 1988 to which the accused/appellant pleaded not guilty and claimed trial.
7. In order to substantiate the allegations against the accused, the prosecution examined as many as ten witnesses, namely, MHC Gurbhej Singh, as PW1; C. Karamjit Singh, as PW2; Jai Gopal, Senior Assistant, Office of Medical Superintendent, Rajindra Hospital, Patiala, as PW3; Mahesh Chander, as PW4; Manjit Singh, as PW5; Chaman Lal, as PW6; Dilbara Singh, as PW7; Mohan Singh, as PW8; Dr.Sukhbir Singh, as PW9 and DSP Ranjit Singh Dhillon, as PW10.
8. The accused-appellant was examined under Section 313 of the Code of Criminal Procedure in which he denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. In defence, the accused/appellant examined Dr.Vikas Goel as DW1 and Jaswant Kaur, as DW2.
9. After hearing both the parties, the accused/appellant was convicted and sentenced by the trial Court as noticed in para 1 of this judgment.
Criminal Appeal No.1925-SB of 2002 4
10. Feeling aggrieved against the judgment and order of the learned trial Court, the appellant has preferred the present appeal, which was admitted by this Court on 5.12.2002.
11. Learned counsel for the appellant has argued that there are vital and material discrepancies in the case of the prosecution with regard to the alleged initial demand of illegal gratification. Dilbara Singh, PW7, in his cross-examination has stated that he came to Patiala on 24.6.1998 and the accused - appellant demanded Rs.500/- for delivering the documents, but the deal was struck at Rs.450/-. He met Mohan Singh, PW8, and shared the conversation took place between the complainant and the accused-appellant. However, Mohan Singh, PW8, has given totally different version in this regard and has shown himself to be present at the time of demand made on 24.6.1998. It has further been argued that there are material contradictions in the statements of the complainant-Dilbara Singh and Mohan Singh, PW8 which demolish the case of the prosecution.
12. Learned counsel for the appellant next argued that as per the information, the complainant did not find the accused-appellant in his office and met a lady, the Despatch Clerk, who gave him a copy of the summary of bed-head ticket. Thereafter, he again went to the Office of the accused-appellant where he was found present. Learned counsel submits that during deposition, Dilbara Singh in his examination-in-Chief did not mention anything about the meeting of the lady Dispatch Clerk or receiving the summary of bed-head ticket from her.
13. It has further been argued that the complainant was cross- examined on this point and he has falsified the prosecution version and has given totally different version. In his cross-examination, he has stated that Criminal Appeal No.1925-SB of 2002 5 he had come to Patiala after 15/20 days to get the report. On that day, he met Amar Nath, the accused-appellant, besides that lady Clerk and on that day, one report was handed over to him by the said lady Clerk. It was further conveyed to the complainant by the said lady Clerk that she has handed over all the documents, which related to the complainant and his brother Lal Singh and conveyed that whatever was available with her, had been done and rest was to be completed by Amar Nath, the appellant. Learned counsel has submitted that this is stated to have happened about 10/15 days prior to the registration of the present case. Nothing has come on record about what transpired between the accused and complainant in the morning of 24.6.1998. The complainant has further stated in his cross- examination that he met the appellant only on their visit to the Branch earlier and no other employee was present except the lady and he has specifically stated that he did not meet her. Thus, the learned counsel has contended that there are different versions regarding the meeting of complainant and appellant on 24.6.1998 which totally shatters the case of the prosecution.
14. It has further been argued that second demand is also not proved. The complainant in his examination-in-chief has alleged that the tainted amount was paid in the presence of Mohan Singh, PW8. However, he is not supported by any evidence and is contradicted by Mohan Singh, PW8, who has stated that some conversation took place between the accused and Dilbara Singh and he handed over the bribe money to the accused and he (Mohan Singh) gave stipulated signal to the police.
15. Learned counsel has further argued that the case of the prosecution becomes further doubtful when Mohan Singh, PW8, states that Criminal Appeal No.1925-SB of 2002 6 in fact the complainant had signalled him that he had paid the amount and he himself did not see the complainant paying the amount to Amar Nath, the appellant.
