Punjab-Haryana High Court
Ram Kishan Yadav vs State Of Haryana on 10 September, 2014
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRA-S-2680-SB of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-2680-SB of 2012 (O&M)
Date of Decision:-10.09.2014
Ram Krishan Yadav
.... Appellant
Versus
State of Haryana
..... Respondent
Present: Mr. Bipan Ghai, Sr. Advocate with Mr. Gaurav Mohunta
and Mr.Gaurav Gogna, Advocates for the appellant.
Mr. R.N.Bhardwaj, AAG, Haryana.
Jitendra Chauhan, J.
The appellant Ram Kishan Yadav has filed the present appeal against the judgment/order dated 11.09.2012, passed by the Special Judge, Faridabad, whereby, the appellant was convicted under sections 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000 or in default of payment of fine to further undergo RI for three months and two years RI and to pay a fine of Rs.2000 or in default to further undergo RI for six months, respectively. The substantive sentences were ordered to run concurrently.
The brief facts, as set out in the judgment of the Special Judge under the Act, Faridabad, are as under:
According to prosecution case, on 3.5.2010, complainant Jai Chand Aggarwal approached State Vigilance Bureau, Faridabad, and made a complaint Ex.PD to the effect that he is resident of House No.1/689, Raja KUMAR SUMIT 2014.11.13 15:04 I attest to the accuracy and authenticity of this document CRA-S-2680-SB of 2012 -2- Garden, Faridabad. He alongwith his younger brother Babu Ram has been running dairy by the name and style of Aggarwal Dairy behind the Hide Out Restaurant, Palwal, near Ganda Nala for making cheese etc. On 27.4.2010, Shri R K. Yadav (the appellant), Food Inspector, Palwal, took the samples of cheese from his dairy. These samples were taken from his brother Babu Ram. He had also reached the spot. When the complainant had talked to Food Inspector RK Yadav, he told him that he had already taken the sample but he would get it passed from the concerned Laboratory where he wields a great influence but he shall have to pay Rs. 25,000/- in lieu of that and if he did not pay him Rs. 25,000/-, then he would get the sample failed. In this context, he contacted R.K. Yadav, Food Inspector many a times telephonically as well as in his office. He (complainant) had given him the time for today for handing over Rs. 25,000/-. Food Inspector gave him time to meet him at Faridabad today after he got freed from his duty to take Rs. 25,000/- and told him to talk to him telephonically at about 6.00 p.m. and he would reach there. Complainant stated that he did not want to give bribe. Complainant further stated that neither he has any enmity with R.K. Yadav nor has any monetary dealings with him.
On the said complaint of Jai Aggarwal, Inspector Mahavir Singh (PW12) made his endorsement Ex.PN and sent it to the Police Station SVB Gurgaon for lodging the FIR. Inspector Manohar Lal recorded formal FIR (copy Ex.PM) and made his endorsement Ex.PD/1 on it. Inspector Mahavir Singh then constituted a raiding party and approached Deputy Commissioner, Faridabad and moved application Ex.PO for deputing a Duty Magistrate to participate in the raid. Shri Gurudev Singh, Naib Tehsildar was asked to accompany the raiding party as Duty Magistrate and was apprised of the facts. On the way, in the presence of Duty Magistrate Shri Gurdev Singh, Inspector KUMAR SUMIT 2014.11.13 15:04 I attest to the accuracy and authenticity of this document CRA-S-2680-SB of 2012 -3- Mahavir Singh asked the complainant to produce the money to be given as bribe on which complainant produced rupees 25,000/- in the form of two currency note of Rs. 1000/- and forty six currency notes of Rs.500/- each, supposed to be given as bribe, which were initialed by Inspector Mahavir Singh and Naib Tehsildar Gurudev Singh. Numbers of those notes were noted. Phenolphthalein powder was applied on these notes. These notes were handed