Punjab-Haryana High Court
Joginder Singh vs State Of Punjab on 7 September, 2011
Author: L.N. Mittal
Bench: L.N. Mittal
Criminal Appeal No. 1300-SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 1300-SB of 2003
Date of decision : September 07, 2011
Joginder Singh
....Appellant
versus
State of Punjab
....Respondent
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. S.S.Salar, Advocate for the appellant
Mr. Namit Sharma, Advocate as Amicus-curiae for
the appellant
Ms. Gagan Mohini, Assistant Advocate General, Punjab
L.N. Mittal, J. (Oral)
Accused Joginder Singh stands convicted under sections 7 and section 13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and has been sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs 1000/- and in default thereof, to further undergo rigorous imprisonment for one month under section 7 of the Act and to undergo rigorous imprisonment for two years and to pay fine of Rs 1000/- and in Criminal Appeal No. 1300-SB of 2003 -2- default thereof, to undergo further rigorous imprisonment for one month under section 13(2) of the Act vide judgment and order dated 9.7.2003 by learned Special Judge, Ludhiana. Both the sentences have been ordered to run concurrently. Feeling aggrieved, convict Joginder Singh has filed the instant criminal appeal.
Prosecution case is that the accused was posted as Revenue Patwari of village Bhatha Thua. On 12.3.2001, complaint Nahar Singh approached the accused for obtaining copy of jamabandi and for entry of mutation for 3-4 marlas land purchased by him. The accused demanded Rs 1500/- as illegal gratification. It was reduced to Rs 1000/-. The complainant told the accused that he will come with the money on the next day. On way back, the complainant told Bir Singh about the said demand. On 13.3.2001, complainant Nahar Singh accompanied by Bir Singh went to the office of Vigilance Bureau, Ludhiana. Complainant made statement Ex. PH to DSP Sarup Singh regarding the aforesaid facts. Raiding party was formed. Bir Singh was made shadow witness. Nirmal Singh ETO and Rajwinder Singh Clerk of DDPO were joined in the raiding party. Demonstration was given to depict that colour of sodium carbonate solution turned pink on coming into contact with phenolphthalein powder. The complainant gave one currency note of Rs 500/- and five currency notes of Rs 100/- denomination. Phenolphthalein powder was applied to the currency notes. The same were returned to the complainant. Numbers of the currency notes were recorded in the memo. Statement Ex. PH with Criminal Appeal No. 1300-SB of 2003 -3- endorsement Ex. PH/1 made by the DSP thereon was sent to Police Station where FIR was registered. Raiding party went to village Bhatha Thua. The complainant and the shadow witness went to the office of the accused whereas the remaining members of the raiding party stayed behind a little away. The accused demanded bribe amount from the complainant who gave the tainted currency notes to him. The accused put the same in the pocket of his shirt and supplied copy of jamabandi to the complainant. Bir Singh shadow witness flashed necessary signal to remaining members of the raiding party who reached the spot and caught the accused. Hand wash of the accused in solution of sodium carbonate turned its colour to pink. The same was sealed in a nip. Tainted currency notes were recovered from the pocket of the shirt of the accused. Numbers thereof were found to be same as entered in the memo. Pocket wash of shirt of the accused also turned the colour of sodium carbonate solution into pink. The said solution was sealed in a separate nip. All the articles were taken into possession by the police. Rough site plan of the place of occurrence was prepared. Statements of witnesses were recorded. Sanction for prosecution of the accused was obtained. On completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of the accused under section 7 and section 13(2) of the Act.
Charge under section 7 read with section 13(2) of the Act was framed against the accused. He pleaded not guilty and claimed trial. Criminal Appeal No. 1300-SB of 2003 -4-
To prove its case, the prosecution examined nine witnesses. Bir Singh shadow witness PW1, Nahar Singh complainant PW2, Nirmal Singh, ETO PW3 and Sarup Singh, retired DSP PW4 have broadly stated according tot he prosecution version.
Hardial Singh, Bill Clerk, PW5 brought service book of the accused and also proved his posting as Halqa Patwari Bhatha Thua on the date of occurrence.