16. It has further been argued that there is no motive to raise the demand of alleged gratification. He has submitted that Exhibit PL/9 is the order of the learned Magistrate vide which x-ray report and bed-head tickets were ordered to be supplied to the complainant as per rule. This order, Exhibit PL/9 is dated 21.5.1998. He has referred that Exhibit PL/4 shows that this was marked by the Deputy Medical Supdt., Rajindra Hospital, Patiala to the CRO Branch on 26.5.1998 which was further marked to the accused-appellant by Dr.K.K.Goel on the same day. Exhibits PL/4 and PL/5 are the summary of bed-head tickets, which are shown to have been signed by the Doctor Incharge, CRO Branch, Rajindra Hospital on 28.5.1998. It is mentioned in this report that MLC x-ray had already been handed over to Haryana Police on 24.6.1996. Thus, the learned counsel argued that whatever was in the CRO Office had already been supplied. Learned counsel has further referred to the statement of Dr.SS Chauhan, PW9, who, in his cross-examination, has stated that whenever a copy is applied in the Branch, the same is supplied by the Dispatch Clerk. Exhibit PO is the memo of recovery of bed-head ticket from the complainant, which is of 25.6.1998. The learned counsel emphasizes that it led to the conclusion that the reports were not with the accused/appellant and it is not the case of the prosecution that after getting the said reports from the In- charge, the appellant kept the same with himself or that he demanded money for handing over these documents.
17. It has further been argued that there are contradictory versions Criminal Appeal No.1925-SB of 2002 7 with regard to the meeting that took place on 26.5.1998. From the statement of the complainant, it is clear that whether the application was given to Amar Nath or to the Dispatch Clerk, which again falsified the prosecution version and the meeting of 26.5.1998 is not proved, whereas it is proved on record that the said application i.e. Exhibit PL/9 was marked to the accused- appellant by his Incharge and received by him as per the procedure. Learned counsel concludes that, therefore, the meeting of the complainant even on 26.5.1998 with the appellant is not proved.
18. Learned counsel for the appellant has next submitted that the accused-appellant has been falsely implicated as the complainant was annoyed with him because of non-supply of x-ray reports. In his statement, complainant-Dilbara Singh, PW7 has admitted that he had been demanding the x-ray reports from the accused-appellant who told him that the same had been taken away by the police. On that account, some altercation took place between the complainant and appellant Amar Nath. He has further referred to the admission of the complainant that he has received Rs.25,000/- from the State for getting the case registered and it is the case of the appellant that since the complainant was in need of money which prompted him to falsely implicate him in the present case. Learned counsel has further submitted that the conduct of the complainant and the shadow witness also proves the fact of false implication of the appellant. Learned counsel has submitted that Mohan Singh is the husband of the sister of one Bakhshish Singh. Bakhshish Singh was involved in the murder case along with Dilbara Singh, PW7, which is admitted by PW7 in his cross-examination. Dilbara Singh, PW7, has further admitted that the case against Bakhshish Singh used to be pursued by him as he was not on good terms with Mohan Criminal Appeal No.1925-SB of 2002 8 Singh. The complainant has named Jaswant Kaur as the wife of Bakhshish Singh. An application for bail was filed in the year 1998 on behalf of Bakhshish Singh on the ground that his wife Jaswant Kaur was admitted in the Department of T.B. and Chest disease, Government Medical College, Patiala. The said application of Bakhshish Singh was, however, rejected. The complainant has further stated that he was suffering from chest disease at that time. The learned counsel submits that the case of the appellant is that Dilbara Singh got impersonated the wife of Mohan Singh as Jaswant Kaur and got admitted her in the hospital, whereas by appearing as PW7, he has sated that it was Jaswant Kaur who was admitted in the hospital. To falsify this version, Jaswant Kaur has been examined as DW2 and zimni order on the file would show that how her presence was procured falsely. She has categorically stated that she was never admitted in T.B.Hospital, Patiala and never suffered from T.B. Disease. The learned counsel submits that this amply demonstrates that Dilbara Singh and his associate could go to any extent to exploit anything and make mockery. Learned counsel has submitted that the conduct of the complainant shows that his evidence and the case got framed by him has to be seen with great caution as he had altercation with the accused-appellant and keeping his antecedents in view he can go to any extent to falsely implicate the appellant.
19. It has further been submitted that there are general discrepancies with regard to demand, acceptance and recovery which is not proved and the evidence of the complainant is not corroborated by any evidence. That the nips were found empty and only power was found. He has also referred to the statement of Mohan Singh, PW5 and Dr.Sukhbir Singh Chauhan, PW9, who have deposed that firstly the hands of the Criminal Appeal No.1925-SB of 2002 9 accused were washed, thereafter recovery was effected and the pant was washed. However, Mohan Singh has rendered absolutely changed sequence of recovery. In his examination-in-chief, he has stated that firstly the recovery was effected, hands were washed and thereafter, the pant was washed.
