Punjab-Haryana High Court
Krishan Lal vs State Of Punjab on 23 September, 2010
Author: Jora Singh
Bench: Jora Singh
CRA-S-444-SB of 1998 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-444-SB of 1998
Date of decision: 23.9.2010
Krishan Lal
........ Appellant
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
Present: Mr. Vikram Chaudhary, Advocate, for the appellant.
Mr. Arshvinder Singh, Deputy Advocate General, Punjab.
JORA SINGH, J.
This appeal was preferred by Krishan Lal, to impugn the judgment of conviction and order of sentence dated 11.5.1998, passed by the learned Special Judge, Ferozepur, in Sessions Case No. 18 of 1990, arising out of FIR No. 34 dated 27.6.1990, registered under Section 13 (2) Prevention of Corruption Act, 1988 (hereinafter referred as 'the Act'), at Police Station Jalalabad.
By the said judgment, he was convicted under Section 13 (2) of the Act and sentenced to undergo Rigorous Imprisonment for 1½ years (18 months) and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo Rigorous Imprisonment for three months.
Prosecution story, in brief, is that Amarjit Singh-complainant is R/o village Chak Balochanwala, Police Station Sadar, Jalalabad. His father Gurbax Singh, his uncles late Karam Singh and Kartar Singh, CRA-S-444-SB of 1998 -2- owned land measuring 36 killas situated in the revenue estate of village Gulam Rasulwala. Land was under the possession of tenants and to get share from the tenants, every year copies of Jamabandi and Khasra Girdawari were obtained in order to get the income of the produce assessed from the office of Kanungo. After that they get only 1/3rd share of the produce. In Rabi 1990, copy of Khasra Girdawari and Jamabandi was to be obtained from the Patwari. His father and uncles Karam Singh, Kartar Singh and Surian Singh, requested him to get copy of jamabandi from the Revenue Patwari. On 23.6.1990, he had met Krishan Lal, Revenue Patwari of village Chak Gulam Rasulwala. Office of Krishan Lal was situated in Bahmani Bazar, Jalalabad. He had met Krishan Lal, Patwari and requested him to prepare the copy of Jamabandi and the Khasra Girdawari. Then Krishan Lal replied that due to rush of work and to prepare the documents, Rs.1000/- was to be paid as illegal gratification. He had requested Krishan Lal, Patwari, that he was a poor man and settlement was for Rs.600/-. On receipt of Rs.600/- as illegal gratification Krishan Lal, Patwari, agreed to prepare the copies of Khasra Girdawari and Jamabandi. Amarjit Singh, requested the Patwari that he was not in possession of payment then Patwari replied to bring payment of Rs.600/- on 27.6.1990 and by that time he will prepare the copies of Khasra Girdawari and Jamabandi and on payment of Rs.600/- as illegal gratification to collect the documents.
Amarjit Singh was not ready and willing to pay illegal gratification but Krishan Lal Patwari forced him to pay illegal gratification , without payment Patwari was not ready to supply the revenue record then complainant alongwith Harbans Singh S/o Jagtar Singh R/o Kathgarh had gone to the office of Vigilance Bureau, Ferozepur. Six currency notes each of the denomination of Rs.100/-
CRA-S-444-SB of 1998 -3- were produced before Babu Singh, Inspector Vigilance. After recording the statement of Amarjit Singh Ex. PB, the same was signed by him after attesting the same to be correct one. After recording the statement Ex. PB number of the currency notes were noted in the memo. Complainant was directed to pay only those marked currency notes to the Patwari, on demand. Phenolphthalein powder was applied to the notes and after personal search of the complainant, when no other currency note was with the complainant then marked currency notes were handed over to him with a direction to hand over only those currency notes to the Patwari. Memo was prepared regarding handing over of currency notes. Currency notes handed over to the complainant were signed by Harbans Singh as Shadow witness.
Harbans Singh, was directed to accompany the complainant and hear the conversation amongst the complainant and Patwari regarding demand and payment of illegal gratification and after the receipt of marked currency notes by Krishan Lal, Patwari, then to give agreed signal to raiding party standing scattered at some distance from the office of the Patwari. After making endorsement Ex. PB/1 on the statement of the complainant at 10.45 a.m. the same was handed over to Constable Harbhajan Singh for getting a criminal case registered against the accused. Direction was given to Constable Harbhajan Singh that after getting the criminal case registered then to bring the file of the FIR at the spot.
