Punjab-Haryana High Court
Vinod Kumar vs State Of Punjab on 21 December, 2012
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Appeal No. 2482-SB of 2004( O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 2482-SB of 2004( O&M)
Date of Decision:- 21st December, 2012
Vinod Kumar
Petitioner
Versus
State of Punjab.
Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI.
Present: Mr.K.S.Nalwa, Advocate,
for the appellant.
Ms.Harsimrat Rai, DAG, Punjab,
for the respondent.
***
Naresh Kumar Sanghi, J.
Challenge in this appeal is to the judgment of conviction and order of sentence dated 07.12.2004 passed by learned Special Judge, Patiala, whereby the appellant was held guilty for the offences punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988, and ordered to undergo the following sentences:-
Offence RI Fine In default
imprisonment
Section 7 2 ½ years ` 2000/- R.I. of three
months
Criminal Appeal No. 2482-SB of 2004( O&M) 2
Offence RI Fine In default
imprisonment
Section 13(1) 2 ½ years ` 2000/- R.I. of three
(d) read with months
Section 13(2)
Both the sentences were ordered to run
concurrently.
Brief facts of the case are that complainant Bal
Kishan (PW9) was a Contractor and used to take contract
of lifting the residue wheat and paddy from the grain
market, Dakala. In the year 2002-03, he had obtained the tender from the Market Committee, Dakala, for a total consideration of `8000/- out of which he deposited `2000/-. At the time of execution of the contact, Jai Singh was Secretary of the Market Committee, Dhakala, who was transferred in July, 2002 and appellant Vinod Kumar replaced him as a Secretary of the above said Market Committee. During the season of paddy, appellant Vinod Kumar contacted Bal Kishan (PW-9) and demanded an illegal gratification of `5,000/- from him otherwise the contract was to be cancelled. Bal Kishan (PW9) showed his helplessness in paying the demanded amount but ultimately the matter was settled at `4000/- on 26.10.2002.
On 28.10.2002, complainant Bal Kishan (PW9) Criminal Appeal No. 2482-SB of 2004( O&M) 3 contacted Labh Singh son of Ram Partap, resident of Balbehra,who advised him to report the matter to the Vigilance Bureau. Both of them went to Jaipal Singh (PW10), Deputy Superintendent of Police, Vigilance Bureau, Patiala, who recorded the statement (Ex.PS) of Bal Kishan (PW9) which was read over to him and in token of its correctness, he signed the same. Bal Kishan (PW9) handed over seven currency notes of the denomination of `500/- each and five notes of the denomination of `100/- each to Jaipal Singh (PW10) who treated them with phenolphthalein powder and handed over the same to Bal Kishan (PW9) with a direction to pass on the same to appellant Vinod Kumar on his demand. Memo (Ex.PQ) in that regard was prepared which was signed by Bal Kishan (PW9) and other witnesses. Jai Singh, Deputy Superintendent of Police, demonstrated a piece of paper by treating the same with phenolphthalein powder and the water turned pink. The said water was stored in a nip and the same was sealed with the seal impression 'JPS'. Two official witnesses, namely, Randhir Singh (not examined during trial) and Anil Kumar (PW7) were joined in the police party. At about 1.30 P.M., Bal Kishan (PW9) along with police party left for Criminal Appeal No. 2482-SB of 2004( O&M) 4 Dakala. Complainant Bal Kishan (PW9) and Labh Singh (PW8) entered the office of Market Committee, Dakala, where Bal Kishan (PW9) handed over the tainted currency notes to appellant on his demand and, thereafter, Labh Singh (PW8) went out of the room to pass a signal to the police party.