Constable Ataldev Singh, PW6 is formal witness. He stated that he had taken ruqa to the police station for registration of case. He also stated that he had deposited nips of sodium carbonate solutions in Forensic Science Laboratory without any tampering by anybody.
HC Gurbhej Singh, PW7 being formal witness tendered his affidavit in evidence.
HC Jagan Nath, PW8 stated that he was also in the raiding party. He took the case property from DSP Sarup Singh and deposited the same with MHC Gurbhej Singh without any tampering.
Surinder Singh, Naib Saddar Kanungo, PW9 proved sanction for prosecution of the accused.
The accused in his examination under section 313 Cr.P.C. admitted that he was posted as Revenue Patwari of village Bhatha Thua in March, 2001 but broadly denied all the other incriminating circumstances appearing against him in prosecution evidence and claimed to be innocent. The accused alleged that there was dispute of Gram Panchayat regarding Criminal Appeal No. 1300-SB of 2003 -5- land with Sardara Singh and his brothers (sons of Dalip Singh). Civil and criminal litigation was pending regarding the same. Khasra girdawari was in favour of Sardara Singh. The complainant who is Member Panchayat, Sarpanch and other Members Panchayat wanted khasra girdawari of the land to be changed in favour of Gram Panchayat, but the accused refused to oblige them and for this reason, he was implicated in this false case. The accused also stated that on 12.3.2001, he was away to Tehsil Office, Jagraon and was not present in the village.
In defence, the accused examined two witnesses.
Baljinder Singh, Patwari DW1, proved copy of mutation dated 1.3.2001 regarding purchase of land by complainant from Ajit Singh and also proved copy of report roznamcha kargujari dated 12.3.2001 regarding visit of the accused to Tehsil office.
Sadhu Singh, DW2 is Reader to Naib Tehsildar. He stated that the accused had come to Tehsil office on 12.3.2001 at about 10AM and Naib Tehsildar was not there at that time and came there at 3/3.30 PM. Till then, the accused remained present in the office of Naib Tehsildar and after arrival of Naib Tehsildar, submitted reply to show cause notice to the Naib Tehsildar.
Learned Special Judge, Ludhiana vide judgment and order dated 9.7.2003 convicted and sentenced the accused as already recorded hereinbefore. Feeling aggrieved, the convict has filed the instant criminal appeal assailing his conviction and sentence.
Criminal Appeal No. 1300-SB of 2003 -6-
I have heard learned counsel for the parties including Amicus- curiae and perused the case file with their assistance.
Learned counsel for the appellant and amicus curiae contended that the complainant did not require copy of jamabandi as there is no cogent evidence to prove that he has taken any loan and he could not even tell the date of taking loan from his commission agent. It was also submitted that the complainant admitted that there is litigation regarding Panchayat land between Panchayat and Sardara Singh etc. and khasra girdawari of the said land is in the name of Sardara Singh. It was argued that the accused has been falsely implicated in this case because he refused to change the khasra girdawari in favour of Gram Panchayat at the asking of complainant and others. It was also canvassed that Bir Singh PW1 has not stated about demand of bribe money by the accused and therefore, demand is not proved. Reliance in support of this contention has been placed on judgment of this Court in Dharam Pal v. State of Haryana, 1998(2) R.C.R. (Criminal)
295. It was also argued that the complainant admitted that he had not given copy of sale deed to Patwari. It was accordingly submitted that in the absence of copy of sale deed, mutation could not be entered by the accused. Learned counsel for the appellant also emphatically argued that no independent witness was joined in the raid and therefore, demand and acceptance of bribe is not proved from the statements of complainant and shadow witness only because they are interested witnesses as shadow witness is cousin of the complainant. Reliance has been placed on various Criminal Appeal No. 1300-SB of 2003 -7- judgments of this Court namely Tarlok Singh s/o Inder Singh, Line Superintendent, Patiala vs. the State of Punjab, 1983(1) R.C.R. (Criminal) 382; Dalip Singh vs. State of Punjab, 1988(1) R.C.R. (Criminal) 123; Gurcharan Singh vs. State of Haryana, 1993(3) R.C.R. (Criminal) 450; Hari Kishan vs. State of Haryana, 1997(2) R.C.R. (Criminal) 330 and Sarwan Singh vs. State of Punjab, 2004(1) R.C.R. (Criminal).