Police party headed by Babu Singh, Inspector Vigilance, joined Paramjit Singh, official of PWD Department after getting permission from Executive Engineer, vide application Ex. PK. On the way Amarjit Singh-complainant and Harbans Singh were introduced to Paramjit Singh official witness. Amarjit Singh and Harbans Siungh were CRA-S-444-SB of 1998 -4- sent to the office of the accused and remaining police party alongwith Paramjit Singh official witness had stayed outside the office. After sometime Harbans Singh came out of the office and gave agreed signal to the police party. Then Inspector Babu Singh alongwith the police party had gone to the room of the accused. Inspector Babu Singh had disclosed his identity to the accused and questioned him as to whether he has received Rs.600/- as illegal gratification from Amarjit Singh to prepare the copies of Khasra Girdawari and Jamabandi. A glass of water was arranged and solution was prepared by adding sodium carbonate and firstly hands of Paramjit Singh were washed but colour of the solution did not change then secondly the hands of the accused were washed in the solution then the colour of the solution had changed into pink. The solution was transferred into a nip and the nip was sealed with the seal bearing impressions 'BSG' by placing the signatory chit of Paramjit Singh. Sealed parcel was taken into police possession vide memo attested by the witnesses. On personal search of the accused Rs.600/- was recovered from the front pocket of the shirt worn by the accused. Numbers of the recovered currency notes were tallied with the numbers already noted in the memo. Recovered currency notes were taken into police possession vide memo attested by the witnesses. On personal search of the accused Rs.1188/-, Identity Card, driving licence, wrist watch and one black pen were recovered. Recovered articles were taken into police possession vide separate memo attested by the witnesses. Shirt worn by the accused was got put off and left pocket of the front side of the shirt was got washed in a newly prepared solution in the same manner then the colour of the solution turned pink and that solution was transferred into another nip and was sealed with the seal bearing impressions 'BSG' by placing the signatory chit of Paramjit CRA-S-444-SB of 1998 -5- Singh. Shirt was also made into a sealed parcel and the same was taken into police possession vide memo attested by the witnesses. Then on search of the complainant copy of Jamabandi containing 27 leaves prepared by the accused on 27.6.1990, was recovered and the same was taken into police possession vide memos attested by the witnesses. Register of Jamabandi was also taken into police possession attested by the witnesses. Rough site plan was also prepared. Accused was arrested and after completion of investigation and after receipt of sanction to launch prosecution, challan was presented in the Court.
Accused was charge-sheeted under Section 13 (2) of the Act, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses. PW-1 Mohinder Pal, Clerk, Tehsil Office, Jalalabad, brought the service book of Krishan Lal-appellant Ex. P-1.
PW-2 Jait Kumar, Kanungo, stated that sanction Ex. PA was accorded by the Collector, Ferozepur, to launch prosecution against the accused.
PW-3 Amarjit Singh was the complainant and has reiterated his story disclosed to Inspector Babu Singh earlier.
PW-4 Harbans Singh, was joined as a shadow witness. He has also supported the version of complainant.
PW-5 Paramjit Singh was joined as official witness. He has also supported the version of the complainant.
PW-6 Babu Singh, DSP, was the Investigating Officer. PW-7 HC Sukhbir Singh, PW-8 Constable Harbhajan Singh and PW-9 HC Baldev Singh have tendered their affidavits Ex. PM, Ex. PN and Ex. PO, respectively. Report of the Assistant Director, CRA-S-444-SB of 1998 -6- Forensic Science Laboratory, Punjab, Ex. PQ was also tendered.
After close of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded wherein the appellant denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused was that in the year 1989 Amarjit Singh-complainant requested him to sanction mutation of the land on the basis of collusive decree in his favour and in favour of sons of his uncle, but he refused to oblige him after making certain objections. Complainant was nursing grudge against him. On account of this reason on 25.6.1990, Amarjit Singh came to his office and at that time Tek Chand and Kulwinder Singh were present in his office. Complainant threatened him by saying that mutation was not sanctioned on the basis of collusive decree in their favour rather raised certain objections, due to this reason false case was got registered against him when Jalour Singh, Ram Chand and Gurjant Singh were present.
