Punjab-Haryana High Court
Mehar Singh vs State Of Haryana on 8 January, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL APPEAL NO.1643-SB OF 2004 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JANUARY 08, 2013
Mehar Singh
.....Petitioner
VERSUS
State of Haryana
....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. S. S. Dinarpur, Advocate,
for the appellant.
Mr. C. S. Bakshi, Addl.A.G., Haryana,
for the State.
*****
RANJIT SINGH, J.
This appeal is directed against the order of conviction of the appellant under Section 7 and Section 13(1)(d) of the Prevention of Corruption Act. Upon his conviction, the appellant was sentenced to undergo RI for two years with a fine of Rs.500/- for an offence under Section 7. In default of payment of fine, he was further to undergo RI for six months. For conviction of an offence under Section 13(1)(d), the appellant was imposed a sentence of one year. Both the sentences were to run concurrently.
As per the prosecution case, one Ram Kishan had given an application on 1.4.2002 to Inspector, Vigilance alleging that CRIMINAL APPEAL NO.1643-SB OF 2004 :{ 2 }:
Foreman Mehar Singh has demanded an illegal gratification of Rs.500/- to deal with his application submitted to SDO Electricity Board, Chhachhrauli regarding low voltage. He being not inter5ested in paying this bribe had approached the Inspector Vigilance for trapping the culprit red handed. FIR was accordingly lodged. Inspector approached the Deputy Commissioner to depute a person for conducting a raid. Dharamvir Naib Tehsildar was detailed to join the raiding party.
The complainant gave five notes of 100/- rupees denomination and the list of currency notes was prepared which were also initiated by Tehsildar as well as by the Inspector. The notes were also treated with phenol-phthalein powder. The Inspector then briefed the complainant to hand over these treated currency notes on demand to the appellant. One Raj Kumar was appointed as a shadow witness and was instructed to give signals to the raiding party as soon as the illegal gratification was accepted by the appellant.
As per the arrangement noted above, the complainant and the shadow witness went to the room of the appellant in the office. The appellant statedly enquired from the complainant if he had brought the money to which he replied in the affirmative. The notes were kept in the handkerchief, which were handed over and were put in the pocket of the appellant. The shadow witness gave the desired signal to the raiding party and the police accordingly reached the room. The appellant was apprehended and the currency notes were recovered from the pocket of his trousers. The notes recovered were CRIMINAL APPEAL NO.1643-SB OF 2004 :{ 3 }:
found to be the same as was the list prepared. The appellant was made to wash his hands in the solution of sodium carbonate and it turned pink in colour. A nip was prepared. Handkerchief was also washed and the colour of the water again turned pink. So was the position when the notes were washed. All the three plandas so prepared were sealed and the seal was handed over to Naib Tehsildar Dharamvir. After obtaining sanction, the appellant was prosecuted.
In support of its case, the prosecution examined as many as eleven witnesses. A chemical report Ex.PQ was tendered by the prosecution. The defence also examined one witness.
The appellant when confronted with the incriminating circumstances and the evidence under Section 313 Cr.P.C. denied the allegations as made. The appellant further stated that one application was handed over to him for preparation of estimates and the sketch plan for placing the transformer in the area of village Panjeto. As per the appellant, he visited the spot and prepared the estimate and the sketch within one week and handed the same over to the SDO. The SDO had forwarded the same for approval to XEN. The Executive Engineer approved and sanctioned the same on 28.3.2001 and sent the same back to SDO concerned for taking necessary action. The appellant accordingly would plead that he has no concern with the installation of transformer and his work was confined only for preparation of the estimate and the sketch. The transformer in this case was installed by JE on 14.1.2003. The appellant accordingly would plead that he has no duty to do in regard CRIMINAL APPEAL NO.1643-SB OF 2004 :{ 4 }:
to installation of the transformer and he has been falsely implicated due to some ulterior motive which was beyond his knowledge.
In support of its case, the appellant has examined SDO, who stated that inhabitants of the village had given an application which was marked to the appellant to prepare estimates. The appellant submitted the estimates, which he had forwarded to the XEN. These were received with approval on 28.3.2001 and the execution for installing the transformer was done by JE.
The trial court on the basis of evidence led by the parties found the appellant guilty as already noticed and sentenced him to suffer the RI which is also noted above.
The counsel for the appellant has impugned the conviction of the appellant on the ground that the same is supported by the evidence of interested witnesses alone. The counsel further submits that the demand is not established from any evidence on record and the appellant was only concerned with preparing the sketch which he did and, hence, there is no viable evidence to connect the appellant with the demand and acceptance of this illegal gratification.
The appellant seems to have taken up a defence of complete denial. The recovery of the amount stood established and it would be difficult to accept the defence of denial as was pleaded and advanced even before the trial court. The star argument of the counsel for the appellant, however, is that the conviction is based on the evidence of interested witnesses alone. As per the counsel, even the shadow witness was Class-IV employee in the Vigilance CRIMINAL APPEAL NO.1643-SB OF 2004 :{ 5 }:
Department and, thus, he cannot be said to be an independent witness. Even if this plea is considered at its face value, then the appellant cannot wish away the evidence given by Dharamvir (PW-
10) who was detailed by the Deputy Commissioner to act as an independent witness during the raid. PW-10 has given a clear evidence of the complainant and shadow witness approaching the appellant and then handing over the tainted money to the appellant.