Counsel for the appellant also referred to contradictions in the statements of prosecution witnesses to contend that their statements are not reliable. It was also argued that the accused was not present in his office on 12.3.2001 when bribe was allegedly demanded for the first time because the accused was away to Tehsil Office, Jagraon on that day as stated by Sadhu Singh DW2. It was also contended that sanction order for prosecution of the accused is defective because Surinder Singh PW9 stated that proforma sanction order was also received from the office of Vigilance Bureau. It was accordingly submitted that sanction has been granted without due application of mind by the competent authority. It was also pointed out that Sarup Singh retired DSP PW4 stated that inside or outside of the pocket of the shirt of the accused did not have any mark of pinkish colour and the nip of hand wash was empty and bottom of the said empty nip gave milky look and not pinkish one. It was also argued that Reader to DSP who scribed complainant's statement Ex. PH and also had written memos along with an Criminal Appeal No. 1300-SB of 2003 -8- Inspector have not been examined as witnesses. The officer who signed report under section 173 Cr.P.C. has also not been examined as witness. The official who recorded formal FIR has also not been examined by the prosecution. The order vide which Nirmal Singh ETO was directed to join the raiding party has also not been produced. Some clerical errors regarding various dates were also pointed out in the impugned judgment of conviction. Date of FIR has been wrongly mentioned as 3.2.2001 instead of 13.3.2001. Similarly the date of first demand of bribe has been wrongly mentioned as 12.1.2001 instead of 12.3.2001.
On the other hand, learned State counsel contended that all prosecution witnesses have supported the prosecution case. Statements of shadow witness and the complainant are sufficient to prove demand and payment of bribe money to the accused. Their statements are corroborated by statements of Nirmal Singh PW3 and Sarup Singh PW4. Statements of these four witnesses also prove recovery of the tainted currency notes from the accused. This fact is further proved from hand wash and pocket wash of the shirt of the accused. It was also argued that there was no reason why prosecution witnesses would implicate the accused in a false case.
I have carefully considered the rival contentions. All the four material witnesses of the prosecution have fully supported the prosecution case. Their veracity could not be impeached in their lengthy cross- examination. On the other hand, these witnesses had no enmity with the accused and had no motive to implicate him in a false case or to depose Criminal Appeal No. 1300-SB of 2003 -9- falsely against him. Even the shadow witness and the complainant had no motive to do so notwithstanding litigation regarding Panchayat land between Panchayat and Sardara Singh etc. because the shadow witness and the complainant could have no personal interest or personal axe to grind in the said litigation regarding land of Panchayat. Moreover, Nirmal Singh ETO and Sarup Singh DSP would not have acted at the instance of the complainant and the shadow witness to implicate the accused in a false case. Statements of the complainant and the shadow witness are sufficient to prove demand and acceptance of bribe money by the accused. Even the shadow witness Bir Singh PW1 has stated that at the time of trap, the accused asked the complainant if he had brought the bribe amount and the complainant answered in the affirmative and then the complainant gave the tainted currency notes to the accused. This statement by Bir Singh is sufficient to depict the demand and acceptance of bribe money by the accused from the complainant. Similar statement has also been made by the complainant himself who has also stated specifically about the demand at the time of trap and also a day prior to it. Statements of these two witnesses are further corroborated by recovery of the tainted currency notes from the pocket of shirt of the accused immediately after the amount was paid to the accused by the complainant. The accused was caught at the spot. All the four material prosecution witnesses have stated about recovery of the tainted currency notes from the possession of the accused. Their statements in this regard are also corroborated by hand wash and pocket Criminal Appeal No. 1300-SB of 2003 -10- wash of the shirt of the accused. The fact that the pocket of the shirt did not have pinkish mark and the nip of hand wash solution was empty without having pinkish shade when produced in court during trial would not create any doubt about the prosecution case because Sarup Singh PW4 in whose statement the aforesaid facts have come, appeared in the witness box on 7.1.2003 i.e. about 1 year and 10 months after the occurrence. During this long period, the pinkish colour could have faded away particularly when the solution of hand wash evaporated from the nip. On the other hand, report of Forensic Science Laboratory produced in evidence proves that there were sodium ions, carbonate ions and phenolphthalein in both solutions of hand wash and pocket wash of the shirt of the accused. All this evidence strengthens the prosecution case.