In defence DW-1 Gurbax Singh, Record-keeper of the office of Sadar Kanungo, Ferozepur, brought the summoned record of village Chak Gulam Rasulwala. Ex. DC is the photocopy of the mutation for change of ownership of land from the name of Karam Singh, Kartar Singh and Gurbax Singh in favour of Amarjit Singh. On 12.2.1990, entry Ex. DC was made in the Roznamcha, by Krishan Lal Patwari. As per Ex. DC mutation was entered by the appellant on 12.2.1990 but certain objections were raised. Ex. DD is the copy of the mutation for transfer of land from the name of Karam Singh in favour of Gurcharan Singh and Manjit Singh. Mutation was entered on 12.2.1990 but the mutation was not got sanctioned by Krishan Lal-Patwari.
DW-2 Joga Singh Patwari, had brought the summoned record. Record of rapat Roznamcha No.806 dated 25.6.1990, was also CRA-S-444-SB of 1998 -7- brought and Ex. DF is the correct copy of the same.
DW-3 Kulwinder Singh stated that on 25.6.1990 at 12.00/1.00 p.m. he was present in the office of Krishan Lal, Patwari. In his presence, Amarjit Singh came to the office of the Patwari and threatened him that he had raised objections while entering mutation and it was not proper for him and he had to suffer for it. One Tek Chand was also present there. Patwari had made entry in the Roznamcha regarding this incident.
DW-4 Jalour Singh stated that on 27.6.1990, he was present in the office of Krishan Lal-appellant. Ram Chand and Amarjit Sing were also present there. Complainant tried to forcibly put some money in the pocket of Krishan Lal. After that he was caught hold by the Vigilance Department.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and going through the record, the appellant was convicted and sentenced vide orders, as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and have carefully gone through the evidence available on the file.
Prosecution story, was to the effect that to get 1/3rd share of the produce from the tenants copies of Khasra Girdawari and Jamabandi were required and to issue the documents, appellant had demanded illegal gratification. Illegal gratification was demanded in the presence of Harbans Singh PW-4, then payment by Amarjit Singh- complainant to the appellant. As per agreed signal police party came to the office of the appellant, then he was arrested. Marked currency notes were recovered from the appellant whereas defence version of the appellant was that in the year 1989 Amarjit Singh-complainant had CRA-S-444-SB of 1998 -8- requested him to sanction mutation on the basis of collusive decree in his favour and in favour of sons of his uncle, but he refused to oblige him after making certain objections on those papers. Amarjit Singh- complainant felt offended. On account of this reason on 25.6.1990, Amarjit Singh came to his office and at that time Tek Chand and Kulwinder Singh were present in his office and in their presence complainant had threatened the appellant to falsely implicate in a case because on the basis of collusive decree, mutation was not sanctioned. On 27.6.1990, complainant again came to the office of the appellant and at that time Jalour Singh, Gurjant Singh and Ram Chand were present. Complainant tried forcibly to thrust some money in the pocket of the appellant. Amarjit Singh was caught-hold and currency notes were thrown. In the meantime, police came and Krishan Lal was taken into the police custody. There was no demand of illegal gratification from the side of Krishan Lal-appellant. To convict the appellant prosecution was required to prove that there was a demand of illegal gratification and illegal gratification was paid accepted by the accused on demand. Lastly, the illegal gratification paid to the accused was recovered from his person and there was no motive to implicate the appellant. Whether prosecution story inspires confidence or not.
Amarjit Singh-complainant is the resident of village Chak Balochanwala. His father Gurbax Singh, his uncles late Karam Singh and Kartar Singh, owned land measuring 36 killas situated in the revenue estate of village Gulam Rasulwala. Shadow witness Harbans Singh is not from the village of the complainant or from village Gulam Rasulwala where the land of the complainant party was situated but he is the resident of village Kathgarh.
