Punjab-Haryana High Court
Karambir vs State Of Haryana on 5 May, 2010
Criminal Appeal No. 2267 SB of 2007 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 2267 SB of 2007 (O&M)
Date of decision: 5-5-2010
Karambir ......... Appellant
Vs
State of Haryana .........Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present: Mr. Ajay Kaushik, Advocate, for
Mr. S.M. Sharma, Advocate, for the appellant
Mr. Raja Sharma, Assistant Advocate General, Haryana
HARBANS LAL, J.
This appeal is directed against the judgment/order of sentence dated 30.10.2007 passed by the court of learned Special Judge under the Prevention of Corruption Act, Panchkula, whereby he convicted and sentenced the accused Karambir to undergo substantive imprisonment for a period of 3 years and to pay a fine of Rs.5000/- under Section 7 of the Prevention of Corruption Act, 1988 (for brevity, the Act) and in default of payment of fine to further undergo imprisonment for five months and also sentenced him to undergo substantive imprisonment for one year and to pay a fine of Rs.1000/- under Section 13(1)(d)(i) of the Act and in default of payment of fine to further undergo simple imprisonment for one month and further sentenced him to undergo substantive imprisonment for one year and to pay a fine of Rs. 1000/- under Section 13(1)(d)(ii) of the Act and in default of payment of fine to further undergo simple imprisonment for one Criminal Appeal No. 2267 SB of 2007 (O&M) 2 month with a further direction that all the substantive sentences shall run concurrently.
The facts in brief are that Jai Singh made complaint to the Superintendent of Police State Vigilance Bureau, Panchkula containing the allegations that the accused Karambir had demanded Rs.500/- for continuing 'kundi' electricity connection in the house of his employer Sanjeev Sayal. The usual formalities were observed. The raiding party including Satish Kumar Tehsildar, Panchkula proceeded to the spot. Jai Singh complainant and the shadow witness Nihal Singh went to Sanjeev Syal's house under construction situated at Morni over the hill top. On receipt of appointed signal from the shadow witness, the raiding party reached the spot. The Investigator apprehended the accused and recovered one currency note in the denomination of Rs.500/- from the pocket of his shirt. The accused was arrested. After completion of investigation, the charge-sheet was laid in the court for trial of the accused.
The accused was charged under Section 7 and 13(1)(d)(i) and 13(1)(d)(ii) of the Act to which he did not plead guilty and claimed trial. In order to substantiate its allegations against the accused, the prosecution examined PW-1 Manjit Singh ASI, PW-2 Gurcharan Singh EHC, PW-3 Ravinder Kumar ASI, PW-4 Jagseer Singh Constable, PW-5Ajmer Singh Executive Engineer, PW-6 Satish Kumar Tehsildar, PW-7V.S.Dahiya, PW-8 Rajinder Pal DSP, PW-9 Jai Singh, PW-10 Nihal Singh Inspector (shadow witness), PW-11 Karta Ram Inspector and closed its evidence.
When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution Criminal Appeal No. 2267 SB of 2007 (O&M) 3 evidence against him and pleaded innocence as well as false implication. He came up with the following plea:-
"A false case has been registered against me and the witnesses have deposed falsely. I was forcibly lifted from the market of village Morni and the present false case has been illegally planted upon me. I had never demanded, nor accepted any illegal gratification from complainant Jai Singh. The police officials had implicated me in the present case with ulterior motive as they had a bill pending to the tune of Rs.1,30,000/- towards the electricity and being an employee of the electricity department, I had been time and again visiting their offices to ask them to make payment or their connection would be disconnected."
In his defence, he examined DW-1 Shankar Dass, UDC, UHBVNL, Barwala, DW-2 Prem Chand, Naib Tehsildar, Sub Tehsil, Morni and DW-3 Mahender Singh ASI Incharge Police Post Morni and closed his evidence.
After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
On behalf of the appellant, it has been strenuously urged that Jai Singh complainant in this case has not supported the prosecution case. Criminal Appeal No. 2267 SB of 2007 (O&M) 4 Besides this, he has denied of his having made the complaint Ex.PA/1 to the Superintend of Police, Vigilance Panchkula. He has stated in no uncertain terms that his signatures were obtained on some blank papers and no raid was conducted in his presence at the place of the alleged occurrence. From a bare perusal of his statement, it transpires that the prosecution case is just like a tent without the central pole. The appellant has been falsely implicated by the Vigilance Bureau, Panchkula at the instance of Tehsildar, Sub Tehsil Morni and officials of Police Post Morni as they were using electricity by making 'kundi' connection unauthorizedly and illegally. As per record, only one meter No. NV 21/22 was installed in the premises of Sub Tehsil Morni and the same was disconnected by the Department of the appellant on 30.3.2007 due to nonpayment of electricity bill amounting to Rs.1,47,927/-. The photographs Ex.P-3 to Ex.P-7 and Ex.P.9 placed on record by the appellant in his defence depict the 'kundi' connection put by the office of the Tehsildar as well as Police Post Morni. The above said 'kundi' connection is still being used by the said office at Morni. The appellant had been telling to stop 'kundi' connection and resultantly, he was roped in the present case. On perusal of the site plan Ex.PD, it follows that house of Mr. Sanjeev Syal is abutting the only road leading towards it, whereas Satish Kumar PW-6 in his cross-examination has stated that the said house is located at a distance of 150 metres away from the road and is situated on the hill and one can reach the said house by climbing hill. Furthermore, as emanates from the cross-examination of the said witness, when they reached at the spot, the accused was not there and he came later on. This story seems to have been concocted for the reason that it is not Criminal Appeal No. 2267 SB of 2007 (O&M) 5 possible for a person to commit crime in front of the Law Enforcement Agency. The false implication of the appellant was intentional and pre- planned. PW-7 V.S.Dahiya, S.D.M. Panchkula and PW-10 Nihal Singh Inspector have admitted in their cross-examination that a raid was also conducted prior to the present one and the same could not be materialized. It is in the evidence of Nihal Singh Inspector PW-10 that one raid was conducted on 20.7.2006 and the second one was made on 21.7.2006, whereas the Investigator Karta Ram Inspector PW-11 has deposed that they had conducted only one raid i.e. on 21.7.2006.
To tide over these submissions, the learned State counsel maintained that the recovery of tainted currency notes from the pocket of shirt worn by the appellant at the time of raid has been effected and thus, the charged offence stands well established. This contention merits rejection for the reasons to be recorded hereinafter.
It is in the evidence of Jai Singh complainant PW-9 that "the accused present in the Court today neither demanded Rs.700/- from him to continue the connection, nor he has disconnected the electricity connection in the aforesaid house." When he was subjected to cross-examination by the learned Public Prosecutor for the State, no material favourable to the prosecution could be wrenched out. When cross-examined by the learned defence counsel, this witness stated that " I was called to the Police Station by the Investigator to join the investigation on 18.7.2006 and my signatures over one blank paper were obtained there." This evidence speaks volumes of the fact that this witness has dealt a coup-de-grace to the prosecution edifice. The shadow witness Nihar Singh Inspector PW-10 has testified that Criminal Appeal No. 2267 SB of 2007 (O&M) 6 "the complainant went to the top of the hill at the house of Sanjeev Sayal. The complainant gave a tainted money to the accused Karambir on demand. After the transaction, the complainant passed the appointed signal to me which in turn I passed on to the other members of the raiding party. xx xx xx I had not overheard the conversation between the complainant and the accused clearly." It is apt to be borne in mind that as per version proffered by the prosecution, the accused had demanded and accepted the tainted currency notes in the presence of the shadow witness whose afore extracted evidence clearly indicates that neither he went alongwith Jai Singh nor the bribe money was demanded and accepted in his presence nor he had clearly heard the conversation between the complainant and the accused. Thus, palpably his testimony too strikes a death knell to the prosecution case. When this witness Nihal Singh was cross-examined by the learned defence counsel, he has deposed that "We had carried out the raid earlier also but the accused was not apprehended. First day the accused had run away by seeing the raiding party, but the second day we had started at 3.00 P.M. from Panchkula to Morni and on that day i.e. 21.7.2006 the accused was apprehended." This evidence can be well construed to mean that the complainant as well as officials of the Vigilance Bureau were after the appellant for the reasons best known to them. This witness Nihal Singh being an official witness could not be expected to resile from the prosecution version, if the events had verily occurred in the manner as suggested by the prosecution. If the appellant was running away, then by no stretch of speculation, he could be expected to have demanded or accepted the bribe money from Jai Singh. The above evidence gives an inkling that Criminal Appeal No. 2267 SB of 2007 (O&M) 7 the officers/officials of the Vigilance Bureau were all out to implicate the appellant in this false case. The above referred evidence leaves no room for doubt that in fact the complainant and the said officers/officials were all outto rope in the accused in this case. The principal ingredients of demand and acceptance of bribe money in this case are lacking. In V.Venkata Subbarao Vs. State represented by Inspector of Police, A.P. 2007(1) Recent Criminal Reports(Criminal)519 the Hon'ble Supreme Court has laid down that "In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved."
In Suraj Mal Vs. State (Delhi Administration), 1979(4) Supreme Court Cases 725 the Apex Court took the view that "mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. This view has also been followed by the Supreme Court in Banarsi Dass Vs. State of Haryana 2010(2) Recent Apex Judgments 471.
In Satpal Singh (died) through L.Rs Vs. State of Punjab, 2004(1) Recent Criminal Reports(Criminal) 830(P&H), recovery of bribe money was proved. The accused was working as Patwari. He had demanded Rs.200/- from the complainant for supply of copies of jamabandi. Criminal Appeal No. 2267 SB of 2007 (O&M) 8 A trap was laid and Rs.200/- were recovered from the accused. One of the PW was given up as won over. The shadow witness had stated that no demand was made in his presence. This Court was pleased to hold that the essential ingredient of Section 13(2) of the Prevention of Corruption Act, 1988 was missing. As ruled by the Apex Court in re:Meena (Smt.) wife of Balwant Hemke Vs. State of Maharashtra 2000(2) Recent Criminal Reports(Criminal) 661 mere recovery of the currency notes and positive result of the phenolphthalein test is not enough to establish the guilt of the appellant on the basis of perfunctory nature of materials and prevaricating type of evidence. In Pritam Singh Vs. State of Haryana 1992(3) Recent Criminal Reports(Criminal) 139 (P&H) also there was no evidence of shadow witness to the effect that the accused had made a demand. This court held that the complainant was not truthful. In Banshi Lal Yadav Vs. State of Bihar AIR 1981 SC 1235, in context of Section 4(1) of the Prevention of Corruption Act, 1947, the Supreme Court has held as under:-
"Before presumption can be raised, the burden is on the prosecution to prove that the accused has accepted or obtained, or has agreed to accept or attempted to obtain, for himself any gratification other than legal remuneration etc."
As testified by Karta Ram Inspector PW-11 Investigator " I carried out the personal search of accused Karambir and from the left pocket of his shirt, the tainted currency note was recovered." He has no where stated that before he carried out personal search of the appellant, he had offered his personal search to him. In State of Punjab Vs. Kushal Singh Pathania 2004(4) Recent Criminal Reports (Criminal) 498 it has Criminal Appeal No. 2267 SB of 2007 (O&M) 9 been held that "if the Police Officer failed to offer himself for the search conducted by the accused, then the search conducted on the accused is apparently illegal and acquittal is bound to follow." An identical view has been taken in Karnail Singh Vs. State of Punjab 2009(1) Recent Criminal Reports(Criminal)403. In view of the rule laid down in these authorities, there being no evidence to the effect that before he made personal search of the accused, the Investigating Officer had offered his own personal search to the accused, the search conducted on the accused is palpably rendered illegal.
