Punjab-Haryana High Court
Jyoti Ram vs State Of Haryana on 24 December, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 760-SB of 2005
Date of decision: December 24, 2010
Jyoti Ram
.. Appellant
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Shailender Kashyap, Advocate for the appellant.
Mr. Gurvinder S. Sandhu, AAG, Haryana for the respondent.
A.N. Jindal, J
Jyoti Ram accused- appellant (herein referred as, 'the accused')
was working as Platoon Commander in the Home Guard. He is alleged to
have received Rs.500/- as illegal gratification for extending duty of the
complainant for further 89 days, therefore, on raid he was apprehended and
on trial, vide judgment dated 7/8.4.2005 he was convicted and sentenced to
undergo rigorous imprisonment for one year and to pay fine of Rs.2500/-
under Section 7 of the Prevention of Corruption Act, 1988 (for brevity, 'the
Act') and further rigorous imprisonment for two years and to pay fine of
Rs.2500/- under Section 13 (2) of the Act.
The complainant being the resident of Ambala City was
working as volunteer in the Home Guard at Ambala since 1.7.2000. He was
on temporary job of 89 days and after break of one day, his duty could be
extended. The accused was the Commander in the Home Guard and he used
to keep the account regarding employing of the Home Guards and
terminating them. He had set up a convention that on completion of 89
days, the same volunteer could be taken back provided he paid Rs.2000/- as
bribe for getting the job for 89 days. Some amount used to be taken by him
in advance and the remaining amount used to be deducted by him from the
salary of the volunteer. The complainant had joined his duty on 1.4.2001
for which he had given Rs.800/- in advance and the remaining amount of
Rs.1000/- was deducted by him from his salary. The accused was
demanding Rs.500/- as advance money for extending his duty w.e.f.
Criminal Appeal No. 760-SB of 2005 -2-
***
1.7.2001 and the remaining was to be deducted from his salary. Since the complainant was reluctant to pay the amount, he reported the matter vide complaint Ex.PJ to the Superintendent of Police, SVB, Ambala, who sent the same to the police station on the basis of which FIR Ex.PO was registered. After moving an application Ex.PF before the District Magistrate, O.P. Ranga (PW6), DRO Ambala was directed to join him as official witness. The Investigating Officer appointed Raj Kumar (PW11) as shadow witness. The raid was organized, the complainant was directed by the Investigating Officer to pay the tainted money to the accused on demand and after acceptance of the same, Raj Kumar was to give signal to the police party. After completing all the formalities with regard to submerging of the five currency notes in the phenolphthalein powder, the raid was conducted and the accused was caught red handed. On search, the tainted money was recovered from the right pocket of his trouser. On comparison the number of the currency notes tallied with the list prepared by the Investigating Officer. Solution of the water and sodium carbonate were prepared in which hands of the accused were got washed, which became pink. The said solution was poured in a nip. Again the same procedure was followed and the currency notes were washed. The said solution also became pink and it was poured in a separate nip. Again the solution was prepared and the pocket of the trouser was washed in the said solution, the colour of the solution again became pink. The trouser was also converted into parcels so also the three nips containing the solution. All these parcels were sealed with the seal bearing impression "SP" and "SVB" and the same were handed over to DRO. The recovered currency notes were also converted into parcels and were taken into possession. On completion of the investigation challan against the accused was presented in the court.
On finding a prima facie case under Section 7/13 (2) of the Act, the accused was charged to which he pleaded not guilty and opted to contest.
In order to substantiate the charges, the prosecution examined Jagdish Chander (PW1), Rajesh Kumar (PW2), C. Abhey Ram (PW3), HC Moses John (PW4), C. Ramesh Chand (pW5), DRO Om Parkash Ranga (PW6), Complainant Arun Kumar (PW7), C. Ram Saran (PW8), Krishan Criminal Appeal No. 760-SB of 2005 -3- *** Lal (PW9), DSP Pala Ram (PW10), Raj Kumar Shadow witness (PW11) and Inspector Mam Chand (PW12).