Amarjit Singh-complainant, in examination-in-chief stated CRA-S-444-SB of 1998 -9- that to get 1/3rd share of produce, copies of Jamabandi and Khasra Girdawari were required. On 26.6.1990, he had gone to the office of the appellant with a request to supply him the documents, then appellant demanded illegal gratification to prepare the revenue record. He was not in possession of the required currency notes. Appellant had also requested the complainant to visit his office on the next day to collect the documents against payment. Amarjit Singh-complainant had met Harbans Singh at the shop of Sham Lal and Krishan Lal and after that complainant and Harbans Singh had gone to their respective villages. On the next day i.e. 27.6.1990, Amarjit Singh-complainant and Harbans Singh had met near Shershah Wali Chowk, Ferozepur. After that they had gone to the office of Vigilance Bureau, Ferozepur, from where statement Ex. PB was sent to the police station, on the basis of which formal FIR was recorded. After that official witness was joined from the office of Executive Engineer, PWD Department, Ferozepur, but in cross- examination admitted that his uncle Karam Singh had died in the year 1990. Civil Suit was instituted. Copies of Jamabandi and Khasra Girdawari were to be obtained but this fact is not correct one because in the further lines of cross-examination Amarjit Singh admitted that suit was decided in the year 1989 or 1990. Krishan Lal-appellant was the Patwari of his village. Copies of judgment of the Court were handed over to Krishan Lal, Patwari for mutation purposes but objection was raised by the appellant, then they had met the Tehsildar and the mutation was sanctioned in the month of April, 1990. To file suit for getting share of produce from tenants copies of Jamabandi and Khasra Girdawari, were obtained. On 26.6.1990, Harbans Singh had met the complainant at the shop of Sham Lal and Krishan Lal. They had talked about for 15 minutes and from there Harbans Singh had gone to his CRA-S-444-SB of 1998 -10- village and he came back to his village. On 27.6.1990, they had met at Sher Shah Wali Chowk, Ferozepur. Accused was saying that he is being implicated falsely. On 25.6.1990, appellant had met the complainant. When he was misbehaved by the complainant party then entry was made by him in the roznamcha. Jalour Singh, Ram Chand and Gurjant Singh were present in his office at that time. So from the statement of Amarjit Singh-complainant one thing is clear that his father and uncles were owning land measuring 36 acres situated in the revenue estate of village Gulam Rasulwala. In the year 1990 Karam Singh had died. Civil suits were filed. Amarjit Singh, admitted that copies of Jamabandi and Khasra Girdawari were to be obtained. Civil suites were decided in the year 1989 or 1990. In the year 1989, Krishan Lal-appellant was the Patwari of his village. Copies of judgments and decree-sheet were produced before the appellant for mutation purposes but some objections were raised by the appellant. After that they had met the Tehsildar then mutation was sanctioned. When suit was filed in the year 1989 for the recovery of 1/3rd share of the produce from the tenants then the complainant had obtained the copies of Jamabandi and Khasra Girdawari. He had met Harbans Singh at the shop of Sham Lal and Krishan Lal on 26.6.1990. After that gone to his village and Harbans Singh had gone to his own village. Accused was raising raula regarding false implication. Suggestion was given to the witness that on 25.6.1990, he had misbehaved with the appellant and entry was made in the Roznamcha. Lastly, suggested that on 27.6.1990, Jalour Singh, Ram Chand and Gurjant Singh were present in the office of the appellant at about 12.10 p.m. Before the present occurrence complainant used to get copies of Jamabandi and Khasra Girdawari for getting 1/3rd share of the produce from the tenants. When copies of CRA-S-444-SB of 1998 -11- Jamabandi and Khasra Girdawari were supplied to the complainant without payment before the present occurrence then there was no idea to demand Rs.600/- as illegal gratification. According to the complainant demand was on 23.6.1990 whereas the payment of illegal gratification was on 27.6.1990. If on 23.6.1990, appellant was demanding illegal gratification then on the same day report should have been lodged. While appearing in the Court Amarjit Singh stated that first time on 26.6.1990, he had contacted the appellant for issuance of copies of Jamabandi and Khasra Girdawari, then appellant had demanded illegal gratification and agreed to supply the documents on next day i.e. 27.6.1990. In fact on the basis of collusive decrees request was made to the appellant to sanction mutation but instead of sanctioning the mutation, objection was raised by the appellant. Story regarding demand of illegal gratification on 23.6.1990 is not correct one because in Court Amarjit Singh-complainant stated that on 26.6.1990 he was requested to visit the office on the next day i.e. 27.6.1990 to collect the relevant documents but in the FIR allegation of the complainant was that on 23.6.1990 there was a demand of illegal gratification to prepare the copies of Jamabandi and Khasra Girdawari but later on the story was changed that the complainant party had agreed to visit on the next day with payment. In Court Amarjit Singh did not state a word that on 23.6.1990, appellant had demanded illegal gratification.