As surfaces in the cross-examination of Karta Ram (sic) "we and the accused reached the spot at the same time" whereas Satish Kumar Tehsildar PW-6 has stated in his cross-examination that "when we had reached the spot, the accused was not present there. He has come later on." Axiomatically, both these PWs are in sharp contradiction on a very material point. Satish Kumar(sic)has deposed that " the accused had handed over the tainted currency notes to the Investigating Officer after taking out from his pocket" whereas Karta Ram Investigator has stated that he carried out personal search of accused Karambir and from left pocket of his shirt, the above stated currency notes were recovered. Again these PWs are discrepant and contradict each other on a material point. These incongruities further weakens the story projected by the prosecution. Satish Kumar PW has regretted his inability to tell the number of currency notes recovered from the appellants. This fact further makes makes me to look upon the prosecution case with grave suspicion. This witness has also stated that "it is correct that shirt is without any stain, but at that time it turned dark pink." Criminal Appeal No. 2267 SB of 2007 (O&M) 10 This further renders the prosecution case suspect.
The appellant has come up with a specific plea that the police officials had implicated him in the present case with ulterior motive as they had bill pending to the tune of Rs.1,30,000/- towards electricity department. Being an employee of electricity department I had been time and again visiting their office and asked them to make payment or their connection would be disconnected. It is in the evidence of DW-1 Shankar Dass, Upper Division Clerk, UHBVNL, Barwala who has deposed from the official record that "Presently,as per our record, the electricity connection of Tehsildar, Morni stands disconnected from dated 30.3.2007and presently he is in arrears of electricity bill amounting to Rs.1,47,928/-. The electricity bill is being sent to him regularly but he does not respond to our bills. The copy of ledger showing the arrears of electricity bills due against Tehsildar Morni is Ex.D-1." It is in his cross-examination that "the orders of disconnecting the electricity supply and removal of the meter were passed to J.E. and the meter was removed by the J.E. himself." It is in the evidence of DW-2 Prem Chand Naib Tehsildar, Morni that "The electricity meter stands issued in the name of Naib Tehsildar, Morni. The electricity supply from our meter is also being supplied to Police Post and Treasury. A sum of Rs.1,47,928/- was due on account of electricity consumption. After that electricity connection was disconnected. xx xx xx I have seen photographs Ex.D-3 to Ex.D-11. The negatives of the same are Ex.D-12 to Ex.D-20. I cannot say whether these photographs belong to our building or not." To me, it appears that this witness has deliberately given an evasive reply to this specific question. DW-3 Mahender Singh ASI, has stated as Criminal Appeal No. 2267 SB of 2007 (O&M) 11 under:-
" I am posted as Incharge Police Post Morni since 15.6.2007. Prior to that I was posted only in the year 2004 for about four months. I cannot say from where at present we are drawing the electricity. We do not have any independent electricity meter in the Police Post. We are four police officials staying in Police Post Morni. One room is being used as living room and the other room is used for official purpose. I do not know whether any electricity bill is pending for payment against Naib Tehsildar Morni. I do not know from where presently the Naib Tehsildar Morni is drawing the electricity. I cannot say whether the Naib Tehsildar Morni is drawing electricity illegally or in a regular manner. It is correct that the computer and other appliances of the Tehsil Office are being run regularly by the office of Naib Tehsildar. I have seen the photographs Ex.P-3 to Ex.P-6 in which the electricity is being drawn by kundi connection. I have seen Ex.P.9. It pertains to the outer wall of Naib Tehsildar Office at Morni. I have seen photograph P-7. It also pertains to the Western side wall of Naib Tehsildar Office."
The above discussed evidence also competes in probability with the prosecution version which thus fails to inspire confidence.
As a sequel of the above discussion, this appeal is accepted. The judgment/order of sentence passed by learned Special Judge under the Prevention of Corruption Act, Panchkula is set aside. The appellant Criminal Appeal No. 2267 SB of 2007 (O&M) 12 Karambir is acquitted of the charged offence by giving him benefit of reasonable doubt.
Since the appeal has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of.
(HARBANS LAL) JUDGE May 5, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No