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further explained as under :-
"I am innocent. This case has been falsely foisted against me. Nothing was recovered from my possession. In fact Arun Kumar and Raj Kumar were forcing me to re-engage them on duty after the break in July/August, 2001 and he had not accepted their request. There are hundreds of the volunteers to whom we assign duties routine-wise, therefore, I did not accept their request for re-engaging for service. Otherwise also there were complaints from the office of Superintendent of Police Ambala against the illegal activities of Raj Kumar and Arun Kumar. On the basis of those complaints I withdrew the duty of Arun Kumar and Raj Kumar. As such, Raj Kumar was hostile towards me and he became witness against me. I neither demanded or accepted any amount of bribe from Arun Kumar nor I deducted anything from his salary."
In defence, the accused examined HC Rajinder Kumar (DW1) who stated that a letter was written by the Superintendent of Police Ambala to the Commandant Home Guards, Ambala for the transfer of Randhir Singh, Gurdarshan Singh, Karamjit Singh, Rakesh Kumar and Raj Kumar as they were not performing their duties properly. Platoon Commander Krishan Lal (DW2) has stated that on 28.10.1998 letter Ex.DC was received from the office of the Superintendent of Police, Ambala for transferring the aforesaid Home Guards. He has also proved the letter Ex.DD, vide which Jyoti Ram had removed Raj Kumar from his duties.
The trial resulted into conviction.
In order to assail the prosecution version, learned counsel for the appellant has urged that neither any independent witness was joined nor the evidence of the official witnesses as were examined is not worth Criminal Appeal No. 760-SB of 2005 -4- *** reliance. No witness from the office where the raid was conducted was also joined. There is no proof of initial demand of Rs.500/- which is stated to be accepted by the accused. The case is the result of previous rivalry between Raj Kumar and the accused. There are serious discrepancies in the statements of the witnesses, therefore the conviction of the accused cannot be sustained.
To the contrary, learned Assistant Advocate General, Haryana while taking me through the statements of the witnesses has contended that the court is not to weigh the quantity of the evidence but it is the quality which is to be noticed. Joining of the independent witness is not a mandatory requirement but it is joined only to give more authentic corroboration to the official witnesses. However, the testimonies of the official witnesses if they are consistent in their statements cannot be ignored for their status as such. The demand and acceptance of money stand duly established in the instant case.
Having pondered over the rival contentions, it appears that the prosecution has been successful in establishing the case against the accused beyond any reasonable doubt. The accused was Platoon Commander. Admittedly, he was appointing volunteers for providing them duty for 89 days and they were to be re-employed after the break of one day. However, he has stated that it was not hard and fast rule that every volunteer was to be taken back on duty even in case of requirement. It has also not been denied by the accused that the volunteers were used to post on guard duty in various departments like HEFED, FCI etc. On conjoint reading and appreciation of the evidence of Arun Kumar (PW7), Raj Kumar (PW11) and Gazetted Officer O.P. Ranga (PW6), it appears that the accused has been exploiting his position and made it a rule or convention that he could accommodate those volunteers and assign duty beyond 89 days if he satisfied his lust for money. Arun Kumar (PW7) in his complaint Ex.PJ dated 1.8.2001, pursuant to which the law was set in motion has specifically stated that he was taken on duty w.e.f. 1.4.2001 on payment of Rs.800/- and the remaining amount of Rs.1000/- was deducted by the accused from his salary. As such, he had paid Rs.1800/- to the accused. Now he has not been allowed to join duty w.e.f. 1.7.2001 and he is demanding Rs.500/- and the Criminal Appeal No. 760-SB of 2005 -5- *** remaining amount was to be deducted by the accused from his salary. No doubt, Arun Kumar has repeated about the method of corruption as set up by the accused and he has not specifically stated that the accused was demanding Rs.500/- from him, but from the tenor of his statement it could easily be inferred that he wanted to convey that the accused was demanding Rs.500/- as usual for joining him on duty and the remaining amount was to be deducted from his salary. Further more, acceptance and recovery of Rs.500/- from the accused by the Investigating Officer in the presence of the witnesses traces back to the demand raised by him. This court cannot lose sight of the fact that in cases where the accused draws a line and makes it a convention that he could accommodate the person only on payment of certain amount on account of illegal gratification, then previous demand of such money need not be specifically proved. Eventually, it could be held that since the witnesses disclosed about the convention set up by him and his routine nature and accordingly money was accepted and recovery was effected from the accused, therefore, the previous demand was not specifically required to be proved.
