Punjab-Haryana High Court
Harmail Dass vs State Of Punjab And Another on 31 July, 2012
Author: Sabina
Bench: Sabina
CRM-A No. 442-MA of 2012 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
CRM-A No. 442-MA of 2012 (O&M)
Date of decision:31.7.2012
Harmail Dass
....... Appellant
Versus
State of Punjab and another
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.G.S.Sandhu, Advocate,
for the applicant-appellant.
****
SABINA, J.
Respondent No. 2 was tried by the Court of Special Judge, Patiala qua commission of offence punishable under Sections 7, 13 (2) of the Prevention of Corruption Act, 1988 (for short 'the Act').
The trial Court, vide impugned judgment dated 20.3.2012, acquitted respondent No. 2 of the charges framed against him. Hence, the complainant has filed this application under Section 378 (4) of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) with a prayer for grant of leave to file an appeal against the judgment of acquittal of respondent No.2.
Prosecution story, in brief, was that the applicant- complainant was working as bill distributor in the office of Punjab State Electricity Board (PSEB for short),Kalyan (Rakhra). The father CRM-A No. 442-MA of 2012 (O&M) 2 of the complainant was working as lineman in PSEB. The father of the complainant owned 5 acres of land in village Dadhera and they had constructed their house on the said land. The father of the complainant had applied for electric connection for the said house on 7.7.2006. The requisite security amount was deposited. The additional expenses as required by the PSEB were also deposited by the complainant. After completion of all the formalities on 27.7.2006, the officials of the PSEB were erecting wires for providing electricity to the house of the complainant. Respondent No.2, who was working as a forest guard at Kalyan, arrived at the spot and stopped the complainant from erecting the wires. Respondent No.2 insisted that he would not permit the erection of the wires without permission of the forest department and raised a demand of ` 5,000/- but the matter was settled at ` 1,500/-. Respondent No.2 drafted an application addressed to Divisional Forest Officer, Patiala and represented to the complainant that he would himself get the requisite permission and the complainant may get the wires erected but he had to pay ` 1,500/- as bribe. Thereafter, the complainant went to the vigilance department and a raid was organised. The complainant was asked to hand over the tainted currency notes to respondent No.2 on demand and Jasmeer Singh @ Goldy was nominated as a shadow witness. Thereafter, the raiding party reached the spot. The complainant handed over the tainted three currency notes in the denomination of ` 500/- each, smeared with phenolphthalein powder, to respondent No.2. On a signal received from the shadow witness remaining members of the raiding party reached the spot. The hands CRM-A No. 442-MA of 2012 (O&M) 3 of respondent No.2 were washed in a solution of sodium carbonate. The colour of the solution turned pink. The tainted currency notes were recovered from the left pocket of the shirt of respondent No.2.
Learned counsel for the applicant has submitted that the prosecution had been successful in proving its case. The complainant as well as the other material witnesses had duly supported the prosecution case.
After hearing learned counsel for the applicant, I am of the opinion that the present application deserves to be dismissed.
The learned trial Court, while acquitting respondent No. 2 of the charges framed against him, has held as under:-
"23. Faced with this situation, it has been contended by the learned Addl. P.P. for the State that the demand of bribe could have also been made as a reward for permitting to lay the electric wires. As such, it becomes significant to adjudicate as to whether the accused was in any manner competent to grant permission for laying the electric wires over the forest land or had any role to play in the said matter. The prosecution has examined Krishan Kumar PW7, who is working as Clerk in the office of Divisional Forest Officer, Patiala, with regard to the procedure for erecting the electricity line over the forest land. He has stated that in the event an electricity line is to be erected over the forest land, the permission is required form the Divisional Forest Officer in writing. He has also stated in cross-examination CRM-A No. 442-MA of 2012 (O&M) 4 that the permission is accorded by Conservator of Forest (Central), Ministry of Environment, Chandigarh and the same is conveyed to the concerned person through the Divisional Forest Officer and the request for passing the electricity line is received from the PSEB and after processing the case, the same is forwarded to the Conservator of Forest (Central), Ministry of Environment, Chandigarh. A private person cannot directly submit any such application to the Forest Department and the same is required to refer the application to the Forest Department. He has further deposed to the effect that in the instant case no such application was moved for permission for passing the electricity wires nor the same was ever processed by the officer of Conservator of Forest (Central), Ministry of Environment, Chandigarh. AS such, no application could have been directly submitted by the complainant for permission to lay the electricity wires over