over to Jai Chand Aggarwal - complainant, with the instruction to give the same to the accused on his demand. A memo Ex.PF was prepared in this regard. Constable Ravinder Kumar was deputed as a shadow witness with the instructions to follow the complainant and to over-hear the conversation between the accused and the complainant, to see the exchange of bribe money and thereafter give signal to the raiding party by raising his left hand over his head. Thereafter, complainant was asked to contact Food Inspector R.K. Yadav telephonically who called him near Moti Mahal Restaurant, Sector 16 and informed him that he was coming on the gate of parking. Raiding party took their position at a place where they could see the complainant as well as the shadow witness. On receipt of the signal from the shadow witness, raiding party apprehended the person sitting on the driver seat of a red coloured Maruti Zen bearing No. HR- 51Z-8013 who was counting the money received as bribe. After giving the introduction of the raiding party, the said bribe money was recovered from the hands of accused and was found to be the same as handed over to the complainant. Hand wash of the complainant and accused was taken in the solution of sodium carbonate. Every time solution turned pinkish. The same was taken into separate nips and was taken into possession. Accused was arrested. Statements of witnesses were recorded. Rough site plan of the place of occurrence was prepared. During further investigation, scaled site plan of the place of offence was got prepared. The KUMAR SUMIT 2014.11.13 15:04 I attest to the accuracy and authenticity of this document CRA-S-2680-SB of 2012 -4- case property was deposited with MHC of Police Station SVB Gurgaon. Sanction order to prosecute the accused was obtained from the competent authority. After completion of all other necessary formalities of investigation, challan was submitted in the Court so as to prosecute the accused Ram Kishan Yadav.
After presentation of challan, charges under Section 7 and 13(1)(d) of the Prevention of Corruption Act were framed against the accused/appellant to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-6 Jai Chand Aggarwal-complainant, who was declared hostile, PW-8 Sh.
Gurudev Singh, Naib Tehsildar, PW-9 Constable Ravinder Kumar-
shadow witness and PW-12 Inspector Mahavir Singh, Investigating Officer. PW-10 Addl. Chief Judicial Magistrate, Faridabad proved recording of statement of PW-6 Jai Chand Aggarwal complainant, under Section 164 Cr.P.C.
PW-6 Jai Chand Aggarwal-complainant, deposed that he and his brother Babu Lai used to run a diary under the name and style of Aggarwal Diary situated behind Hide Out Restaurrant, Palwal. On 27.04.2010, at about 3.00 p.m, a raid was conducted by Food & Suppply Department on their diary, in which sample of Paneer was taken by R.K. Yadav, GFI, Palwal. Thereafter, he was sitting at his at Faridabad. There a police personnel, who was known to him, came there. He complained to him that Food & Supply Department was repeatedly taking Paneer sample from their shop, though every time the sample is within parameters. The police officials told him that if he is willing to spend some money, they can make arrangement that no GFI will ever come to KUMAR SUMIT take any sample and for this job, he demanded Rs.25,000/-. He further 2014.11.13 15:04 I attest to the accuracy and authenticity of this document CRA-S-2680-SB of 2012 -5- deposed that he gave Rs.25,000/- to that police official and thereafter one application was dictated and signed by him which is Ex.PD.
PW-8 Gurudev Singh, Naib Tehsildar, who was deputed as Duty Magistrate by Deputy Commissioner, Faridabad, has corroborated the version of PW12-Inspector Mahavir Singh and PW-8 Constable Ravinder Kumar, on all the material points and identified the accused as well as the currency notes Ex.PI to Ex.P48 and other memos.