Reference is made to the evidence of the shadow witness to urge that there is some contradiction. Shadow witness indeed has stated that the money was handed over when the appellant came out of the office. In this regard, the court observed that this cannot be termed as a discrepancy as PW-10, at that stage was standing at a distance and may not have correctly observed as to what transpired between the appellant and the shadow witness. This discrepancy is not that material to put the version of PW-10 to doubt.
The counsel for the appellant would term this evidence to be hear-say evidence. I have not been able to appreciate how the evidence of PW-10 is a hear-say. He has deposed whatever he has seen or heard or observed. Except for stating that all the witnesses are interested witnesses, no ground is urged to challenge the evidence of these witnesses. The appellant could not point out any reason or a cause either for the shadow witness or for the independent witness or for that matter the complainant to lodge a false complaint against the appellant. Simply because the appellant has urged that he has been falsely implicated for unknown reasons is not be such a plea which would inspire confidence for having CRIMINAL APPEAL NO.1643-SB OF 2004 :{ 6 }:
accepted at the face value of the appellant.
The submission that the work and duty assigned to the appellant has already been completed and there was nothing pending for him to demand money again would not be in itself enough to discard the entire evidence coming on record that indeed the treated money was accepted by the appellant and was recovered from him. Whether the appellant was in a position to or had an authority to perform any function would be of no consequences so far as allegation of accepting the bribe is concerned. In any case, it is not such a case where the appellant had no role or a function to perform. He was required to prepare and submit the estimates. It cannot, thus, be said that he had no role to play and, thus, was in no position or had no cause to demand this bribe. It is also worth notice that there was one earlier application given on 20.5.2000 and transformer qua two persons had been installed. Three applicants were still facing the problem. In this regard, the court had rightly doubted the version of the SDO that the approval for installing the transformer had been received from XEN. The XEN when appearing as a witness admitted during his cross-examination that the application was also signed by two more persons other then the complainant. The maintenance of the transformer was the duty assigned to the Foreman being the Feeder Incharge. A preliminary report for changing the transformer was to be prepared by the Assistant Foreman. The finding is that there is no explanation as to what happened on the application which was approved by PW-2 XEN. The fresh transformer was installed on the second application CRIMINAL APPEAL NO.1643-SB OF 2004 :{ 7 }:
moved on 12.11.2002, meaning thereby that during the period from December, 2001 till the date of raid on 1.4.2002, the application remained un-actioned. There is sufficient evidence and material available on record to sustain the conviction of the appellant as has been recorded.
The counsel for the appellant has placed reliance on Sarwan Singh Versus State of Punjab, 2004(1) R.C.R. (Criminal) 368 and Amrik Singh Versus State of Punjab, 2005(4) R.C.R. (Criminal) 310 to plead that bribe giver is normally to be treated as accomplice. Plea is that independent witness is required to corroborate the testimony of the complainant and shadow witness.
For this proposition, support is also sought from Amrik Singh's case (supra). The correct rule in such cases is that if any of the witnesses are accomplices, who are `praticeps criminis' in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, then their evidence must be treated in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case. In a proper case, the court may even look for independent corroboration before convicting the accused persons.
As already noticed, even if the shadow witness is to be treated as an interested witness, there is no such allegation so far as presence of independent witness is concerned. Shadow witness cannot be treated as an interested witness only because he is an CRIMINAL APPEAL NO.1643-SB OF 2004 :{ 8 }:
employee of the Vigilance Department. He has no concern or interest with the complainant and in any case no such allegation would arise against PW-10, who was detailed by the Deputy Commissioner. He can neither be termed as partisan nor interested witness and rather was an independent witness, who has supported the case of the prosecution.
Correct it may be, as held in Sat Paul v. Delhi Administration, 1976 SCC (Cri) 160, that trap witnesses are interested witnesses concerned with the success of trap and qualitatively their testimony is inferior to that on an ordinary interested witness, but this would depend upon the character of the witness. It was observed in this case that the corroboration of such interested witness from the independent source may be essential where witnesses have a poor moral fibre with bad antecedents and have motive to remove the accused from their way. The court has apparently made such observation having regard to the character and antecedents of witnesses, which may have been found of poor moral fibre having bad antecedents and besides carrying a motive to remove the accused from their way. The corroboration of such witnesses, who were having such antecedents may have been insisted and they were the police officials, who were not held sufficiently reliable to base the conviction. There is no such infirmity either alleged or urged against PW-10. In Maha Singh Versus State (Delhi Admn.), AIR 1976 SC 449, it is held that there is no rule of law that even if a witness is otherwise reliable and independent, his association in a pre arranged raid about which he had become CRIMINAL APPEAL NO.1643-SB OF 2004 :{ 9 }:
acquainted, makes him an accomplice or a partisan witness. In the absence of anything to warrant a contrary conclusion, conviction is not untenable merely because it is based on the testimony of such a witness. Every witness of a raiding party cannot be dubbed as an accomplice perse or even as an interested witness in total absence of material justifying such an interference. Moreover, corroboration even if needed is not of every detail [See Major E.G.Barsay Versus State of Bombay, AIR 1961 SC 1762]. Otherwise the law on appreciating the evidence of interested witness is well settled. As held in Sarwan Singh Versus State of Punjab, AIR 1976 SC 2304: 1976 Cri LJ 362 it is not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such but the courts require as a rule of prudence not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses has a ring of truth such evidence could be relied upon even without corroboration. Witness is a person who is interested in the success of prosecution and, thus, his evidence would call for appreciation with caution and the same cannot discarded simply on the ground that it is an evidence of an interested witness. There is no merit in any of the plea raised in this appeal and accordingly the appeal is dismissed.
January 08, 2013 (RANJIT SINGH ) ramesh JUDGE