Punjab-Haryana High Court
Dr. Narpinder Singh vs State Of Punjab on 2 March, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
Crl. Appeal No.1921-SB of 2007
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.1921-SB of 2007
Date of decision: 02.03.2013
Dr. Narpinder Singh
....Appellant
Versus
State of Punjab
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to
see the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. Vikram K. Chaudhri, Advocate, for the appellant.
Mr. A.S. Kler, AAG, Punjab.
*****
PARAMJEET SINGH, J.
The challenge in the present appeal is to the judgment of conviction and the order of sentence dated 12.9.2007 passed by learned Special Judge, Tarn Taran, whereby the appellant was convicted and sentenced under Section 7 of the Prevention of Corruption Act (in short 'the Act') to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2000/-, and in default of payment of fine, to undergo further rigorous imprisonment for a period of two months, in a case arising out of FIR No.27 dated 18.5.2004 registered under Sections 7 read with Section 13(2) of the Act at Police Station Vigilance Bureau, Amritsar.
Crl. Appeal No.1921-SB of 2007 -2- Brief facts of the present case are that on 18.5.2004 Tara Singh, complainant, son of Pritam Singh, along with Swaran Singh son of Mukhtiar Singh, residents of Rure Asal, Police Station Sadar Tarn Taran, District Amritsar, went to the office of DSP Vigilance Bureau, Amritsar Range, Amritsar, and got recorded his statement. As per his statement on 29.4.2004, in the evening, his milching buffalo died due to electrocution from electric pole standing near his house. He had immediately moved an application to Dr. Narpinder Singh, in charge Veterinary Hospital, Tarn Taran, by going to his house, after getting snaps of dead buffalo and made request to him for conducting post- mortem examination of his dead buffalo. He asked for payment of Rs.200/- for this purpose. Tara Singh paid Rs.200/- and then the doctor went along with the complainant. He conducted the post-mortem examination of the dead buffalo. He further demanded Rs.300/- as bribe for assessing the worth of his buffalo. The complainant entreated that he is a poor man but the doctor stated that he would not assess the worth of his buffalo if he was not paid such bribe. Under compulsion, the complainant paid Rs.300/- more to the doctor and requested him to write the post-mortem report. The complainant visited the doctor time and again for obtaining post-mortem report but he did not give the post- mortem report. On 17.5.2004, the complainant met the doctor in the veterinary hospital, Tarn Taran and requested him for giving post- mortem report. The accused-doctor demanded more Rs.1000/-, however, the deal was struck for Rs.500/- for writing the post-mortem report. The accused-doctor asked the complainant to come on next day afternoon with Rs.500/- to his house. The complainant was in need of such post- Crl. Appeal No.1921-SB of 2007 -3- mortem report to get compensation from the Punjab State Electricity Board and was not willing to pay more bribe. Being fed up from the accused-doctor, he approached the DSP Vigilance Bureau. Tara Singh complainant presented five currency notes of Rs.100/- denomination each. Phenolphthalein powder was applied to all the notes and were returned to Tara Singh complainant. He was instructed to pay such currency notes worth Rs.500/- to the doctor on demand and not to shake the hands with the doctor. Swaran Singh was assigned the task of shadow witness. On the basis of statement of the complainant ruqa was prepared and FIR was lodged. A raiding party was prepared. The raiding party left the office of DSP to conduct raid on the accused. Complainant and and shadow witness were sent to the house of the accused. After receiving signal from the shadow witness, raiding party conducted raid on accused in the drawing room of his house. The DSP introduced himself to the accused. He dissolved castic sodha in the glass of water through Satnam Singh ADO. The appellant was made to wash the fingers of both of his hands one by one in the solution through Satbir Singh ADO, then colour of solution changed to pinkish. The solution was sealed with seal of description of 'KS' and the same was taken into possession vide recovery memo. Personal search of accused was conducted as per rules. From right pocket of "pyjama" worn by the appellant, five currency notes each of the denomination value of Rs.100/- were recovered. Numbers of such currency notes were compared with the already noted down numbers of the currency notes. The numbers tallied. The tainted currency notes were taken into possession vide recovery memo. DSP had conducted further personal Crl. Appeal No.1921-SB of 2007 -4- search of the accused-appellant. No other item was recovered from his possession. Personal search memo was prepared. Solution of castic sodha was again got prepared and "pyjama" of the accused-appellant was washed in that solution. On washing of right pocket of the "pyjama", colour of the solution became pinkish and the solution was again sealed by DSP with his seal of description 'KS'. Separate parcel of "pyjama" of accused was prepared. It was sealed with the seal of DSP of description 'KS'. Quart containing solution of pocket wash of "pyjama", parcel of "pyjama" of accused were taken into possession vide another recovery memo. Seal was entrusted to Satnam Singh ADO after its use by DSP. Upon search of Tara Singh complainant, an application addressed to Senior Veterinary Officer, Tarn Taran, moved by complainant, post- mortem report, three photographs of dead body of buffalo were recovered which were kept in his right hand. Such items were taken into possession. Further investigation was conducted at the spot. Statements of the witnesses were recorded. Rough site plan of the place of incident was prepared. Accused was informed about the nature of the offence and he was taken into custody in accordance with law. Accused- appellant got bail from the Court. Quarts containing solution were sent to Forensic Science Laboratory, Punjab, Chandigarh. Analysis report was received. After completion of investigation, challan was presented against the accused.