PW-9- Constable Ravinder Kumar is the shadow witness, who deposed that on 03.05.2010, he was posted as Constable attached to Vigilance Department, Police Station SVB, Gurgaon. On that day, he was present in the office when a person came in the office and presented a complaint to Inspector Mahavir Singh (PW12). On that complaint, Inspector Mahavir Singh constituted a raiding party and they came to Faridabad along with the complainant and reached at the camp office of Deputy Commissioner, Faridabad and written an application to Deputy Commissioner, Faridabad for taking permission. Deputy Commissioner deputed Naib Tehsildar Gurudev Singh as Duty Magistrate. Inspector Mahavir Singh took Naib Tehsildar Gurudev Singh and started proceeding towards Metro Hospital and then, asked the complainant to hand over the currency notes meant for bribe. A memo was prepared and the notes were initialed by the IO and the Naib Tehsildar. He further deposed that he was deputed to follow the complainant and to over hear the conversation between the accused and the complainant. PW-12 Mahavir Singh asked the complainant to contact R.K. Yadav on his mobile. R.K. Yadav told the complainant that he is reaching near Moti Mahal within 10 minutes. After some time, a red colour Maruti Zen car KUMAR SUMIT 2014.11.13 15:04 I attest to the accuracy and authenticity of this document CRA-S-2680-SB of 2012 -6- came there. The complainant then proceeded towards the driver of that car. The person sitting on driver side is present in Court, who asked the complainant whether he had brought money or not. The complainant handed over the currency notes to the accused and the accused was apprehended while counting the tainted money and on enquiry, he disclosed his name as R.K. Yadav, GFI posted at Palwal.
This witness has duly testified the entire prosecution story that how the bribe was given by the complainant to the accused.
In his statement under Section 313 Cr.P.C., the appellant pleaded false implication. He also led evidence in defence.
After appraisal of entire evidence, the ld. Special Judge convicted and sentenced the accused/appellant as stated in para No.1 of the judgment.
Aggrieved by the judgment/order, the accused/appellant preferred the present appeal, which was admitted on 17.09.2012, by this Court.
Learned Counsel for the appellant contends that the star witness Jai Chand Aggarwal, PW-6, did not supported the case of the prosecution and deposed that he did not know the accused. He was made to sign some blank papers by the police in the office of State Vigilance Bureau, Faridabad. He further contends that the police told him that if the appellant is willing to spend some money, no Food Inspector would trouble him in the future, in case an amount of Rs.25,000/- is paid for it. He further contends that on 03.05.2010, the said police official took him to State Vigilance Bureau, Faridabad and gave him Rs.25,000/-, where, the police officials made him to sign against the appellant. The witness KUMAR SUMIT 2014.11.13 15:04 I attest to the accuracy and authenticity of this document CRA-S-2680-SB of 2012 -7- objected to state as to why the name of the appellant was being mentioned when the witness did not know him.
Secondly, the learned counsel contends that the prosecution has not proved the requirement of section 7 of the Act i.e. there should be demand of illegal gratification, acceptance and recovery thereof has to be proved. In the present case neither there is any demand of illegal gratification nor there is acceptance of the gratification, thus, in the absence of these ingredients, the conviction can not be upheld.
Thirdly, the learned senior counsel contends that as per FSL report, the numbers on the recovered currency notes did not match with the numbers of the currency notes mentioned in the memo of recovery prepared by the police officials. Thus, it is planted recovery and all the memos had been prepared subsequently by the police while sitting in the office of State Vigilance Bureau, Faridabad.
Fourthly, the learned Senior Counsel contends that no independent witness was joined and the shadow witness PW 9-Constable Ravinder Kumar, being from the police department, his statement can not be relied upon as he was to follow his superiors.
Lastly, the learned Senior Counsel contends that the appellant had no reason to demand the alleged bribe as the sample taken by the appellant had already been sent to the laboratory for analysis and the appellant was not in position to help the complaint.
On the other hand, the learned State Counsel contends that the prosecution case stands proved from the statement of PW-8 Sh.Gurudev Singh, Naib Tehsildar-cum-Executive Magistrate, who joined the raiding party and witnessed the whole recovery proceedings. KUMAR SUMIT 2014.11.13 15:04 I attest to the accuracy and authenticity of this document CRA-S-2680-SB of 2012 -8- His statement is corroborated by the Shadow Witness PW-9 Constable Ravinder Kumar. The learned State counsel further submits that if we read the cross-examination of complainant-PW-6 Jai Chand Aggarwal, coupled with his statement Ex PL under section 164 Cr.P.C recorded before PW-10, the Additional Chief Magistrate, Faridabad, the prosecution case also stands proved. Then, there is statement of PW12, Investigating Officer Mahavir Singh, who headed the raiding party and had no motive to falsely implicate the appellant in this case. Lastly, the learned counsel contends that demand, acceptance and recovery stands fully proved in this case.