Jaipal Singh, Deputy Superintendent of Police (PW10) and other persons accompanying him entered into the office of the appellant and directed him not to move from his chair. A glass of water was arranged. One of the members of the raiding party was asked to dip his fingers in the water but there was no change in its colour. Thereafter, the hands of the appellant were dipped in that water and the same turned pink. Thereafter the pink water was stored in a nip which was afterwards sealed with the seal bearing impression 'JPS' and taken into police possession vide memo (Ex.PL). The appellant threw the tainted money beneath the table after taking it out from his pocket. The tainted amount was taken into possession vide memo (Ex. PM) after comparing the numbers of the currency notes mentioned in the list prepared earlier in that regard. The witnesses put their respective signatures on the memo Criminal Appeal No. 2482-SB of 2004( O&M) 5 (Ex.PM). On personal search of appellant `7090/- in cash, one wrist watch and goggle were recovered and the same were taken into police possession vide memo (Ex.PN). Pocket of the trouser of the appellant was dipped into the solution of water and sodium carbonate and the colour of the pocket of the trouser turned pink. The said solution was transferred into a nip and the same was sealed with the seal bearing impression 'JPS' and taken into police possession vide memo (Ex. PO). Certain record from the office of the appellant was also taken into police possession vide memo (Ex.PG). Site plan (Ex.PT) was prepared. Intimation regarding the arrest of the appellant was given to Nachhattar Singh, Accountant of the Market Committee, Dakala, vide memo (Ex.PU). House of the appellant was also searched and memo (Ex.PV) to that effect was prepared. The nips containing the pink water were sent to the Forensic Science Laboratory.
After completion of investigation, the charge sheet in terms of Section 173 of the Code of Criminal Procedure was presented for prosecution of the appellant. Learned Special Judge, Patiala, finding a prima facie case against the appellant, framed the charges for the offences punishable Criminal Appeal No. 2482-SB of 2004( O&M) 6 under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988, to which the appellant pleaded not guilty and claimed trial.
In order to substantiate its allegations, the prosecution examined the following witnesses:-
PW-1 Minku Ram, Senior Assistant, Office of Punjab Mandikaran Board, Chandigarh, deposed that the concerned file and other papers were put up before Shri Mandeep Singh Sandhu, Secretary, Punjab Mandikaran Board, Chandigarh, who, after going through the file and also after due application of mind, granted sanction (Ex.PA) for prosecution of Vinod Kumar appellant in this case.
PW-2 Gurbhej Singh MHC tendered his affidavit (Ex.PB).
PW-3 Jawinder Slingh Sodhi, Senior Assistant in the office of District Mandi Officer, New Grain Market, Patiala, brought the original record in respect of the appellant and proved the letter dated 15.11.2002 (Ex.PC) signed by Shri Surender Singh Tiwana, whereby, service particulars of the appellant were sent to Vigilance Department. He also proved the attested photo copies of service book of the appellant containing six pages Criminal Appeal No. 2482-SB of 2004( O&M) 7 (Ex.PC/1) and copy of the posting order of the appellant (Ex.PC/2).
PW-4 Nachhattar Singh deposed that previously he was posted as Accountant in the Market Committee, Dakala, District Patiala, and remained posted there from December, 2001 to March, 2003 and Vinod Kumar appellant was posted as Secretary, Market Committee, Dakala. On 28.10.2002, he had handed over the papers regarding contract to lift the wastage of paddy consisting of 10 pages to the investigating agencies. According to him, the contract to lift wastage of paddy of all the grain markets falling within the jurisdiction of the Market Committee, Dakala, was given to Bal Kishan son of Uggar Sain, resident of Dakala, for the year 2002-03 for ` 8000/- and the latter deposited `2000/- on the spot on 12.04.2002. The contract in this regard was mentioned at page 4 which bore his signatures as also of the Secretary and the then Administrator of the Market Committee, Dakala. He proved the writing (Ex.PD) in this regard as also undertaking of Bal Kishan complainant (Ex.PE), who also proved file (Ex.PE) consisting of 10 pages. He further deposed that he had handed over one dispatch register of the Market Committee, Criminal Appeal No. 2482-SB of 2004( O&M) 8 Dakala, consisting of pages 1 to 93, to Jai Pal Singh, DSP of Vigilance Bureau, and the same were taken into possession vide memo (Ex.PG), which was attested by him and other witnesses. He also proved the Register (Ex.PH) in which the first three serial numbers of first page were blank and entry at Sr.No.4 was made on 07.01.2002 and the last entry bore Sr. No. 1062 dated 22.10.2002. This witness also stated that his statement was recorded by the Investigating Officer.
Ashok Kumar Constable PW5 tendered his affidavit (Ex.PJ).
Sanjiv Kumar Constable PW6 tendered his affidavit (Ex.PK).