On presentation of challan, copies of the documents under Section 207 Cr.P.C. were supplied to the accused. On 31.5.2005 charge for offence punishable under Sections 7 and 13(1) of the Act was framed against the accused-appellant to which he pleaded not guilty and claimed Crl. Appeal No.1921-SB of 2007 -5- trial.
To prove its case, the prosecution examined Tara Singh, complainant, as PW1, Swaran Singh, shadow witness, as PW2, Satnam Singh, Agriculture Development Officer, a Government witness as PW3, Satbir Singh, ADO another Government witness as PW4, HC Raghbir Singh, a formal witness as PW5, Iqbal Chander, Senior Assistant of office of Deputy Director, Animal Husbandry, as PW6, Harbans Kaur, Sarpanch of village Rure Asal, as PW7, Dr. Parminder Singh, Veterinary Officer, Civil Veterinary Hospital, Tarn Taran as PW8, HC Gurminder Singh, another formal witness as PW9, Kashmir Singh DSP, Investigating Officer as PW10 and Madan Lal Bangar as PW11.
Statement of the accused was recorded under Section 313 Cr.P.C.. The accused denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed innocence and stated that he has been falsely implicated in this case. However, no evidence in defence was led by the accused-appellant.
The trial Court after conclusion of trial convicted and sentenced the appellant as aforesaid. Hence this appeal.
I have heard the learned counsel for the parties and perused the record.
Learned counsel for the appellant vehemently argued that the demand and acceptance of the illegal gratification is not proved. Tara Singh complainant PW1 and Swaran Singh shadow witness PW2, who are the star witnesses of the prosecution have not supported the prosecution story. They have not stated that the accused-appellant had ever demanded illegal gratification. The accused had been falsely Crl. Appeal No.1921-SB of 2007 -6- implicated. Learned counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Banarasi Dass v. State of Haryana, 2010(2) RCR (Crl.) 553 to contend that when the complainant and the prosecution witnesses turn hostile and do not support the prosecution case, then the factum of demand and acceptance of bribe cannot be said to have been established and as such presumption cannot be raised under Section 20 of the Act.
The above contention has been vehemently opposed by the learned State counsel by contending that at the relevant time, accused- appellant was in-charge of the veterinary hospital, Tarn Taran. He demanded a sum of Rs.500/- as illegal gratification from the complainant Tara Singh for giving post-mortem report of his dead buffao. The accused was apprehended at the spot by the Vigilance Bureau and recovery of illegal gratification was effected from him.
I have considered the rival contentions of the learned counsel for the parties and perused the record.
In the light of judgment in the case of Banarsi Dass (supra) and the statements of two hostile witnesses i.e. complainant Tara Singh PW1 and Swaran Singh shadow witness PW2, demand and acceptance of illegal gratification alleged to have been received by the appellant- accused, for favouring the complainant for giving the post-mortem report of his dead buffalo, cannot be said to have been proved by the prosecution in accordance with law. Both the witnesses have turned hostile. They have even denied their statements despite confrontation.
The complainant denied that accused ever demanded any bribe from him to give the post-mortem report of his dead buffalo. He stated Crl. Appeal No.1921-SB of 2007 -7- that he went to the residence of the appellant and put the currency notes underneath the cloth spread on the table and called the police who took out the money from underneath the cloth and took the accused to Vigilance Bureau.