As regards the other contention that no independent witness was joined, it is observed that on receiving of complaint Ex.PJ, the Investigating Officer Mam Chand (PW12) was not in a hurry to raid the accused. He moved an application before the District Magistrate for affording a Gazetted Officer to join as a witness to authenticate the raid. Consequently, O.P. Ranga (PW6) was directed to join as a witness to the recovery. He also nominated Raj Kumar (PW11) as a shadow witness, therefore, further necessity to join an independent witness was only to multiply the evidence. It is the quality of the evidence which is weighed and not the quantity. It is not the rule of law but of prudence that independent witness should be joined. In any case, the independent witness, if not joined is hardly sufficient to discard the prosecution version as a whole. O.P. Ranga (PW6) had no axe to grind against the accused. He has categorically stated that on 1.8.2001 he along with the raiding party went to the premises of the accused. The complainant went inside the office of the accused and shadow witness Raj Kumar followed him. The complainant handed over five signed currency notes to the accused which he accepted Criminal Appeal No. 760-SB of 2005 -6- *** and then put the same into the pocket of his trouser. The hands, currency notes and the pocket of the trouser were washed by the Investigating Officer in the solution which turned pink. The raid succeeded as planned. Notwithstanding the fact that Raj Kumar was some what annoyed with the accused as some complaint was made against him, yet, the evidence of the Investigating Officer, Gazetted Officer and the complainant cannot be brushed aside. However, as regards the testimony of Raj Kumar, not a word has been suggested by the accused to him that he did not join the raiding party.
The learned counsel for the appellant has further contended that the prosecution case is replete with the discrepancies. He has referred to some discrepancies including that Rajesh Kumar (PW2) states that the officer of the Platoon Commandant is situated at Preet Nagar, whereas C. Abey Ram (PW3) states that the same was situated in Vikas Vihar. The witnesses have stated different time with regard to receiving of the complaint and also reaching in the office of the accused. The complainant Arun Kumar (PW7) has stated that the accused ,was handed over the amount of illegal gratification in the store room, whereas, the other three material witnesses state about the presence of the accused in his office. The complainant Arun Kumar states about the giving indication/signal to the Investigating Officer whereas Raj Kumar does not state about giving of the signal. DSP Pala Ram states that he was never associated in the investigation of the case whereas the complainant states otherwise. While referring to these discrepancies, it has been urged that the prosecution case cannot be said to be proved beyond reasonable doubt.
Having perused the aforesaid discrepancies, the same are minor in nature and did not effect the substratum of the prosecution case and these discrepancies also not are sufficient to impeach the veracity of the witnesses. Minor discrepancies are bound to occur in the statements of the truthful witnesses. It was observed in case State of Madhya Pradesh vs. Dharkole @ Govind Singh 2004 (4) RCR (Criminal) 942 and Kamma Otukunta Ram Naidu vs. Chereddy Pedda Subba Reddy and others 2003 (4) RCR (Criminal) 658 that where evidence of the prosecution witnesses is consistent and strengthened by the other evidence, minor discrepancies do Criminal Appeal No. 760-SB of 2005 -7- *** not affect the credibility of the prosecution witnesses.