Anil Kumar Bansal, SDO, Public Health, while appearing as PW7 deposed that on 28.10.2002, he was posted as SDO in Sub Division No.3, Public Health, Patiala, and on that day, the DSP Vigilance, Jai Pal Singh, came to him and joined him in investigation with the written order. The DSP introduced him with the complainant Bal Kishan, shadow witness Labh Singh, Randhir Singh PW and other officials of the raiding party. He further deposited that he was apprised of the facts of the case and was told that a Criminal Appeal No. 2482-SB of 2004( O&M) 9 raid was to be conducted and thereafter, they reached the office of the Market Committee, Dakala. The complainant and the shadow witness were sent to the office of the Market Committee, Dakala, and they waited outside the office. Labh Singh, shadow witness, signalled them to reach by putting his hand on his head and they went to the office of the Market Committee, Dakala, where the Secretary, Vinod Kumar appellant present in the court, was found present in his room. DSP Jai Pal Singh disclosed his identity to him and later a glass of water was arranged by the DSP, sodium carbonate powder was poured in the glass but colour of the water remained the same. He further testified that official witness, Randhir Singh, was direced to put his fingers in the glass of water but the colour remained the same. Thereafter, Vinod Kumar appellant was directed to put his fingers in the said solution and on his doing so, the colour of the water turned pink. That water was put into a nip which was sealed with the seal of DSP, bearing impression "JPS" and seized vide memo (Ex.PL) which was attested by him, Randhir Singh, Labh Singh and Bal Kishan. Vinod Kumar appellant produced `4000/- out of which, seven currency notes were of `500/- each and five Criminal Appeal No. 2482-SB of 2004( O&M) 10 currency notes were of `100/- each. The recovered currency notes were compared with the memo already prepared and the same tallied. These notes were seized vide memo (Ex.PM) which was attested by him and the aforementioned witnesses. He also testified that further search of the appellant resulted in the recovery of `7090, a pen and a wrist watch. Out of that amount, `5000/- belonged to the office and those were returned to Nachhattar Singh Accountant against receipt and the remaining currency notes and the articles were seized vide memo (Ex.PN), which was signed by the appellant and other witnesses. He further testified that the appellant was asked to put off his trouser and another glass of water was arranged wherein, sodium carbonate was put and colour of the water did not alter. Pocket of the trouser of the appellant was put in that solution and colour of the solution turned into pink. Said solution was also stored in a nip which was later sealed and seized vide memo (Ex.PO). He further testified that Nachhattar Singh Accountant produced the record regarding contract and dispatch register and the same were seized vide memo (Ex.PG) which was attested by him and other witnesses. The nips (Ex.P1 and Ex.P2), parcel of trouser Criminal Appeal No. 2482-SB of 2004( O&M) 11 (Ex.P3), currency notes (Ex.P4 to Ex.P15) were produced during the deposition of PW7 who also testified that his statement under Section 161, Cr.P.C. was recorded.
Labh Singh while appearing as PW8 deposed that Bal Kishan came to him on 28.10.2002 at Dakala, who told him that Vinod Kumar, Secretary, had been demanding `5000/- as illegal gratification for issuance of contract of lifting the waste crop but the matter was settled at `4000/- and he advised him to visit the office of Vigilance. He further deposed that Jai Pal Singh, DSP, was present in the office and Bal Kishan produced seven currency notes of the denomination of `500/- each and five currency notes of `100/-each, DSP applied powder and handed over these currency notes to complainant vide memo (Ex.PQ) and demonstration memo (Ex.PR) was prepared and sodium carbonate was added in the water and color of the water did not change and then powder was added in that solution and colour of the solution turned pink. He further deposed that Anil Kumar and Randhir Singh were joined in the investigation by the raiding party and were introduced to them and thereafter, they went to Dakala. He further testified that he and Bal Kishan were sent to Market Criminal Appeal No. 2482-SB of 2004( O&M) 12 Committee, Dakala whereas the remaining police party waited for signal and he was told that he would make a signal by putting his hand on his head as and when the amount of illegal gratification was paid by Bal Kishan. He further testified that appellant Vinod Kumar was present in his office and Bal Kishan handed over `4000/- to the appellant on demand and he (Labh Singh) made signal and the police party entered in the office of the appellant and DSP disclosed his identity. Water was put in the glass. Sodium Carbonate was put into the water and hands of Randhir Singh were got washed in that solution but the colour, thereof, did not change. Thereafter, the appellant was asked to put his hands in that solution and on his doing so, the colour thereof altered into pink. Said solution was put into a nip and made into parcel after it was sealed by the DSP and memo (Ex.PL) to this effect was prepared. He further testified that Vinod Kumar appellant threw the tainted money and the same was recovered from under the table and number of those currency notes were got tallied from Anil Kumar and Randhir Singh, prosecution witnesses, with the memo already prepared and those currency notes were seized vide memo (Ex.PM). He further testified. Criminal Appeal No. 2482-SB of 2004( O&M) 13 that supplementary search of appellant resulted in recovery of `7090/- and a watch which were seized vide memo (Ex.PN) and the appellant was directed to put off his trouser. Water was arranged in a glass and sodium carbonate was put therein. The pocket of the trouser was got washed in the solution and colour of the same changed into pink. Said solution was made into a parcel by putting in a nip and the same was seized vide memo (Ex.PO) along with the trouser. He further testified that a register and a file were taken into possession vide memo (Ex.PG).