20. The learned counsel has further pointed out the discrepancies with regard to the recovery of bed-head tickets. As per record, four bed- head tickets have been shown to be recovered. Mohan Singh, PW5, in his cross-examination, has stated that two bed-head tickets were recovered. The learned counsel, thus, argues that there remains the mystery about the recovery of two bed-head tickets. There is further contradiction in the statement of Dilbara Singh, PW7, with regard to his statement that from the CRO Branch bed-head tickets, case summary were taken into possession which is also falsified as the case summary had already been taken into possession. Learned counsel has further stated that presence of Dr.SS Chauhan, PW9, is also doubtful. DSP Ranjit Singh Dhillon, PW10 does not state that at what time Dr.Chauhan, PW9, came at the spot. In his cross- examination, he has stated that he had entered the room at the moment DSP entered. Therefore, the learned counsel contends that one thing is clear that Dr.Chauhan and DSP entered the room at one and the same time, whereas Dr.Chauhan, PW9, stated that he had received information that vigilance people had raided the office of the accused -appellant and thereafter, he arrived at the spot. The complainant and Mohan Singh, PW8 do not name Dr.Chauhan, PW9 at all. Learned counsel submits that this shows that the investigation in the instant case is tainted and the conduct of DSP Ranjit Singh Dhillon, PW10, is not above-board. From his cross-examination, Criminal Appeal No.1925-SB of 2002 10 learned counsel further submits that the place where the raiding party is stated to have been standing is also not proved. Manjit Singh, PW5, has stated that the office was situated at the distance of 100-150 yards from the place where they had parked the jeep and one has to cross two varandas of the hospital to reach the office of the accused-appellant which was surrounded by other rooms. He has further stated that the shadow witness gave a signal to them after about 15 minutes and at that time, they were standing near the jeep of the Department. Learned counsel stated that this shows that they were at the distance of 100-150 yards and there were two varandas and rooms intervening showing that the shadow witness had to cover sufficient distance to make the signal. Mohan Singh, PW6, the shadow witness, in his cross-examination, has stated that he made the signal while in the room of Amar Nath appellant itself and the police was visible and was standing near the room of the accused-appellant. Learned counsel states that this is the material contradiction which shatters the root of the prosecution case. He has further stated that link evidence is also missing as there is no evidence with regard to specimen seal.
21. On the other hand, learned counsel for the State has argued that case of the prosecution is established beyond any reasonable doubt. The alleged gratification amount was recovered by the raiding party, which was formed on the complaint made by Dilbara Singh, PW7.
22. I have heard learned counsel for the parties and perused the records of the case with their assistance.
23. The broad allegation appearing against the appellant is that he demanded money i.e. Rs. 450 for supply of certain medical documents i.e. x-ray reports and Bed Head tickets pertaining to the Complainant Dalwara Criminal Appeal No.1925-SB of 2002 11 Singh and his brother Lal Singh.
24. The key ingredients, which are required to be proved in a case of alleged corruption, are demand of illegal gratification, acceptance of the same and this demand/ acceptance should be in relation to the official position of the accused whereby he is able to extend an advantage to the person from whom the bribe has been sought.
25. As per the complainant, who appeared in the witness box as PW 7, money was demanded by the appellant for supply of the x-ray reports and bed head tickets. It is noteworthy that the complainant was armed with a court order in which directions had been given to the competent/ concerned authority of Rajindra Hospital, Patiala that x-ray reports and bed head tickets should be made available to the complainant. The complainant deposed that on 24.6.98 when he visited Rajindra Hospital, money was demanded by the appellant Amar Nath for which the bargain was struck at Rs. 450 which fact was later on disclosed by the Complainant to Mohan Singh, PW 8. However, PW 8 Mohan Singh, who was deputed as a shadow witness during the raid, deposed that demand for money came from the appellant in his presence as he was with the Complainant at that point of time. This stark contradiction between the testimonies of the Complainant and the Shadow Witness regarding the alleged demand for bribe raises a serious doubt as to whether this demand was ever made by the appellant.
