Punjab-Haryana High Court
Ishwar Singh And Another vs State Of Haryana on 3 March, 2010
Author: Sabina
Bench: Sabina
Criminal Appeal No.430-SB of 2004 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Appeal No.430-SB of 2004
Date of Decision: March 03,2010
Ishwar Singh and another ...........Appellants
Versus
State of Haryana ..........Respondent
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.N.S.Shekhawat, Advocate for appellant No.1 -Ishwar Singh
Mr.Sanjiv Sheoran, Advocate for the appellant No.2-Subhash
Chander
Mr.H.S.Benniwal, Deputy Advocate General, Haryana
**
Sabina, J.
Appellants were tried for an offence under Section 7/13 of the Prevention of Corruption Act, 1988 (`the Act' for short). Vide judgment dated 3.2.2004 passed by the Additional Sessions Judge, Rohtak, appellants were convicted under Section 7/13 of the Act . Vide order dated 5.2.2004, the accused Ishwar was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.25,000/- . Accused- Subhash was sentenced to undergo rigorous imprisonment for two years and Criminal Appeal No.430-SB of 2004 2 pay a fine of Rs.10,000/- . Hence, the present appeal by the appellants.
The brief facts of the case, as noticed by the trial Court in paras 2 to 4 of its judgment, are as under:-
"2.Shorn of unnecessary details the facts of the prosecution case within short campass are that on 9.8.2002 complainant Dharambir came to S.V.B.Rohtak and moved an application Ex.PF before Inspector/Investigating Officer (IO) of the case. It was alleged therein that his nephew (sister's son) Balraj was involved in some case at Jhajjar with CIA staff. He came to know that accused Asstt. Sub Inspector (ASI) Ishwar had brought him to P.S.Sadar Rohtak in connection with some case on 31.7.2002. On 6.8.2002 he want to enquire about his nephew along with PW Ranbir. Accused Ishwar had detained his nephew in police station. When he enquired from ASI Ishwar about the allegations against his nephew, he told that it was the sweet will of the police. It is the game of money. The allegations are levelled and removed with the money. He asked for Rs.10,000/- to release his nephew. When he had shown his helplessness, the matter was settled for Rs.5000/-. He assured him that Rs.3000/- would be given in the beginning and Rs.2000/- would be given later on. He was sure that if the bribe would not be paid his nephew would not be released. A threat has been given to implicate him in a false case. Under compulsion he was lodging the report. It is also alleged therein that Rs.3000/- which were to be given were also handed over. Memo Ex.PH was prepared regarding handing over the notes. Inspector Om Parkash made endorsement Ex.PF/2 Criminal Appeal No.430-SB of 2004 3 thereupon and registered a formal FIR for the offence punishable under the aforesaid sections, carbon copy of which is Ex.PF/2.
3.Thereafter, they went to the office of Deputy Commissioner (DC) Rohtak and IO moved application Ex.PE/1 to appoint some Gazetted Officer (G.O) to join the raiding party. Vide order Ex.PE General Manager (G.M) Haryana Roadways Rohtak was appointed for the purpose. Thereafter, they all came to the office of G.M. Rohtak. He was made aware about all the developments.
The currency notes wee initialled by Inspector Om Parkash and Virinder Lathar G.M. Rohtak PW Ranbir was deputed as a shadow witness. He was directed to hear the discussion in between PW Dharambir and accused Ishwar and to give signal by sweeping his hand on the head after the money is paid. They all went to the police Station, Sadar. The police party remained outside Police Station. PW Dharambir gave money to ASI Ishwar which was put by him in his pocket. Thereafter he took out that money and gave to the accused Subhash who put that amount in his pocket. Accused Ishwar returned one currency note of denomination of Rs.500/- to PW Dharambir. After receiving signal raid was conducted. When search of constable Subhash was conducted Rs.2500/- comprising the currency notes of denomination of Rs.500/- each were recovered from left hand side pocket of ppphis shirt. When checked the notes were found the same. The hands of accused Subhash were got washed with water containing sodium carbonate and colour of that water Criminal Appeal No.430-SB of 2004 4 turned pink. The currency notes were washed in such like water and colour also turned pink. Pocket of the shirt of accused Subhash was also washed in such type of mixture and colour of that water also changed to pink. When pocket of the shirt of accused Ishwar was washed in a water containing sodium carbonate, the colour of the same turned pink. When hands of ASI Ishwar were washed colour of that water also turned pink. A nip of sample was separated from each wash. Separate parcel of the shirt and notes were prepared. All the articles were sealed with seal `OP' and were taken into possession vide memo Ex.PJ duly attested by witnesses. The seal was handed over to G.M. Virender Lathar after the use. When the hands of PW Dharambir were also washed in such like fresh mixture, the colour of that water also turned pink. A nip of sample was separated and sealed with seal `OP'. That sample was taken into possession vide memo Ex.PK. The currency note of denomination of Rs.500/- handed over to Dharambir was taken into possession vide memo Ex.DA. Rough site plan of recovery Ex.PL about place of recovery was prepared. Statements of the witnesses were also recorded. The case property was deposited with Moharir Head Constable (MHC) of SVB and the accused were put in the lock up at Police Station Sadar, Rohtak. After obtaining sanction Ex.PC & Ex.PD to try accused and completion of necessary investigation report under Section 173 of Code of Criminal Procedure 1973 (Cr.P.C.) was prepared by Sunehra Singh Inspector/Station House Officer (SHO) and sent to the court for trial of the accused. Criminal Appeal No.430-SB of 2004 5
3.On finding prima facie case, the accused were charge-sheeted for the offence punishable under Section 7/13 of P.C.Act by the then Special Judge, Rohtak on 22.1.2003. The contents of the charge-sheet were read over and explained to the accused in simple Hindi, to which they did not plead gulity and clamed trial"
I have heard the learned counsel for the parties and have gone through the record available on the file carefully.