According to the defence version of the appellant there was no demand of illegal gratification on 23.6.1990, infact on 25.6.1990, Amarjit Singh-complainant came to the office of the appellant then misbehaved with him. Qua the incident dated 25.6.1990, entry was made in the Rojnamcha. Tek Chand and Kulwinder Singh were present in his office. Kulwinder Singh appeared as DW-3 and stated that on CRA-S-444-SB of 1998 -12- 25.6.1990 at 12.00/1.00 p.m. he was present in the office of Krishan Lal, Patwari. In his presence, Amarjit Singh came to the office of the Patwari and threatened him that he had raised objections while entering mutation and it was not proper for him and he had to suffer for it. One Tek Chand was also present there. Patwari had made entry in the Rojnamcha regarding this incident. Prosecution is not clear whether on 23.6.1990 there was a demand of illegal gratification or demand was on 25.6.1990. Charge was framed against the appellant that on 23.6.1990, he had demanded illegal gratification for issuing the copies of Jamabandi and Khasra Girdawari but in Court story was changed by saying that on 26.6.1990 there was no demand of illegal gratification, in fact on 23.6.1990, appellant demanded illegal gratification. Appellant instead of sanctioning the mutation on the basis of copies of the judgments and decree-sheets, had directed to collect the copies of Jamabandi and Khasra Girdawari on 27.6.1990, that means defence version seems to he reasonable one. On 26.6.1990, there was no demand of illegal gratification. After settlement to pay Rs.600/- as illegal gratification on 23.6.1990, complainant was directed to visit the office on the next day whereas the allegation of Amarjit Singh is that on 26.6.1990 there was a demand of illegal gratification. Then complainant was requested to visit the office on the next day i.e. on 27.6.1990 to collect the documents. On 26.6.1990, complainant had met the appellant for issuing copies of Jamabandi and Khasra Girdawari. Amarjit Singh- complainant in cross-examination admitted that on 26.6.1990, he had met the appellant. An entry was made in the Rojnamcha. Kulwinder Singh DW-3 stated that on 25.6.1990, at 12.00/1.00 p.m. he was present in the office of Krishan Lal, Patwari. In his presence, Amarjit Singh came to the office of the Patwari and there was some altercation CRA-S-444-SB of 1998 -13- amongst the parties. Patwari had made entry in the Rojnamcha regarding the incident. Entry was signed by him and Tek Chand. But according to the prosecution story when there was a demand of illegal gratification on 23.6.1990 then on 27.6.1990 raid was conducted. No case of the complainant that on 26.6.1990 he had contacted the appellant and there was some altercation. DW-2 and DW-4 are not related to the appellant. Ex. DC is the copy of mutation entered by the appellant. Entry is dated 12.2.1990. Ex. DC shows that some objections were raised by the appellant before sanctioning of the mutation. So when objection was raised by the appellant not to enter or sanction the mutation on the basis of collusive decree then Amarjit Singh-complainant had a grudge against the appellant. He was inimical towards the revenue Patwari.
Harbans Singh was joined as shadow witness but he is the resident of village Kathgarh and was Typist in Tehsil Complex, Jalalabad. Complainant was also the practicing lawyer. His village was within the jurisdiction of the appellant. PW-4 Harbans Singh stated that on 26.6.1990 he had met Amarjit Singh at the shop of Sham Lal and Krishan Lal. Then they had gone to their respective villages. On the next day i.e. on 27.6.1990, he had met Amarjit Singh near Sher Shah Wali Chowk. In cross-examination Harbans Singh has admitted that his uncle Arjan Singh had exchanged some agricultural land with Sodha Singh of village Kathgarh but on the basis of exchange deed no mutation was sanctioned. Village of Harbans Singh was within the jurisdiction of the appellant. But later on mutation entered was cancelled because area of the complainant party, namely, Harbans Singh was less than the area of Sodha Singh.
From the statement of Harbans Singh who was joined as CRA-S-444-SB of 1998 -14- shadow witness one thing is clear that he was also inimical towards the appellant because his uncle Arjan Singh was going to exchange land with Sodha Singh. His uncle Arjan Singh had exchanged land with Sodha Singh but on the basis of exchange-deed mutation was not sanctioned. One year earlier to the occurrence mutation was entered on the basis of exchange deed but there was objection from the side of the appellant because the area of the complainant party, namely, Harbans Singh was less than the area of Sodha Singh. After that proposal to exchange the land was cancelled. Statement of Harbans Singh shows that he was very much interested in the success of this case. Firstly, he is the resident of village Kathgarh. Amarjit Singh- complainant was resident of village Chak Balochanwala. Land of the complainant party was situated in the revenue estate of village Gulam Rasulwala and the appellant was the revenue Patwari of village Kathgarh.