26. Another factor, which renders the prosecution story of bribe demand improbable, is that the appellant was allegedly in control of the relevant medical documents which the Complainant wanted to possess in order to file a criminal case against his assailants, whereas it has come clearly on record that one of those documents had been supplied to the Criminal Appeal No.1925-SB of 2002 12 Complainant by the lady dispatch clerk i.e. Bed Head Tickets and the other document i.e. X-Ray reports, had already been taken into possession by the Police authorities of Hissar District. The Complainant clearly admits in his cross examination that he was supplied with documents by the lady dispatch clerk though strangely enough he also says that he does not know what were those documents. It is clear that he deliberately avoided admitting that he received the bed-head tickets from the dispatch clerk. It is also admitted by him that he was sent to the dispatch clerk by the appellant only, which further goes to prove that the appellant was not inclined to stall the supply of documents to the Complainant. In any case, the Complainant was armed with a court order and no one would dare to ask for a bribe knowing fully well that it will be a direct violation of the court's order, in addition to being an illegal act under the Act. The other document i.e. X- Ray reports, admittedly had already been taken away by the police authorities investigating the incident in which the Complainant and his brother sustained injuries. A perusal of the application moved by the Complainant before the concerned Court for obtaining the medical records from the Rajindera Hospital shows that these were the only two documents that he wanted to have from Rajindera Hospital, Patiala. As has already been discussed above, one of these documents was supplied to him by the dispatch clerk and the other was not in the possession of the appellant himself. There was thus no occasion for the appellant to demand any kind of bribe from the Complainant.
27. The acceptance of bribe by an accused is undoubtedly the most incriminating factor when judging his guilt. In this regard, the testimony of a shadow witness is most relevant since the bribe giver alone cannot be Criminal Appeal No.1925-SB of 2002 13 believed and his version that the bribe was accepted by the accused, is to be corroborated by the shadow witness who is supposed to be a witness to the act of accepting bribe. In the present case, a perusal of the cross examination of the shadow witness i.e. PW 8 reveals that the said witness did not actually hear the conversation between the complainant and the appellant. He simply says that some conversation took place between them. Thereafter, he also states, in his cross examination, that he did not witness as to whether the bribe was accepted and put in his pocket by the appellant. if the shadow witness neither heard any conversation between the appellant and the complainant which could substantiate the allegation of the complainant that the appellant demanded money, nor was he witness to the actual acceptance of bribe by the appellant, in such a scenario the evidentiary value of the shadow witness is reduced to that of a formal witness and it would be most unsafe to rely on such a testimony to return a finding of guilt of the accused. There is another reason which creates a doubt in the mind of the Court regarding the truthfulness of the shadow witness. The Complainant was working as an RMP doctor. Son of the shadow witness was working under the Complainant and the complainant also admitted in his cross examination that he knew the Complainant for the last 2 -3 years. In view of the relationship between the complainant and the son of the shadow witness, it is most reasonable to assume that PW8 Mohan Singh was an interested witness and was not impartial.
28. It would also be relevant to briefly highlight the cross examination of the Complainant wherein he submitted that he had an altercation with the appellant over the supply of medical records. It is common human experience that if one has a fight or a heated argument with Criminal Appeal No.1925-SB of 2002 14 another person over some matter in which such other person is interested, it is most likely that he would ensure that he causes loss to such other person in respect of that matter but it is highly unlikely that a bribe would be asked in respect of the same matter because in such a case, it becomes more a matter of ego and prestige rather than that of causing monetary loss. Thus, the allegation of the Complainant that the appellant asked for a bribe for supply of the medical records after having fought with him over the supply of such records, seems to be going against the expected human conduct.
29. In view of the above discussion, the prosecution allegation that the appellant demanded and accepted bribe from the Complainant stands to totally disproved.
30. Resultantly, this appeal is allowed. The judgment of conviction and order of sentence dated 22.11.2002 is set aside and appellant stands acquitted of the charges for which he was convicted by the learned trial court under the Act.
31. The complainant received an amount of Rs.25000/- for getting the present case registered against the appellant. Since, the complainant version has been disbelieved by this Court, it is also directed that he shall refund the said amount of Rs.25000/- with interest at the rate of 7% from the receipt of the award amount till its realisation within a period of one month from the date of receipt of a copy of this judgment. The Special Judge, Patiala, will ensure the compliance of this direction and to do the needful as per law.
10.9.2010 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes / No