Punjab-Haryana High Court
State Of Punjab vs Vinod Kumar on 11 March, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM A-123-MA of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRM -A 123-MA of 2011
Date of Decision: March 11, 2013
State of Punjab
... Petitioner
Versus
Vinod Kumar
... 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. A.S. Kler, AAG, Punjab
Mr. A.P.S. Deol, Sr. Advocate with
Mr. D.B. Singh, Advocate,
for the respondent.
Paramjeet Singh, J.
The instant application has been filed under Section 378(3) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 05.08.2010 passed by the learned Special Judge, Ferozepur, whereby respondent has been acquitted of the charge framed against him under Sections 7, 13(2) of the Prevention of Corruption Act, 1988.
Brief facts of the case are that Manjit Singh complainant approached DSP, Vigilance Bureau, Ferozepur and got recorded his statement (Ex.P9) to the effect that:
CRM A-123-MA of 2011 2"he is resident of village Dodewala and is agriculturist by profession. They are two brothers having 40 acres of land which falls in joint name. With their consent, they partitioned the land and have reduced the same into writing and for getting the same sanctioned he approached the area Patwari Vinod Kumar on 26.2.2007. Patwari asked him to come again and when on 1.3.2007 he again approached the Patwari i.e. the accused and presented before him copy of family partition having been marked by the Naib Tehsildar, Abohar to get the joint khata partitioned, Patwari put off the matter on one pretext or the other. Finally, he asked him if he had to get his work done, he would have to pay Rs.8,000/- as expenses and then matter was settled at Rs.5,000/-. Since the complainant did not want to give bribe, so he told him that today he is not having money with him, whereupon, accused asked him to come tomorrow along with money. The complainant went away and today i.e. 2.3.2007 when he, for his personal work, had come to Abohar Amarjit Singh met him on the Bus stand to whom he narrated the entire occurrence, who asked that bribe should not be paid and such like corrupt officials should be arrested by the Vigilance Bureau. Thereafter, he came to the office of DSP, Vigilance and presented before him Rs.5,000/- currency notes and requested for taking legal action against the accused."
On the basis of statement (Ex.P9), FIR (Ex.P9/A) was recorded. The Investigation Officer arranged two official witnesses, namely Sucha Singh and Sandeep Singh. Thereafter, raid was conducted at the premises of the office of the accused-respondent and when complainant gave money to the accused, shadow witness gave agreed signal and then raid was conducted and accused was arrested and tainted money was CRM A-123-MA of 2011 3 recovered from the drawer of the accused. Thereafter, Glass tumbler was arranged, solution was prepared in which earlier hand of official witnesses were got washed and thereafter, hands of the accused were got washed.
When the hands of the officials witnesses were washed in the solution its colour did not change and when hands of accused were washed colour of the solution turned light pink and that solution was taken into possession.
After completion of investigation, challan against the accused - respondent was presented in the Court. Finding prima facie case against the accused under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988, he was charge-sheeted to which he pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, examined PW1 Sucha Singh, PW2 HC Javinder Singh, PW3 Manjit Singh, PW4 Amarjit Singh, PW5 Vikram Kumar, PW6 Constable Balbir Singh and PW7 DSP Vinod Kumar.
Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. All the incriminating circumstances were put to the accused. He denied the same and pleaded innocence.
The learned Trial Court, after appreciating the evidence, acquitted the accused-respondent of the charge framed against him vide impugned judgment dated 05.08.2010. Hence, this application for grant of leave to appeal.
I have heard learned counsel for the parties and gone through the impugned judgment also.
The learned trial Court, after appreciating the evidence on CRM A-123-MA of 2011 4 record, observed as under:-
"16. Arguments advanced by both the sides gave rise to the following points of determination:-
(i) Whether the prosecution has succeeded in proving demand, acceptance and recovery of the bribe money from the accused?
(ii) Whether there are major discrepancies in the statements of the witnesses demolishing the prosecution case?
17. So far as point of determination No.1 is concerned, from the statement of PW3 complainant Manjit Singh itself it becomes clear that there was no authority with the accused for getting the partition sanctioned by the accused as he is a mere patwari. It is also admitted during cross examination by PW3 that the land was joint, although at the initial stage he has tried to say that no other family member or his father own any land in his name and the land is only in his name as well as in the name of his brother. He has particularly stated that there is no other co-sharer in their land. This version of PW3 stands falsified from Ex.DW4/A jamabandi of joint khata which shows that there are approximately 60 co-sharers. Further cross examination of PW3 made it further clear that Binder Singh, Kulwant Singh, Tulsi, Santu Ram, Bega, Devi Lal, Roop Kumar, Rai Singh, Ram Kumar, Gopi Ram, Ram Partap, Inderaj, Banwari Lal, Hanuman, Daulat Ram and Amrinder Singh are also co-sharers with him and his brother. It is the established law that by way of compromise if the partition of the agriculture land has to be sanctioned that can be acted upon only if the compromise deed is amongst all the co-sharers. In this case although it is alleged by PW3 that there was compromise/partition deed but that was only between the complainant and his brother Didar Singh alias CRM A-123-MA of 2011 5 Binder Singh. In this eventuality it was not possible for the patwari to enter mutation of partition and, therefore, there arose no question of demand of bribe.