Amarjit Singh-complainant was nursing grudge against the appellant because on the basis of collusive decree instead of sanctioning the mutation, some objections were raised. If before the present occurrence appellant can supply the copies of Jamabandi and Khasra Girdawari without payment then there was no idea to demand payment of illegal gratification on 23.6.1990 or 26.6.1990. According to the prosecution story, demand of illegal gratification was on 23.6.1990 and payment was made on 27.6.1990, whereas in Court story was changed that demand of illegal gratification was on 26.6.1990 and on the next day illegal gratification was paid to the appellant. On 26.6.1990, Amarjit Singh and Harbans Singh had met at the shop of Sham Lal and Krishan Lal but Ex. PB is silent that on 26.6.1990, Amarjit Singh had met Harbans Singh at the shop of Sham Lal and Krishan Lal CRA-S-444-SB of 1998 -15- and demand of illegal gratification was brought to the notice of Harbans Singh by Amarjit Singh. No case of the complainant that on 25.6.1990, he had gone to the office of the appellant and there was some altercation. When Harbans Singh was not known to the complainant then question is why he was chosen to join as shadow witness, when independent witnesses were available and no reason why anyone was not joined in this case.
In 1987 (1) RCR (Criminal) 672 "Gurnam Singh Vs. State of Punjab" case was under the Prevention of Corruption Act, 1947, then opined that giver of bribe and shadow witness are accomplice. Independent corroboration of their evidence should be sought for as a matter of prudence if not as a matter of law. Conviction based on evidence of said witnesses. Conviction was set aside.
In 2005 (4) RCR (Criminal) 310 "Amrik Singh Vs. State of Punjab" it was held that recovery of bribe money as a result of trap. Trap witnesses are interested witnesses concerned with the success of the trap and qualitatively their testimony is inferior to that of an ordinary interested witnesses. Statements of the interested witnesses is without any evidentiary value.
In the present case complainant, shadow witness and official witness are very much interested in the success of this case. Complainant and the shadow witness were inimical towards the appellant.
Third relevant witness is Paramjit Singh. He was the employee of PWD Department. Paramjit Singh, in cross-examination has admitted that earlier to the occurrence there was a raid to apprehend XEN. Bribe money was recovered from XEN. When there was a programme of raid by the Vigilance Department, then employees CRA-S-444-SB of 1998 -16- from the PWD Department were requested to join the police party. Paramjit Singh admitted that at the time of raid some persons were present in the office of the appellant and they were protesting why false implication. Appellant was directed to prepare jamabandi and copy of khasra girdawari. After that appellant was directed to sign the documents. Paramjit Singh, official witness was also very much interested in the success of this case because earlier there was a raid and his Boss was apprehended and bribe money was recovered and whenever there was a move to raid then employee from his Department was requested to join the police party. No explanation why no one was joined and why the employee of PWD Department was selected to join the police party. That means employees of PWD Department, Ferozepur, were always at the disposal of the Vigilance Department.
In (2005) 6 Supreme Court Cases 211 "Ganga Kumar Srivastava Vs. State of Bihar" in para No.20 Hon'ble Supreme Court observed as under:
"20. We must not forget that in a trap case the duty of the officer to prove the allegations made against a government officer for taking bribe is serious, and, therefore, the officers functioning in the Vigilance Department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt whether or not any money was paid to the public servant by way of bribe. It is also the duty of the officers in the Vigilance Department to safeguard for the protection of public servants against whom the CRA-S-444-SB of 1998 -17- trap case may have been laid."
In the present case, before the present occurrence Amarjit Singh-complainant used to get the copies of the revenue record without payment. On the basis of copies of judgments/decree-sheets appellant was directed to sanction the mutation. After mutation was entered by the appellant, the appellant had raised certain objections and this fact is clear from the note on the photocopy of the jamabandi Ex. DC and Ex.DD. Objection was raised by the appellant before the present occurrence. The complainant was very much inimical towards the appellant because on the basis of copies of the judgments and decree- sheets complainant was interested to get the mutations sanctioned but there was objection by the appellant.