A perusal of the statement of the complainant reveals that ASI Ishwar Singh had demanded money from him for releasing his nephew. Thereafter, a raid was conducted by Vigilance staff as the matter was reported by the complainant to the Vigilance Department. PW7 Ranbir was appointed as a shadow witness. Inspector Om Parkash and General Manager Haryana Roadways were also joined with the raiding party. When the complainant went to the Police Station Sadar Rohtak and met ASI Ishwar Singh, complainant asked Ishwar Singh to release his nephew. The complainant gave Rs.3000/- to accused - Ishwar Singh. Thereafter, the accused handed over the said currency notes to a Constable sitting by his side, namely, Subhash. However, from the statements of the complainant as well as the shadow witness, it transpires that the possibility that appellant- Subhash has been falsely involved in this case cannot be ruled out. Appellant-Subhash had neither demanded money nor had directly accepted money from the complainant. Money after it was accepted by appellant- Ishwar Singh was handed over to appellant-Subhash. The possibility that appellant-Subhash had accepted the money handed over to him by his superiors without any demand cannot be ruled out. It is possible that the appellant-Subhash merely kept the money in his pocket as the same had Criminal Appeal No.430-SB of 2004 6 been handed over to him by his superiors and he had no intention to receive the same as bribe. Appellant-Subhash had never met the complainant before the raid nor had demanded bribe money from the complainant. In these circumstances, appellant-Subhash is liable to be acquitted of the charge framed against him by giving him the benefit of doubt.
So far as appellant-Ishwar Singh is concerned, the prosecution has been successful in proving its case against him. From the testimony of the complainant, it is evident that the bribe had been demanded and accepted by the appellant Ishwar Singh for release of the nephew of the complainant. When the hands of the appellant-Ishwar Singh were dipped in a solution of sodium carbonate, the colour of the solution turned pink.
There is no force in the argument raised by the learned counsel for the appellant-Ishwar Singh that there was an unexplained delay in lodging the FIR. As per the prosecution witnesses, they had left for the raid at about 2.30/2.45 PM. FIR in question had been registered at 2.30 PM. The FIR was delivered to the Area Magistrate at 6.00 P.M. Learned counsel for the appellant has,however, failed to convince me that the delay, if any, in lodging of the FIR is fatal to the prosecution case which otherwise is duly established by the prosecution witnesses.
There is also no force in the argument raised by the learned counsel for the appellant-Ishwar Singh that the prosecution case was liable to fail as no independent witness had been joined. PW8 Varinder Lathar, General Manager Haryana Roadways was joined with the raiding party and the said witness has duly corroborated the prosecution case with regard to recovery of the currency notes and the said witness has also corroborated the statements of the other prosecution witnesses with regard to turning of Criminal Appeal No.430-SB of 2004 7 the colour of the solution of the sodium carbonate qua hand wash of the appellant into a pink colour. This leads to the inference that the appellant- Ishwar Singh had dealt with the tainted currency notes. The said witness was an independent witness and had no enmity against the appellant-Ishwar Singh to involve him falsely in this case. Inspector Om Parkash PW9 has also fully established the prosecution case. The said witness was acting in discharge of his official duties and had no reason to falsely involve the appellant-Ishwar Singh in this case. In these circumstances, the learned trial Court rightly convicted and sentenced appellant-Ishwar Singh under Sections 7/13 of the Act. However, keeping in view the facts and circumstances of this case, the sentence qua imprisonment is on the higher side and is liable to be reduced.
Accordingly, this appeal is allowed qua appellant-Subhash and his conviction and sentence as ordered by the trial Court under Section 7/13 of the Act is set aside and he is acquitted of the charge framed against him. The conviction of appellant-Ishwar under Section 7/13 of the Act is upheld. However, the sentence qua imprisonment of appellant-Ishwar Singh under Section 7/13 of the Act is reduced from four years rigorous imprisonment to two years rigorous imprisonment.
Petition stands disposed of accordingly.
(Sabina) Judge March 03, 2010 arya