Bal Kishan (PW9) also testified that he was given contract of lifting residue of wheat and paddy from the grain market, Dakala, in the year 2002-03 for `8000/- and that out of that amount, he had paid `2000/- i.e. 25% of contract amount. When he had taken this contract, Jai Singh was posted as Secretary. Vinod Kumar appellant was posted as Secretary in his place and during the season of paddy, Vinod Kumar appellant approached him several times and demanded ` 5000/- as bribe; he also threatened him that in case he did not pay the same, the appellant would cancel the contract. Although he expressed his helplessness in paying the bribe money, yet agreed to pay `4000/- on Criminal Appeal No. 2482-SB of 2004( O&M) 14 26.10.2002. On 28.10.2002, he approached Labh Singh resident of Balbehra who advised him to approach the Vigilance Bureau and thereafter they both went to Jai Pal Singh, DSP, Vigilance Bureau, Patiala, where his statement was recorded and he signed the same. He handed over seven currency notes of the denomination of `500/- each and five currency notes of the denomination of `100/- each to the D.S.P. who treated them with some chemical powder and handed over the same to him with a direction that as and when Vinod Kumar Secretary would demand the bribe, he should hand over those notes to him and memo (Ex.PQ) to this effect was prepared. The DSP also demonstrated with a piece of paper by treating the same with the above said chemical and colour of the water turned into pink. Said solution was put into a nip and sealed with a seal bearing impression JPS. He further testified that two official witnesses, namely, Randhir Singh and Anil Kumar, from Public Health Department, were joined and at about 1.30 P.M. they left for Dakala. He and Labh Singh entered the Market Committee office where the appellant demanded money from him and he handed over the tainted currency notes to him and thereafter Jai Pal Singh DSP entered the Criminal Appeal No. 2482-SB of 2004( O&M) 15 office of the accused and directed the latter not to move from his chair. Thereafter, the DSP arranged a glass of water and asked the official witness to dip his hands in the water and the colour of the water remained the same and thereafter, hands of the appellant were dipped in the glass of water which turned into pink. The liquid was poured into a nip, sealed with the seal of DSP bearing impression JPS and seized vide memo (Ex.PL). He further testified that the appellant dropped the bribe money under the table after removing it from his pocket and, thereafter, he handed over the total amount of `4000/- which was taken into possession vide memo Ex.PM and numbers of these notes tallied with the numbers mentioned in the earlier prepared memo. He further testified that some documents were taken into possession by the DSP and on personal search of the appellant `7090/- in cash, one watch and goggle were recovered which were seized vide memo (Ex.PN). Thereafter, pocket of the trouser of the appellant was put into the solution of water and sodium carbonate and resultantly the colour of the pocket of the trouser turned into pink and the solution was put into a nip and was sealed with the seal bearing impression JPS and seized vide memo Criminal Appeal No. 2482-SB of 2004( O&M) 16 (Ex.PO).
