Punjab-Haryana High Court
Ashok Kumar vs State Of Punjab on 31 August, 2012
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No.477 SB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.477 SB of 2003
Date of decision 31.8.2012.
Ashok Kumar
...... Appellant.
versus
State of Punjab
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Mr. K.S.Sidhu, Senior Advocate and
Mr. G.S.Benipal, Advocate for the appellant.
Mr. Vishal Sharma, AAG, Punjab for the
State-respondent.
K.C.PURI, J.
Appellant-Ashok Kumar has directed the present appeal against the judgment and order dated 18.2.2003 passed by learned Special Judge, Faridkot vide which accused/appellant has been convicted under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988 ( in short
- the Act) and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of `.500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two months under Section 7 of the Act and to undergo further rigorous imprisonment for a period of three years and to pay a fine of `.1,000/- Criminal Appeal No.477 SB of 2003 2 and in default of payment of fine to further undergo rigorous imprisonment for a period of three months under Section 13(2) of the Act. Both the sentences were, however, ordered to run concurrently.
2. The brief facts of the prosecution case are that on 14.9.1994 complainant Beant Singh and his friend Bikkar Singh made an application to the Deputy Superintendent of Police (in short - the DSP) Vigilance Bureau, Faridkot wherein he alleged that he moved an application for grant of Toka connection with the local office of Punjab State Electricity Board, Kotkapura and had deposited the requisite amount and undergone all the formalities and when he had been repeatedly visiting the office of the Punjab State Electricity Board, Kotkapura nothing worthwhile was done and that on 13.9.1994 he went to the office of PSEB, Kotkpura to enquire as earlier on receipt of a notice, he had submitted his duly sworn affidavit when he met accused-appellant, who told him that he could get his work done in the release of the Toka connection by using his official influence and for which he demanded illegal gratification of `.400/- and the deal was ultimately struck for a sum of `.200/- and when the complainant met Bikkar Singh and on his advice decided to lodge a complaint before the Vigilance Bureau.
3. The complainant handed over two currency notes of the denomination of `.100/- each to DSP-Lashkar Singh, who applied phenolphthalein powder to these currency notes and after noting down their numbers and through a memo handed back these currency notes to the complainant after ensuring that he was not having any other article on his Criminal Appeal No.477 SB of 2003 3 person.
4. The effect of Phenolphthalein powder was also demonstrated to the complainant and the shadow witness. For the purpose of laying the trap, the investigating Officer, joined Vijay Pal Gupta, Clerk in the office of Excise and Taxation Officer, Kotkapura in the capacity of official witness and after introducing all the the witnesses to each other the final details of the trap were explained and role of each of the witness was also assigned and explained. The complainant and the shadow witness approached the accused and the other officials remained out side and on receipt of signal, raid was conducted. The accused fled away from his office and thereafter the witnesses along with the police party chased the accused and near the railway station Kotkapura apprehended him and after usual formalities of introduction and calling of independent witnesses a solution of sodium carbonate in the water was prepared and official witness Vijay Pal Singh was asked to dip his hands in the solution, the colour of solution did not change and when accused was asked to wash his hands in that solution one by one, the solution changed into light pink colour, which was poured into a nip duly sealed with seal of Inspector Gian Chand bearing impression GC. Bribe amount of `.200/- i.e. two currency notes of the denomination of `.100/- each were recovered from the back pocket of the pent of accused. Solution and currency notes were taken into possession vide separate memos attested by the complainant, shadow witness and the recovery witness. Thereafter accused was taken to his office and from his Almirah file of Toka connection was recovered The Investigating Officer also Criminal Appeal No.477 SB of 2003 4 prepared joint rough site plan of two places of occurrence. On return to the police station, the case property was deposited with the MHC. After completion of the investigation of the case and obtaining requisite sanction from the Competent Authority, challan against the accused was presented in the Court for trial.
5. On appearance of the accused, copies of documents were supplied to the accused. The trial Court framed charges under Sections 7 and 13(2) of the Act against the accused. He pleaded not guilty to the charges and claimed trial.