Harbans Singh is from different village namely, Kathgarh. Harbans Singh was also inimical towards the appellant because his uncle Arjan Singh had exchanged land with Sodha Singh but on the basis of exchange-deed no mutation was sanctioned because the area of the complainant party, namely, Harbans Singh was less than the area of Sodha Singh. Harbans Singh, admitted that his uncle Arjan Singh had exchanged the land but mutation was not entered by the appellant one year earlier and later on mutation was cancelled because their area was less than the area of Sodha Singh. When Harbans Singh was not known to the complainant then the question is how the complainant contacted Harbans Singh resident of village Kathgarh.
Third relevant witness was Paramjit Singh, employee of the PWD Department, Ferozepur but he was also under the control of Vigilance Department because raid was conducted to apprehend the XEN, PWD Department. Bribe was recovered from the XEN and whenever there was a move to raid then employee from the office of CRA-S-444-SB of 1998 -18- XEN, PWD Department, Ferozepur, was requested to join the police party. Office of the Vigilance Department was within the abadi area and number of persons were present there but no explanation why independent witnesses were not joined and why the employee of PWD Department was requested to join the police party.
According to ruqa, after recording the statement of Amarjit Singh, Ex. PB the same was handed over to Constable Harbhajan Singh with a direction to reach the office of the appellant with file. But in Court Babu Singh, Investigating Officer, stated that Constable was sent to summon Paramjit Singh. Shopkeepers were also requested to join as independent witness but they have refused. Constable Harbhajan Singh was with the raiding party and was dropped at the bus stand of Jalalabad. That means story regarding sending ruqa through Constable Harbhajan Singh from the office of Vigilance Bureau at Ferozepur, is not correct one. Office of the appellant was in Bahmani Bazar, Jalalabad. Police Station Jalalabad was at a distance of one kilometre from the place of occurrence. Babu Singh, Investigating officer stated in Court that Jamabandi was not prepared on 27.6.1990 whereas other witnesses stated that on the same day appellant was directed to prepare the revenue record. Ex. P-9 is the Jamabandi taken into possession and the same was prepared on 27.6.1990. In case on 23.6.1990 or 26.6.1990, appellant had demanded illegal gratification to issue the revenue record then on the same day complainant should have approached the Vigilance Bureau and there was no idea to wait. Complainant stated that after the appellant had demanded illegal gratification then he had contacted Harbans Singh i.e. on 27.6.1990, Amarjit Singh and Harbans Singh, had gone to the office of Vigilance Bureau and this fact is clear from Ex. PB statement of Amarjit Singh but CRA-S-444-SB of 1998 -19- in Court Amarjit Singh stated that on 26.6.1990 appellant was contacted and when there was demand of illegal gratification and request was to visit the office on the next day then on the same day he had contacted Harbans Singh at the shop of Sham Lal and Krishan Lal. After contacting Harbans Singh at the shop of Sham Lal and Krishan Lal on 26.6.1990 then complainant and Harbans Singh had gone to their respective villages. On the next day i.e. 27.6.1990 complainant and Harbans Singh had met near Sher Shah Wali Chowk. When Harbans Singh was not from the village of the complainant and earlier to the occurrence he was not known to him then no explanation why Harbans Singh was chosen by the complainant.
As discussed earlier, Harbans Singh was inimical towards the appellant and due to this reason he was chosen to join the raiding party. Story regarding demand of illegal gratification and to contact the shadow witness is not genuine one.
In defence, DW-1 Gurbax Singh, Record-keeper of the office of Sadar Kanungo, Ferozepur, brought the summoned record of village Chak Gulam Rasulwala. Ex. DC is the photocopy of the mutation for change of ownership of land from the name of Karam Singh, Kartar Singh and Gurbax Singh in favour of Amarjit Singh. On 12.2.1990, entry Ex. DC was made in the Rojnamcha, by Krishan Lal Patwari. As per Ex. DC mutation was entered by the appellant on 12.2.1990. Certain objections were raised. Ex. DD is the copy of the mutation for transfer of land by Karam Singh in favour of Gurcharan Singh and Manjit Singh. Mutation was entered on 12.2.1990 but the mutation was not sanctioned. When objection was raised by the appellant then complainant and shadow witness felt offended.