the forest land. There is no record of the PSEB to indicate that any wires were to be laid over the forest land or for that purpose any request was made for according such permission for laying the wires. Ex.PW8/C is the sketch of the proposed line for laying the electric wires for providing electric connection to the house of the complainant. The perusal thereof does not indicate the existence of any forest land in the route where the electricity lines were to laid. No revenue record has been CRM-A No. 442-MA of 2012 (O&M) 5 procured during the course of investigation nor proved on record to indicate that there was any forest land over which the electric lines were to be laid. As such, the material on record does not indicate that the accused was in any manner competent for granting permission for laying the electric wires over the forest land or he had any role to pay in the matter. In the instant case, the electricity wires had already been laid and there was no occasion to pay the bribe to the accused. In this regard, reliance can be made to the decision reported as 1988 (1) Recent Criminal Reports, 123 (P&H), Dalip Singh vs. State wherein it has been laid down as under:-
"Another circumstance which goes against the prosecution is that according to Balwant Singh before the payment of bribe, the appellant had prepared the papers and had taken to the Treasury Officer, where his mother had also signed. After the signatures of the Treasury Officer, nothing remained to be done by the appellant, for which Balwant Singh might have paid the bribe to him. If any bribe was to be paid, it must have been paid before the preparation of the papers by the appellant. The sequence of the event as narrated by Balwant Singh is not very natural and in the absence of any corroboration testimony is not CRM-A No. 442-MA of 2012 (O&M) 6 convincing. It is very difficult to accept that Balwant Singh will pay the money if his work had already been done."
24. The material on record is indicative of the fact that the accused had no role to pay in the matter of granting permission for laying the electricity wires over the forest land and the case of the prosecution with regard to the allegations of demand and acceptance of bribe money becomes doubtful. In this regard reference of bribe money becomes doubtful. In this regard reference can be made to a decision reported as 2009(3) R.C.R. (Criminal), 971 (S.C.), State of Punjab versus Sohan Singh.
25. Lastly it has been contended by the learned Addl. P.P. for the state that the hand wash and pocket wash of the accused had yielded positive results, which indicates the recovery of the tainted money from the possession of the accused. In this regard, it may be mentioned here that the recovery of the tainted money, divorced from the circumstances under which the accused had any occasion to demand and accept the bribe, does not in any manner can be termed to be sufficient to hold the accused guilty of the allegations leveled against him. The question with regard to the recovery of the tainted money has to be appreciated along with other material circumstances emerging in the case.
26. On evaluating the material on record, the case of CRM-A No. 442-MA of 2012 (O&M) 7 the prosecution stands short of demanding degree of proof required to establish a criminal case and the version of the prosecution cannot be termed to be free from reasonable doubt and the accused is held entitled to benefit of doubt. As such, it cannot be held that on 1.8.2006, in the area of Safabadi Gate, Patiala, the accused, while posted as Forest Guard and being a public servant, demanded and accepted Rs.1500/- as illegal gratification from Harmail Dass PW1, for the purpose of laying of electricity wires over the forest land to provide electric connection to the house of the father of the complainant."
It is a case where, in view of evidence on record, it can safely be said that the prosecution has failed to prove guilt of the respondents. Even in cases where two views are possible, after acquittal, in appeal, benefit will go to the accused.
Their lordships of the Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in State of Punjab v. Hansa Singh, 2001 (1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) CRM-A No. 442-MA of 2012 (O&M) 8 SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
To the same effect is the ratio of the judgments of the Supreme Court in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415.
Similarly, in Mrinal Das & others v. The State of Tripura, 2011 (9) Supreme Court Cases 479, the Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re- appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person CRM-A No. 442-MA of 2012 (O&M) 9 is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed"
The reasons given by the trial Court, while acquitting respondent No. 2 of the charges framed against him, are sound reasons. Learned counsel for the applicant has failed to point out any mis-reading of evidence on record by the trial Court which would CRM-A No. 442-MA of 2012 (O&M) 10 warrant interference by this Court.
No ground is made out to grant leave to file an appeal. Accordingly, this application is dismissed.
Since the application for leave to appeal is dismissed, the application seeking condonation of delay is rendered academic and is disposed of accordingly.
(SABINA) JUDGE July 31, 2012 anita