18. Further, in Ex.P9 PW3 has stated that accused demanded an amount of Rs.8,000/- as expenses but he has not specified as to if he demanded the amount as bribe, but when he appeared in the court he stated that on 1.3.2007 when accused demanded bribe from him he did not meet the Tehsildar or the SDM, Abohar to complaint against the conduct of the accused.
19. Second thing which demolishes the case of the prosecution regarding demand is that PW3 has stated that he never asked either Tehsildar or SDM or DSP (Vigilance) to take action against the accused, but if this version is taken to be in consonance with PW1 Sucha Singh, he has stated that on 1.3.2007 i.e. one day prior to the raid, his Chief Agriculture Officer directed him to join DSP (Vigilance) for some duty. It means that there was pre-planned trap at the asking of PW7 DSP Vinod Kumar that the complainant as well as shadow witness PW3 and PW4 reached DSP (Vigilance) on 2.3.2007 along with money which was taken into possession vide Ex.P1. The conduct of PW7 Investigating Officer does make it a fit case where acquittal of the accused can be safely held because of the fact that coupled with the material discrepancies in the statements of the witnesses there is mala-fide act and conduct on the part of PW7 who has also earlier been charge sheeted vide Ex.DW3/A, DW3/B and even FIR against the Investigating Officer is lodged, copy of which is Ex.DW5/A. In this eventuality if the Investigating Officer was to conduct raid he should have sought permission of the higher officer, but he did not do so, rather proceeded at his own and asked the Chief Agriculture Officer to send PW1 on CRM A-123-MA of 2011 6 2.3.2007 presuming that on 2.3.2007 PW3 Manjit Singh and PW4 Amarjit Singh are coming to him. The matter becomes more grave when PW3 Manjit Singh complainant has categorically stated that on 2.3.2007 when he left his village for Abohar and reached Abohar till then he has not made up his mind to get the accused trapped from Vigilance Bureau. If the complainant had not made up his mind to get the accused trapped from the Vigilance Bureau and he was only inspired by PW4 then where from arose the occasion for PW7 to ask the Chief Agriculture Officer to send PW1 to his office on 1.3.07.
20. Therefore, it becomes clear that there is no specific demand made by the accused to get mutation of partition sanctioned on the basis of compromise deed because as per DW4 there were 60 co-sharers in this joint khata. Patwari was not competent to enter the mutation of partition on the basis of only two share holder compromise and, therefore, there was no occasion for the accused to ask for the bribe.
21. Then comes the part of acceptance and recovery. The money has not been recovered from the possession of the accused directly, rather the same has been recovered from his drawer. When the money has been recovered from the drawer it becomes duty of the prosecution to prove that it was the accused who has accepted the bribe and kept the same in his drawer. As per 1997(2) RCR 16, if money has been recovered from drawer, plea of the accused that tainted money was planted in his drawer without his knowledge appears to be probable. The Hon'ble Supreme Court in the aforesaid authority in the single head note, which is the concise form of para Nos. 8 to 10 has held that:-
"Prevention of Corruption Act, 1947, Section 5(1)(d)-- Indian Penal Code, Section 161 - Trap case - Money CRM A-123-MA of 2011 7 recovered from drawer of accused - Trap witness stated that accused asked him to put money in the drawer of his table - No evidence corroborating his deposition - Statement of trap witness cannot be relied upon. Plea of accused that tainted money was planted in the drawer without his knowledge appeared to be probable - Could not be said that accused tactitly accepted illegal gratification or obtained same within meaning of Section 5(1)(d) - Accused acquitted giving benefit of doubt."
The Hon'ble Punjab & Haryana High Court in 1997(1) RCR 259, has observed regarding mode and manner in which hands of the accused were washed. The Hon'ble High Court has observed in head notes `A' & `B' as under:
`A' Prevention of Corruption Act, 1988, Section 13 (20 and 7 - Raid by police party - Currency notes recovered from drawer of accused by police officer - Hands of accused turned pink when put in solution - Hands of accused caught hold by police officer by wrist
- This officer had earlier touched currency notes - Officer did not ensure that somebody else took the hand wash - No due care was observed - Accused acquitted giving benefit of doubt.
`B' Prevention of Corruption Act, 1988, Section 13(2) and 7 - Raid by police officer - recovery of currency notes effected from drawer of and not from person of accused - In this situation possibility of accused not being present at relevant time cannot be ruled out - Accused acquitted, inter alia, on this ground."