DW-2 Joga Singh Patwari, had proved the copies of the CRA-S-444-SB of 1998 -20- rojnamcha Ex. DE and Ex. DF. Ex. DE was dated 25.6.1990 regarding exchange of land by Arjan Singh with Sodha Singh. Entries were made by the appellant to sanction the mutation on the basis of exchange of land. Ex. DF is dated 25.6.1990. Tek Chand and Kulwinder Singh were present in the office of the appellant. Ex. DF is to the effect that on 25.6.1990 in their presence Amarjit Singh-complainant came and had threatened the appellant because while entering the mutations as per judgments/decree sheets mutations were entered but certain objections were raised by the appellant. Earlier to that also appellant did not oblige him. While threatening the appellant Amarjit Singh had left the office. Ex. DF was signed by Tek Chand and Kulwinder Singh.
DW-3 Kulwinder Singh stated that on 25.6.1990 at 12.00/1.00 p.m. he was present in the office of Krishan Lal, Patwari with Tek Chand. In his presence, Amarjit Singh came to the office of the Patwari and threatened him that he had raised the objections while entering the mutation and it was not proper for him and he was to suffer for it. After threatening the appellant Amarjit Singh had left the office of the appellant then entry was made in the Roznamcha by the appellant regarding this incident which was signed by him.
Case of the complainant in Court is to the effect that on 26.6.1990 he had gone to the office of the appellant and demanded copies of the revenue record then the appellant had demanded illegal gratification and directed him to visit the office again on 27.6.1990 to collect the documents. Suggestion was given to Amarjit Singh that on 25.6.1990, he had gone to the office of the appellant and entry in this regard was made in the Roznamcha. Suggestion was denied by the complainant. Another suggestion was given to the complainant that on 27.6.1990, Jalour Singh, Gurjant Singh and Ram Chand at about CRA-S-444-SB of 1998 -21- 12.00/12.10 noon were present in the office when complainant had gone to the office of the appellant.
Harbans Singh, shadow witness admitted that when they had gone to the office of the appellant then at that time 3-4 persons were present in the office of the appellant. Paramjit Singh, PW-5 also admitted that 3-4 persons were present with the appellant in his office and persons present were arguing regarding false implication of the appellant. Appellant was directed to prepare the copies of Jamabandi and Khasra Girdawari and then made to sign. That means on 25.6.1990 complainant had gone to the office of the appellant. Appellant was threatened because appellant had raised objections when mutation was entered on the basis of judgment and decree. When the complainant had threatened the appellant in the presence of Tek Chand and Kulwinder Singh then entry was made in the Rojnamcha and the same is Ex. DF. At the time of raid some persons were also present in the office of the appellant and they had argument with the raiding party. Appellant was directed to prepare the copies of jamabandi and Khasra Girdawari and signed the same. Ex. P-9 is the copy of the jamabandi dated 27.6.1990 which was taken into police possession. Preparation of revenue record on 27.6.1990, shows that defence version seems to be more probable than the prosecution story.
Statement of the complainant was recorded at 10.45 a.m. Constable Harbhajan Singh was sent with the ruqa to the concerned police station but he had not gone to the concerned police station. Instead of going to the concerned police station Constable Harbhajan Singh remained with the party headed by Inspector Babu Singh, the Investigating officer. At bus stand of Jalalabad Constable Harbhajan Singh was dropped and sent to the police station. Police station was at CRA-S-444-SB of 1998 -22- a distance of only one kilometre from the place of occurrence. Sanction Ex. PA on the file is to the effect that on 23.6.1990, illegal gratification was demanded by the appellant and actual payment of illegal gratification was on 27.6.1990 but in court complainant stated that on 26.6.1990 he had gone to the office of the appellant, when he demanded illegal gratification and requested to visit the office again on the next day. On 26.6.1990, complainant had contacted Harbans Singh and planned to re-assemble again on the next day near Sher Singh Wali Chowk to visit the office of the Vigilance Department. All this shows that the prosecution story inspires no confidence. In fact when the appellant did not oblige the complainant and shadow witness then the complainant had gone to the office of the appellant on 25.6.1990 and threatened to teach him a lesson. After threat by the complainant entry was made in the Roznamcha and to support the contention of the appellant Kulwinder Singh and Jalour Singh appeared in defence.
In view of the above discussion, I am of the opinion that evidence on file was not properly scrutinized by the trial Court. Impugned judgment suffers from infirmity and illegality and the same is ordered to be set aside. Appellant is acquitted of the charges levelled against him.
Accordingly, appeal accepted.
September 23, 2010 ( JORA SINGH ) rishu JUDGE