It would also not be out of place to notice that even copy of jamabandi was given by the accused to the complainant after receiving bribe amount. The said copy of jamabandi Ex. PF was seized by the police at the spot. This piece of evidence also corroborates the prosecution case.
The contention that the complainant did not need copy of jamabandi, cannot be accepted because the complainant has stated that after the raid, he obtained copy of jamabandi later on and raised loan from his Commission Agent. No other evidence was required in this regard because obtaining of loan by the complainant was not an issue to be proved in the instant case. As regards non supply of copy of sale deed for entry of mutation, contention of appellant's counsel in this regard also cannot be Criminal Appeal No. 1300-SB of 2003 -11- accepted because the accused has himself produced copy of mutation Ex. D1 in defence to depict that he had already entered the mutation on 1.3.2001. However, when this copy of mutation is considered in the light of the contention of counsel for the appellant that the mutation could not be entered as the complainant had not supplied copy of sale deed, it becomes manifest that the accused after the raid made entry of mutation in back date to create evidence for his defence. Judgment of Hon'ble Supreme Court in Ganga Kumar Srivastava vs. The State of Bihar, 2005(6) JT 356 cited by counsel for the appellant is not applicable to the instant case. In that case, the accused allegedly demanded bribe for giving electricity connection to the complainant but evidence showed that electricity connection had already been given to the complainant before trap was laid. In the instant case, however, it is apparent from contention of counsel for the appellant himself that mutation Ex. D1 was entered later on and was ante dated. Moreover, copy of jamabandi was yet to be supplied to the complainant when the trap was laid.
Prosecution case cannot be discarded on the ground that no independent witness was joined in the raid. Nirmal Singh, ETO, PW3 is an independent witness. Even Sarup Singh DSP cannot be said to be interested or partisan witness because he had no malice or bias against the accused so as to implicate him in false case. Statements of these witnesses cannot be discarded merely because of their official status. Their statements are at par with independent witnesses in so far as credibility of Criminal Appeal No. 1300-SB of 2003 -12- their statements is concerned because they had no malice or motive against the accused. Another independent witness Rajwinder Singh, Clerk was also joined in the raiding party. For obvious reasons, he has not been examined as witness because four other witnesses of the raid have been examined. Demand and acceptance of bribe is fully proved from the statements of Bir Singh PW1 and Nahar Singh PW2 as corroborated by Nirmal Singh PW3 and Sarup Singh PW4 and also by other evidence noticed hereinbefore.
Counsel for the appellant referred to contradictions in the statements of prosecution witnesses regarding time of raid, regarding the person who did the writing work, regarding the person who took out currency notes from the pocket of shirt of the accused, regarding the person(s) who caught the accused by his arms or regarding recovery of copy of jamabandi from the possession of the accused or the complainant. However, statements of the prosecution witnesses cannot be discarded on the basis of so called contradictions. Some contradictions are bound to occur even in the statements of most truthful witnesses particularly with the passage of time. It happens on account of different powers of perception, observation and memory. In the instant case, examination-in-chief of Bir Singh PW1 was recorded on 8.10.2001 but his cross-examination was recorded on 25.11.2002 i.e. more than one year eight months after the date of alleged occurrence. Examination-in-chief of Nahar Singh PW2 was recorded on 11.9.2002 i.e. 1½ years after the occurrence. His cross- Criminal Appeal No. 1300-SB of 2003 -13- examination was recorded on 25.11.2002 i.e. more than one year eight months after the occurrence. Nirmal Singh was also examined on 25.11.2002 whereas Sarup Singh was examined on 7.1.2003 i.e. almost one year 10 months after the raid. Due to lapse of such long period, the witnesses could not be expected to remember the minute details regarding which contradictions have been pointed out. The witnesses cannot be expected to make parrot like verbatim identical statements or to give photographic or videographic version of all the minute details.