As regards the discrepancies with regard to time and location, since the raid was conducted and the witnesses have stated that they had visited the office of the accused, therefore, these discrepancies is of no consequence. Again, the discrepancies with regard to time of receiving the complaint and reaching in the office are very minor. It is well settled by now that the human memory are likely to fade with the passage of time. As regards the discrepancy with regard to making payment of Rs.500/- in the store room or in the office, it may be observed that the store room and the office adjoin each other, but the fact is that Arun Kumar had handed over the amount to the accused which was received by him and was put into pocket of the trouser. The hands, trouser and the currency notes, which were recovered from the accused, on washing in he solution, the water became pink. Such material evidence cannot be washed out merely on ground of this minor discrepancy, particularly when the store room is the part of the office.
As regards the giving of signal, Arun Kumar has specifically stated that Raj Kumar went inside and gave signal which stand corroborated by the prosecution witnesses who stated that they went inside the office of the accused on receiving signal and the mere fact that Raj Kumar did not depose about the same in the court hardly effects the substratum of the prosecution version.
Consequently, on scrutiny of the entire evidence, it transpires that the accused has been misusing his office and assigning duties after completion of their tenure of 89 days only to those home guards who paid him gratification.
Now coming to the defence, the accused took the stand that he had not agreed to re-engage Arun Kumar and Raj Kumar in July/August, 2001 and for that reason he was falsely implicated in the case.
Having gone through the testimonies of HC Rajinder Kumar (DW1), Platoon Commander (DW2) and having gone through the documents Ex.DB and Ex.DC, it is apparent that in the year 1998, Superintendent of Police, Ambala at the instance of Station House Officer, Police Station, Baldev Nagar had written a letter to the Platoon Commander Criminal Appeal No. 760-SB of 2005 -8- *** Home Guards Ambala against Home Guards Randhir Singh, Gurdarshan Singh, Karamjit Singh, Rakesh Kumar and Raj Kumar. Consequently, in October, 1998 Raj Kumar was replaced with Ashok Kumar Home Guard but no benefit could be derived from the aforesaid plea set up by the accused and the accused could not get any benefit out of the evidence as examined by him in defence. It has come in evidence, that even after 1998 both, complainant as well as Raj Kumar, had been assigned duties of Home Guards. They never showed any ill-will against the accused during the period 1998 to 2001except when they were fed up with the attitude of the accused as he was not assigning them duties every time without payment. As such, the defence plea as set up by the accused is of no consequence.
No doubt, conviction of a Government employee in a corruption case results in snatching not only his livelihood but also of the persons who are completely dependent upon him receive a set back, but at the same time, the Apex Court has said time and again and particularly in the judgment rendered in case State of Madhya Pradesh vs. Ram Singh and others 2000 (1) RCR (Criminal) 784 that corruption in a civilized society is a disease like cancer which if not detected in time is sure to maliganise the policy of the country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. It effects the economy and destroys the cultural heritage. It was further observed that unless it is nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic political system of the country. No doubt fundamental principle of the administration of justice is to treat the accused as innocent and he has a right of silence till he is proved to be guilty. Now in these days of advanced science, technology and variety of devices to be used and diversity of the ways instrumented in earning of easy money, administration of justice should look with its inner eyes about the balance between the illegal acts and innocence of the accused, also about the extent of evidence the prosecution could produce and if some obligation could be placed upon the accused to explain which are in their exclusive knowledge. The States are slow in its action on account of untrained state machinery or other various reasons, at the same time, the criminals have faster and more advanced Criminal Appeal No. 760-SB of 2005 -9- *** devices and instruments to make way for achieving their targets, than those who wield the handle of investigation. As such, law requires the revamping up of the state machinery so as to create a sense of dedication and sincerity towards their duties and train them to coup up with the present techniques, means, ways and devices used by the accused in the commission of the crime. The court should rise to occasion to direct the Investigating Agencies to introduce new and advanced systems and technology in conducting the investigation and the state to provide latest infrastructure. The videography, being also one of the sure test to prove the actual raid, should also be introduced.
Thus, in the wake of the aforesaid discussions, this court is of the definite opinion that the trial court has rightly concluded that the accused had demanded and accepted the bribe for a motive.
No other argument has been advanced.
For the foregoing reasons, finding no merit in the appeal, the same is dismissed.
December 24, 2010 (A.N. Jindal) deepak Judge