PW2 Swaran Singh, shadow witness stated that the appellant never demanded bribe money from Tara Singh complainant in his presence nor any bribe money was accepted by the appellant in his presence.
Moreover, both the Government witnesses PW3 Satnam Singh and PW4 Satbir Singh in their cross-examination stated that recovery had already been effected before they entered the room and they attested the recovery memo at the instance of DSP.
The Hon'ble Supreme Court in the case of Banarsi Dass (supra) has held in para 16 & 17, as under:-
"16. In light of the statement of two hostile witnesses PW2 and PW4, the demand and the acceptance of illegal gratification alleged to have been received by the accused for favouring PW2 by recording the khasra girdawaris in the name of her mother cannot be said to have been proved by the prosecution in accordance with law. We make it clear that it is only for the two witnesses having turned hostile and they having denied their statement made under Section 161 of the Indian Penal Code despite confrontation, that the accused may be entitled to acquittal on technical ground. But, in no way we express the opinion that the statement of witnesses including official witnesses PW10 and PW11 are not accepted by the Court. Similarly, we have no reason to disbelieve the recovery of Ex.P-1 to P-4 vide Ex.PD.
17. In the light of this we are of the considered view that the Crl. Appeal No.1921-SB of 2007 -8- judgment of the High Court convicting the accused for the offences with which the accused was charged cannot be sustained in law."
As regards presumption under Section 20 of the Act, is concerned it would be appropriate to discuss how it applies under criminal law. In criminal law, there is a presumption of innocence in favour of the accused. The prosecution must establish beyond a reasonable doubt that accused had committed the offence for which he had been charged. As a general principle, the burden of proving actus reus and mens rea lies on the prosecution. Section 20 of the Act refers to the rebuttable presumption. Rebuttable presumption in criminal law is somewhat controversial, in that it does effectively reverse the presumption of innocence. The effect of rebuttable presumption is to put the legal burden of disproof on the accused. In rebuttable presumption also the primary facts must be proved by the prosecution, thereafter the specific presumption could be drawn from them. In the present case, since both, the complainant and the shadow witness, have turned hostile so the primary facts had not been proved with regard to demand and acceptance, so mere recovery of signed tainted notes cannot lead to raising of presumption under Section 20 of the Act. The findings of the Hon'ble Supreme Court in the case of State of Kerala vs. C.P. Rao, 2011 (3) RCR (Crl.) 688 reproduced below are relevant in this regard: -
"10. In C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, reported in 2009(3) SCC 779, this Court while dealing with the case under the Prevention of Corruption Act 1988, by referring to its previous decision in the case of Suraj Mal v. State (Delhi Admn.), reported in 1979(4) SCC 725 held that mere recovery of tainted money, divorced from the Crl. Appeal No.1921-SB of 2007 -9- 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 conviction cannot be sustained."
In view of the ratio of law laid down in the aforesaid judgment of the Hon'ble Supreme Court, this Court is of the view that the prosecution has failed to establish the alleged guilt that accused appellant had demanded illegal gratification from complainant and also received the same knowingly that it was received by him as illegal gratification. These two aspects are required to be proved beyond reasonable doubt by the prosecution for convicting the appellant which the prosecution has failed to prove in this case. Since the complainant and the shadow witness have turned hostile with regard to alleged demand, recovery and acceptance, the benefit of doubt should be given to the accused-appellant. Even the recovery had already been effected before the official witnesses entered the room. Therefore, without commenting on the recovery of tainted money and the veracity of the prosecution evidence, it is a fit case where the appellant deserves to be acquitted of the charge.
In the labyrinth of criminal justice system, the burden of proof lies heavily on the prosecution. The entire merit of a case depends on prosecution witnesses. Bentham says "witnesses are the eyes and ears of justice". The criminal case is built on the edifice of evidence, the evidence that is admissible in law. Since main witnesses in this case Crl. Appeal No.1921-SB of 2007 -10- have not supported the prosecution case, prosecution had failed to build the edifice of evidence and resultantly failed to prove the guilt of the appellant beyond reasonable shadow of doubt.
Accordingly, without further commenting upon the quality of prosecution evidence, this appeal is allowed, judgment of conviction and order of sentence dated 12.9.2007 are set aside and the appellant is acquitted of the charge framed strictly in consonance with the observations and authority of law laid down by the Apex Court in the case of Banarsi Dass (supra). Ordered accordingly.
Bail bonds stand discharged.
(Paramjeet Singh) Judge March 02, 2013 R.S.