6. In order to prove its case, prosecution examined Raj Kumar Gupta (PW-1), Smt. Krishana, LDC (PW-2), Bhajan Singh Brar, (PW-3), Beant Singh complainant (PW-4), Bikkar Singh shadow witness (PW-5), Constable Harjinder Singh (PW-6), Vijay Pal Gupta Inspector Excise and Taxation (PW-7), Hari Sharan (PW-8), DSP Lashkar Singh (PW-9) and closed its evidence.
7. The accused was examined under Section 313 Cr.P.C and he denied all the incriminating material and has stated that he was not competent official to sanction the Toka connection and that neither he demanded nor accepted any such graft which was never recovered from him and in his defence he examined Narinder Kumar, UDC, PSEB as DW-1.
8. The trial Court, after hearing the learned counsel for the parties, convicted and sentenced the accused vide judgment and order dated 18.2.2003, as aforesaid.
9. Feeling dissatisfied with the aforesaid judgment, appellant Criminal Appeal No.477 SB of 2003 5
-accused has preferred the present appeal.
10. I have heard learned counsel for the parties and have gone through the records of the case.
11. Learned counsel for the appellant has submitted that in order to prove the ingredients of offence under the Act, prosecution is required to prove the following ingredients :-
(1) Demand of illegal gratification ; (2) Acceptance of illegal gratification ; (3) Recovery of tainted amount from the possession of the accused.
12. It is submitted that first two ingredients of the offence i.e. demand and acceptance of illegal gratification can be proved by the complainant and the shadow witnesses. However, it is submitted that both complainant and the shadow witness have not supported the case of the prosecution in respect of demand and acceptance of the illegal gratification. In the absence of their testimony, mere recovery of tainted amount from the appellant is not sufficient to prove his guilt under Sections 7 and 13(2) of the Act.
13. It is further submitted that story propounded by the prosecution does not appeal to the reason. According to the case of the prosecution illegal gratification was given in the office of appellant whereas recovery has been effected from the market. No independent corroboration regarding recovery has been proved on the file.
14. Learned counsel for the appellant has further submitted that there was no motive for the appellant to accept the illegal gratification. The witnesses produced by the prosecution himself has stated that appellant was Criminal Appeal No.477 SB of 2003 6 simply working as draftsman. He was not competent to sanction the connection of Toka Machine in favour of the complainant. The recovery of the file from the office Almirah of the appellant has simply been planted.
15. Lastly, it is submitted that appellant is aged about 78 years and is at the fag end of his life. Even in the year 1995 his age has been mentioned as 60 years in the judgment. So, it is contended that the punishment is harsh.
16. In reply to the above noted submissions, learned State counsel has supported the judgment and order of the trial Court and it is submitted that although the complainant has been declared hostile but in the cross- examination conducted by the Public Prosecutor, he has stated in accordance with the prosecution story regarding demand and acceptance and recovery of tainted amount. The shadow witness has also half heartedly supported the case of the prosecution regarding demand and acceptance of the illegal gratification. There was absolutely no reason for the complainant, shadow witness, official witnesses and Deputy Superintendent of Police to falsely implicate the accused. Hand wash further lends support to the prosecution story. So, prayer has been made for dismissal of the appeal.