Jai Pal Singh, DSP (PW10) who is investigating officer of this case testified that Bal Kishan and Labh Singh came to him on 28.10.2002 at his office at Patiala and they told that Bal Kishan had got the contract for the residue of paddy and wheat of Market Committee, Dakala for the year 2002-03 and that he had deposited `2000/- for that contract and the remaining amount was deposited in the office of the Market Committee later on. He further testified that Bal Kishan told him that Vinod Kumar appellant, Secretary, was demanding illegal gratification from him, who further threatened the complainant that in case the illegal gratification was not paid to him, the appellant would cancel the contract. Statement (Ex.PS) of Bal Kishan to that effect was recorded and he put endorsement (Ex.PS/1) thereon, and on the basis, thereof, formal FIR (Ex.PS/2) was recorded. He further deposed that Bal Kishan produced `4000/- before him which were treated with Phenolphthalein powder and were handed over to him vide memo (Ex.PQ), which was attested by him and Labh Singh and, thereafter, use of Phenolphthalein powder was demonstrated and memo to that effect (Ex.PR) was prepared which was also Criminal Appeal No. 2482-SB of 2004( O&M) 17 signed by Labh Singh and Bal Kishan. He further testified that Labh Singh was appointed as shadow witness, Randhir Singh SDO and Anil Kumar SDO, Public Health Department, were joined in the raiding party and they left for Market committee, Dakala, after briefing the witnesses and after reaching Dakala, they parked their vehicle near the office and directed Bal Kishan and Labh Singh to approach Vinod Kumar appellant present in the court and give bribe money to him on demand. After sometime Labh Singh signalled the police party by raising his hand as directed and he along with police party and official witnesses raided the office of the appellant and Vinod Kumar appellant was directed not to move from his chair whose hands were washed in the solution of water which turned pink and the same was seized vide memo (Ex.PL) and before washing the hands of the appellant in the above said solution, he had directed Randhir Singh witness to put his hands in the solution but the colour thereof did not change. He asked the appellant regarding the illegal gratification received by him, who had thrown the tainted money on the floor after removing the same from the pocket of his trouser. He handed over the same to PW Randhir Singh to compare the numbers of notes Criminal Appeal No. 2482-SB of 2004( O&M) 18 which tallied with the earlier memo. The tainted money consisting of seven currency notes of `500/- denomination and five currency notes of `.100/- each, total ` 4000/-, was seized vide memo (Ex.PM) and thereafter the right pocket of the trouser of the appellant was washed in the sodium powder solution which also turned pink and memo (Ex.PO) in that regard was prepared. Solution was put in a nip and sealed with seal bearing impression JPS. The seal after use was handed over to Randhir Singh witness. He further testified that personal search of the appellant resulted into recovery of `7090/-, one watch and one goggle, out of that amount, `5000/- were stated to be of the office which were handed over to Nachhattar Singh and personal search memo (Ex.PN) of the appellant was prepared, record was also taken into possession vide memo (Ex.PG) and site plan (Ex.PT) was also prepared. He further deposed that grounds of arrest were explained to Nachhattar Singh vide memo (Ex.PU). House of the appellant was also searched, memo to that effect (Ex.PV) was also prepared which was signed by wife of the appellant and other witnesses. After completion of the prosecution evidence, the statement of the appellant in terms of Section 313 of the Code of Criminal Appeal No. 2482-SB of 2004( O&M) 19 Criminal Procedure was recorded. He denied the prosecution version and pleaded innocence. In reply to the last question, he stated as under:-
" I am innocent. I never demanded any illegal gratification from Bal Kishan nor accepted the same. No recovery was effected from me. The complainant was inimical towards me as he was not allotted work and due to this reason, the complainant filed complaint against me to higher officers. The complaint was inquired into by the SDM, Patiala and the same was found to be false. The complainant was also inimical towards me because I have written a letter to him for depositing balance amount of auction. PW Labh Singh was also inimical towards me as I have written number of letters for registration of case against him for his irregularities/offences. Labh Singh has also filed various complaints against me to higher officers. So, Bal Kishan and Labh Singh in connivance with Vigilance Officials have got this false case registered against me."
In defence evidence, the appellant examined the Criminal Appeal No. 2482-SB of 2004( O&M) 20 following witnesses:-
DW-1 Kuldip Singh, Ahlmad with Labaour Court, Patiala. He had brought the summoned file of a case titled as "Kashmir Singh Vs. Market Committee, Dakala", bearing No. 289 of 2000. He on seeing the certified copy of claim application admitted the same to be a copy of the original and the same was exhibited as DW1/A whereas the copy of the written statement filed by Market Committee, Dakala was exhibited as DW1/B. He also admitted the copy of written statement Ex.DW1/C and the claim application Ex.DW1/D. He had also deposed that the case titled "Kashmir Singh Vs. Market Committee, Dakala" was pending before the Presiding Officer, Labour Court, Patiala.