This authority is directly applicable to the present case and totally demolishes the case of the prosecution. It is CRM A-123-MA of 2011 8 alleged by PW1 Sucha Singh that when they reached the office of the accused, accused was already caught hold by the Vigilance officials from his wrists. PW 1 further stated during his cross examination that when solution was presented nothing was put in the water. If this is the position that the accused was already caught hold by the Vigilance officials from his hands / wrist and nothing was put in the water and when his hands were washed colour of the solution did not change and it only changed when hand of the accused was put in the same, story of the prosecution becomes highly doubtful and improbable one.
22. This version of the prosecution has to be independently proved beyond the statements of PW3 and PW4, but it cannot be said that PW1 Sucha Singh is an independent witness because as admitted by him he had been a witness of Vigilance Bureau in 3 or 4 unsuccessful traps. In the light of 1987(1) RCR 672 and 1998(2) RCR (Criminal) 295 the statements of complainant and shadow witness are that of accomplice and if it is not supported by any independent corroboration it has not to be believed. In 1991(1) RCR 694 the Court held that version that in the presence of shadow witness accused has accepted bribe is not believable. The version of PW3, PW4 and PW1 in the light of the discrepant statement of PW7 do not inspire confidence and there is created a lot of doubt in the prosecution case of which benefit has to go in favour of the accused and against the prosecution.
23. Coming to the point of discrepancies, as per PW1 he reached the office of DSP at about 7 a.m. and after performing 30/35 minutes of writing work they proceeded for raid,but as per PW3 they reached the office of DSP, Vigilance Bureau, Ferozepur at 9.15 a.m. PW4 gave time to be 9.30 a.m. CRM A-123-MA of 2011 9 As per PW1 they proceeded for raid on two vehicles, but PW3 says that they proceeded on one vehicle. PW4 in his examination-in-chief says that they proceeded on one vehicle, but in cross examination he admitted that they proceeded on two vehicles. PW7 in this regard says that they proceeded on government vehicle at about 10.30 a.m. and reached the office of the accused at 12.15 p.m. As per PW1, shadow witness gave the signal from chobara, but PW4 says that he gave the agreed signal from stair-case, but PW7 says that agreed signal was given from the gate of office of the accused. As per PW1, they returned to the head office at Ferozepur and were produced before the SSP and he was made free at 4 p.m., but PW7 says that they were free from Abohar at 5 p.m. and returned to Ferozepur at 7.30 p.m. Regarding their return PW3 and PW4 both say that they did not return to Ferozepur and they were made from from Abohar itself. As per PW3 and PW4 police party remained present in the vehicle, but PW7 says that they were scattered around the place of raid. Another major discrepancy is that PW7 Investigating Officer says that when he conducted house raid of the accused PW3 and PW4 were along with him,but PW3 and PW4 says that they were not joined in the vigilance party when house of the accused was searched. PW4 says that no family member in the house of the accused was present when house raid was conducted, but information memo Ex.P7 shows that information was given to Smt. Suman Lata wife of the accused. There was no occasion for PW1 to reach the office of Vigilance Bureau at 7/7-05 a.m. because DSP reached the office on 2.3.2007 at about 9/9.15 a.m.; whereas, PW1 is stating that after doing paper of about 30/35 minutes they proceeded for raid. PW7 has categorically stated that he has not contacted the Chief Agriculture Officer on 1.3.2007 to CRM A-123-MA of 2011 10 depute one ADO for raid. He has further categorically denied that Sucha Singh ADO reached in his office at 7 a.m. on 2.3.2007. PW7 Investigating officer also says that he did not do any writing work on return at Vigilance Bureau, Ferozepur nor obtained signatures of complainant, shadow witness on any document after return from raid. Then where supplementary statements were recorded has not been established. He categorically stated that the complainant and shadow witness accompanied the raiding party for Ferozepur after raid, but this version is falsified from the statement of PW1 who says that complainant and shadow witness returned to Ferozepur and they all were produced before the SSP. Regarding production of PW1, PW3 and PW4 before the SSP, Ferozepur is concerned, PW7 denied it having no memory of the same.
24. In the light of what has been discussed above, I have come to the conclusion that the prosecution has miserably failed to prove guilt of the accused beyond any shadow of doubt and hence the accused stands acquitted of the charge framed against him....."
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. This view has been reiterated in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755', and 'Chandrappa v. State of Karnataka, (2007) 4 SCC 415'.
A Division Bench of this Court in 'State of Punjab v.
Hansa Singh, 2001(1) RCR (Criminal) 775', while dealing with CRM A-123-MA of 2011 11 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) 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."
In 'Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Hon'ble Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"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."
Similarly, in the case of 'State of Rajasthan v. Shera Ram alias Vishnu Dutta , (2012) 1 SCC 602', the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken CRM A-123-MA of 2011 12 a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and CRM A-123-MA of 2011 13 the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Learned State counsel has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge.
As such, this application for leave to appeal is dismissed.
March 11, 2013 [Paramjeet Singh] vkd Judge