The plea of alibi on 12.3.2001 taken by the accused is completely frivolous and unsustainable. Less said the better about the testimony of Sadhu Singh DW2 in this regard. Sadhu Singh appeared in the witness box on 7.5.2003 i.e. about two years two months after the concerned date. He admitted in cross-examination that every day 2 to 4 Patwaris/Kanungos come to the office of Naib Tehsildar and he could not give the details of last 2 years as to on which date which Patwari had come to the Tehsildar. However, the witness was able to state that the accused had come to the said office on 12.3.2001 at 10.00 AM and stayed there till 3/3.30 PM. It is completely unbelievable that the witness could remember these details after expiry of more than two years. Reply Ex. D5 allegedly submitted by the accused on 12.3.2001 to the Naib Tehsildar also appears to have been prepared later on to create evidence. There is no endorsement of anybody on this reply. Neither Tehsildar made any endorsement on it nor any receipt register number has been written on it although Sadhu Singh Criminal Appeal No. 1300-SB of 2003 -14- admitted that receipt register is maintained in the office. There is also no evidence to depict that any action was taken on the basis of this reply. This reply has also not come from the proper custody i.e. from proper file. Sadhu Singh rather stated that it was lying in some miscellaneous papers. It is, thus, manifest that this evidence has just been created. It cannot be said that on 12.3.2001, the accused was not present in his office in village Bhatha Thua or that he was present in Tehsil Office, Jagraon.
Sanction order for prosecution of the accused is not defective in any manner. Surinder Singh PW9 stated that help from proforma sanction order was taken in preparing sanction order Ex. PX. It is, thus, manifest that proforma sanction order is not the basis of passing the sanction order. On the other hand, form of proforma sanction order might have been used, but sanction order contains all the details of the case depicting that the same was issued after due application of mind by the competent authority.
Examination of the officials who had scribed the statement of the complainant or various memos was not necessary because the same have been proved by the complainant and other witnesses. Similarly, report under section 173 Cr.P.C. and formal FIR have also been proved by Sarup Singh DSP PW4 and it was not necessary to examine the witnesses who signed the said documents.
Clerical errors in the impugned judgment of the trial Judge regarding date of FIR and date of first demand of bribe by the accused Criminal Appeal No. 1300-SB of 2003 -15- obviously can have no bearing against the prosecution case. These are errors committed by the trial Judge by his negligence in not correcting the same before signing the judgment. However, question regarding guilt or innocence of the accused has to be determined on the basis of evidence led by the parties and not on the basis of the aforesaid clerical errors.
For the reasons aforesaid, I find that prosecution has led sufficient, cogent and credible evidence to prove guilt of the accused beyond reasonable doubt. Accordingly, the impugned judgment of conviction is affirmed.
As regards quantum of sentence, the occurrence took place more than 10 years ago. Counsel for the appellant also stated that on account of conviction, the appellant has since been dismissed from service. Keeping in view all these circumstances, I am of the considered opinion that ends of justice would be met if the sentence of imprisonment for offence under section 13(2) of the Act is reduced to rigorous imprisonment for one year while maintaining the sentence of fine and the sentence of imprisonment in default thereof for the said offence and also while maintaining the sentence awarded by the trial Judge for offence under section 7 of the Act. It is ordered accordingly.
Both substantive sentences of imprisonment shall run concurrently.
With reduction in sentence as aforesaid, the instant criminal appeal stands disposed of accordingly. The appellant, who is on bail, shall Criminal Appeal No. 1300-SB of 2003 -16- surrender to his bail bonds or shall be arrested to undergo remaining period of sentence.
( L.N. Mittal )
September 07, 2011 Judge
'dalbir'