17. I have given my thoughtful consideration to the rival submissions made by both the sides.
18. The first and foremost attack on the prosecution story by the appellant is that complainant and the shadow witness have turned hostile and as such demand and acceptance of illegal gratification is not proved. The trial Court while relying upon the authority of Hon'ble Supreme Court Criminal Appeal No.477 SB of 2003 7 observed that, the part which is favourable to the prosecution can be considered in respect of the testimony of the witness, who has been declared hostile. In this case Beant Singh is the complainant, however, in the cross-examination by the Public Prosecutor, he has almost supported the case of the prosecution on all material particulars i.e., regarding demand, acceptance and recovery of illegal gratification. In the cross- examination he has stated that it is correct that he met the accused on 13.9.1994 and he demanded `.400/- as illegal gratification from him. He has further stated that he requested the appellant that he was a poor agriculturist and he should accept `.200/- as bribe money and make false promise with the accused. He has further stated that it is also correct that he narrated the incident of demand of `.200/- by the accused to Bikkar Singh, the shadow witness. He also supported the case of prosecution regarding demonstration of hand wash. He also admitted the factum of giving two currency notes to the DSP and that DSP told him that `.200/- will be paid on demand. He has also admitted the factum of Bikkar Singh appointed as shadow witness. He has also stated that it is correct that when he approached the accused the latter inquired from him whether he had brought the bribe money and then he passed on the same to the accused and he after obtaining the money put the same in his purse and then purse was put in the pocket of trouser. So, virtually in the cross-examination he has supported the case of the prosecution regarding demand and acceptance. The prosecution story regarding recovery of Rs.200/- from the accused and regarding hand wash stands proved. Bikkar Singh (PW-5) has also stated Criminal Appeal No.477 SB of 2003 8 that Beant Singh told him regarding demand of illegal gratification by official of PSEB for release of connection of toka. He also supported the case of the prosecution that he accompanied Beant Singh to Vigilance office and DSP recorded the statement of Beant Singh. He also supported the case of the prosecution regarding demonstration of hand wash and that DSP applied phenolphthalein powder on the currency notes which were handed over to the complainant. He also admitted the factum of going to Kotkapura and joining of official witness. In the cross-examination he has supported the prosecution story regarding hand wash and at the place of recovery he has also admitted the recovery of two currency notes which was given by Beant Singh to the accused. No doubt, he has not supported the case of the prosecution regarding actual handing over the currency notes but the testimony in favour of the prosecution has been rightly believed by the trial Court.
19. The other attack on the prosecution story is that appellant being Circle Head Draftsman was not competent to sanction the connection for toka machine and as such there was no occasion for him to accept the illegal gratification. However, that submission is also without any substance. The file in relation to release of toka connection to the complainant was recovered from the almirah of the accused. So, that lends support to the prosecution story.
20. Learned counsel for the appellant has relied upon authority Banarsi Dass vs. State of Haryana 2010(3) JT 552. The said authority is distinguishable as in that case both complainant and shadow witness Criminal Appeal No.477 SB of 2003 9 have not supported the prosecution regarding demand and acceptance of illegal gratification. So, the said authority is distinguishable.
21. Authorities Bhupinderpal Singh vs. State of Punjab reported in 2012 (2) RCR ( Criminal ) page 278 and Raghu Nath Bansal vs. State of Punjab 2010 (3) R.C.R.(Criminal ) page 721 are also distinguishable on the same ground. In authority Raghu Nath Bansal 's case (supra) the complainant was inimical towards the accused which fact has been proved on the file.
22. There is not even suggestion to the complainant and the shadow witness being animus against the accused-appellant. There is also no suggestion to the official witnesses and DSP for falsely implicating the accused. So, in these circumstances, the conviction recorded by the trial Court in respect of offences punishable under Sections 7 and 13 (2) of the Act, does not call for any interference.
23. Now the question arises about quantum of sentence. Age of the appellant has been mentioned as 60 years in the judgment itself, which is of the year 2003. So, keeping in view the age of the appellant, ends of justice would be met in case the sentence under Section 13 (2) of the Act is reduced to one year instead of three years awarded by the trial Court. The sentence imposed under section 7 of the Act and the sentence of fine imposed under Section 13 (2) of the Act, stand affirmed. However, both the sentences are ordered to be run concurrently. The period of detention of the accused-appellant if already undergone during investigation or trial of the case, shall be set off against the above sentences. Criminal Appeal No.477 SB of 2003 10
24. With the above said modification in the sentence, the appeal stands disposed off accordingly.
25. A copy of this judgment be sent to the trial Court for strict compliance.
August 31, 2012 (K. C. PURI) sv JUDGE