I have heard the learned senior counsel for the appellant, the learned State counsel and have gone through the entire trial court record with their able assistance.
In this case, though the complainant-Jai Chand Aggarwal, had resiled in order to help the appellant, but there are circumstances on record which go to establish the case of the prosecution. The complaint Ex.PD addressed to the Vigilance Officers was in his own handwriting, thereby, ruling out any possibility of any blank paper being signed in the office of State Vigilance Bureau, Faridabad. Moreover, the complainant has himself admitted in his cross-examination that the police had made an application Ex.PL/1 for getting his statement Ex.PL recorded before a Magistrate, which was recorded by PW-10, the Additional Chief Judicial Magistrate. The statement recorded under section 164 Cr.P.C coupled with the statement of other prosecution witnesses clinches the matter. In the circumstances, subsequently, resiling of the witness from the original position would be of no help to the accused/appellant. PW-10 the Addl. KUMAR SUMIT 2014.11.13 15:04 I attest to the accuracy and authenticity of this document CRA-S-2680-SB of 2012 -9- Chief Judicial Magistrate, has stated that the statement of the complainant recorded under section 164 Cr.P.C was recorded as per rules and no Police Officer was present in the Court room.
The Learned counsel for the Appellant could not point out any convincing circumstance to disbelieve the testimony of PW-10 of the case, PW-12, Inspector Mahavir Singh, whose statement has been fully corroborated by PW-8 Sh.Gurudev Singh, Naib Tehsildar, an independent witness and PW-9 Constable Ravinder Kumar-Shadow witness. No ambiguity or motive to falsely implicate the accused/ appellant has been suggested to any of the witnesses. It is to be noticed here that application Ex.PD is dated 03.05.2010, duly written by complainant Jai Chand Aggarwal and statement under section 164 Cr.P.C. was recorded by Addl. Chief Judicial Magistrate on 28.09.2010. His statement in Court in this case was recorded in court on 01.08.2011, when for the first time he resiled from his earlier versions. The explanation furnished by this witness that he was made to sign some blank papers does not inspire confidence. Till 01.08.2011, the date of his resiling from his earlier version, he did not submit any complaint before any authority against the Vigilance official, so his hostile testimony appears to be dubious. In his cross-examination by the learned PP for the State, he had stated that it is correct that he himself had taken Rs.25,000/- to the Vigilance office on 03.05.2010. PW-6 Jai Chand Aggarwal, during his cross examination further admitted that statement of Ex.PL, under section 164 Cr.P.C was made by him before the Addl. Chief Judicial Magistrate. Statement of PW-10 the Addl. Chief Judicial Magistrate proved that statement Ex.PL recorded under section 164 KUMAR SUMIT 2014.11.13 15:04 I attest to the accuracy and authenticity of this document CRA-S-2680-SB of 2012 -10- Cr.P.C was made by the complainant, when he was all alone in the Court and that he gave cooling time of half an hour to the complainant to think about in the Court room. So, the argument of the learned counsel that the complainant has damaged the entire prosecution case is repelled.
Coming to the second contention of the learned Senior Counsel that the prosecution had failed to prove the requirement of section 7 of the Act, it is mentioned here that qua proving the demand of illegal gratification, the statement of the complainant before the Magistrate(PW-10) is substantial proof that illegal gratification to the tune of Rs.25,000/- was demanded by the accused to get his samples passed from the State Food Laboratory, qua the factum of acceptance and recovery, it stands completely proved that recovery of tainted money was recovered from the Accused/ appellant from the spot because the number of notes were noted, signed and treated with phenolphthalein powder and his hands turned pink in dipping in Sodium Carbonate solution proving the factum of recovery. Moreover, as per section 20 of the Act, the legal presumption is against the accused and it has to be presumed that the accused received illegal gratification as a motive or reward for doing or forbearing to do any official act. The only condition for drawing with a legal presumption under section 20 of the Act is that, it should be proved that the accused has accepted or agreed to accept any illegal gratification. This section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept the gratification. While going through the statements of PW-6 complainant, PW-8 Gurudev Singh Naib Tehsildar and PW-9 Constable Ravinder Kumar, this Court KUMAR SUMIT 2014.11.13 15:04 I attest to the accuracy and authenticity of this document CRA-S-2680-SB of 2012 -11- arrives to the conclusion that the accused/ appellant has demanded, accepted the illegal gratification, the recovery of which was effected from the Accused/ appellant by the raiding party.
Coming to the third contention of the learned counsel, it is mentioned that illegal gratification was to the tune of Rs.25,000/- in which the denomination was 46 notes of Rs.500 Ex.P1 to P.46 and two notes of Rs.1000/- Ex.47 to Ex.P48. Thus, as per the FSL report, out of these notes, only four notes were found to be not matching, which can be best attributed to be a clerical mistake, while preparing recovery memos and doing paper work by the Vigilance officials. Rest all were found in order. All the currency notes were initialed by PW-8 Sh. Gurudev Singh Naib Tehsildar, thus providing credence to the fact that they were the same notes.
The contention of the learned Senior Counsel that no independent witness was joined in the raiding team is not of much help to the Accused/ Appellant, when PW-8 Sh. Gurudev Singh, Naib Tehsildar, vested with the powers of Executive Magistrate was with the raiding party. He was neither a member of the police force nor under the influence of Vigilance Department. He was deputed to join the raiding team by the Camp Office of the Deputy Commissioner, Faridabad. In such like cases, no ordinary person wants to be a part of raiding party. The shadow witness PW-9 Constable Ravinder Kumar has completely supported the case of the prosecution proving the acceptance and recovery of illegal gratification. Just because the prosecution witnesses are official witness, does not mean that they would not be stating the truth and their credibility can not be impeached merely by the colour of KUMAR SUMIT 2014.11.13 15:04 I attest to the accuracy and authenticity of this document CRA-S-2680-SB of 2012 -12- their office. The prosecution witnesses are held to be trustworthy witnesses.
Keeping in view, the above discussion, this court affirm the judgment of conviction of the accused/ appellant.
Lastly, the learned Senior Counsel contended that the sentence imposed is on the higher side. He has a wife, two children, widowed mother and is the sole bread winner of the family. In the opinion of this Court, though, these are not mitigating circumstances to reduce the sentence, but, taking a lenient view in the matter of sentence on humanitarian grounds, this Court reduce the sentence from two years RI to one year RI, subject to the deposit of Rs.50,000/- as fine, over and above the fine already deposited, within three months, failing which the accused/ appellant has to undergo two years RI as imposed by the Trial Court.
With the above modification and the reduction in the sentence, this appeals fails and is, hereby, dismissed. The accused/ appellant shall surrender before the Chief Judicial Magistrate, Faridabad, to undergo the remaining sentence.
Before parting with the judgment, this Court comments on the conduct of the witness, PW-6 Jai Chand Aggarwal, complainant, who set the Vigilance machinery in the motion for getting nabbed an corrupt official, gave an application Ex-PD to the Inspector Vigilance with his own hand-writing, joined the investigation, signed the police memos, got recorded his statement under section 164 Cr.P.C before the Addl. Chief Judicial Magistrate on 28.09.2010 and then resiled from his earlier version while appearing in the witness box on 01.08.2011. This witness KUMAR SUMIT 2014.11.13 15:04 I attest to the accuracy and authenticity of this document CRA-S-2680-SB of 2012 -13- has no regard for the truth and the solemn oath taken before the Court. It is fit case, where the witness/complainant PW-6, Jai Chand Aggarwal, may be proceeded against under section 193 IPC, for resiling from his earlier versions, while appearing before the Court as PW-6 on 01.08.2011, fully knowing that he is giving false evidence to help the accused/ appellant. The trial Court i.e. Special Judge under the Prevention of Corruption Act, is directed to proceed against PW-6 Jai Chand Aggarwal according to law.
10.09.2014 (JITENDRA CHAUHAN)
sumit.k/sk JUDGE
KUMAR SUMIT
2014.11.13 15:04
I attest to the accuracy and
authenticity of this document