DW2 Ravinder Pal Singh was Mandi Supervisor, Market Committee, Ghanaur. He deposed that Manjit Singh Narang, SDM, Patiala, was posted as Administrator, Market Committee, Dakala. The quotation received in response to the tender floated were used to be opened in the presence of the Administrator. On seeing the records, he deposed that the complaint presented by Bal Kishan against the Secretary, Market Committee, Dakala, was filed on 23.09.2002 by the Administrator. He proved the copy of the Criminal Appeal No. 2482-SB of 2004( O&M) 21 application (Ex.DW2/A) along with endorsement of SDM-
Administrator (Ex.DW2/B). He further deposed that Labh Singh was employed as Accountant in his department who took premature retirement on 31.03.2000. The Secretary of the Market Committee, Dakala, had written a letter to the In-charge Police Post, Dakala, for registration of a case against Labh Singh. The photo copy of the same was exhibited as DW2/C. In the statement of this witness photo copy of letter no. 233 dated 16.02.2001 (Ex. DW/D), letter from the Legal Advisor, Punjab Mandi Board, (Ex. DW2/E), letter No. 1484 dated 20.04.2001 (Ex. DW2/F), letter dated 07.06.2001 (Ex. DW2/G), noting dated 13.07.2001 (Ex.DW2/H) which were in the hand of DW2, letter dated 31.11.2001(Ex.DW2/1) written to SSP, Patiala, letter No. 353 dated 31.05.2000 (Ex.PW2/J) were also proved. The witness also identified the signatures of the Secretary, Market Committee on the copy of reference letter dated 11.05.2000 (Ex.DW2/K). This witness also proved copy of the letter dated 31.05.2000 with reference No. 352 (Ex. DW2/L), letter No. 470 (Ex. DW2/M), letter No. 479 dated 07.07.2000 (Ex. DW2/N) letter No. 633 dated 05.09.2000 (Ex.DW2/O), letter No.740 dated 16.10.2000 Criminal Appeal No. 2482-SB of 2004( O&M) 22 written by President, Market Committee, Dakala, (Ex. DW2/P), and letter reference No. 3940 dated 16.01.2001 (Ex.DW2/Q). He further deposed that quotation were opened in the presence of SDM, Patiala and his handwritten report dated 23.09.2002 was Ex.D1. He further deposed that all the correspondence were routed through his office, therefore, he was acquainted with the signatures of all the persons.
After completion of the defence evidence, the arguments were heard and the appellant was held guilty and sentenced in the manner as has been mentioned in the initial part of this judgment.
The said judgment of conviction and sentence is under challenge before this court.
Learned counsel for the appellant submitted that the evidence led by the prosecution was highly contradictory, inconsistent and contrary to its basic case as propounded during the investigation. He further submitted that demand and acceptance of the tained amount could not be substantiated by the prosecution, therefore, the whole case of the prosecution should have been rejected by the learned trial Court. He also submitted that prosecution Criminal Appeal No. 2482-SB of 2004( O&M) 23 witnesses Labh Singh and Bal Kishan were inimical towards the appellant, therefore, the learned trial court should not have returned the verdict of guilt on the basis of their deposition. He further argued that the investigation in the case in hand was not fair since all the documents were prepared while sitting in the police station. To elaborate his submissions, he had referred to the various documents which were prepared before receipt of the FIR number but the said documents were bearing the FIR number. He also argued that the appellant was not in a position to oblige the complainant since the tender was floated by his (appellant) predecessor and the part amount had already been deposited by the complainant, therefore, there was no occasion with the complainant to pay bribe to the appellant. He also argued that the material witnesses were withheld by the prosecution, therefore, the learned trial court should have drawn adverse inference against the prosecution. He also submitted that the learned trial court failed to attach due importance to the deposition of the defence witnesses which had caused serious prejudice to the appellant and as such the impugned judgement was liable to be set aside. In support of his submissions, learned counsel had placed Criminal Appeal No. 2482-SB of 2004( O&M) 24 reliance on the following authorities:-
1.Habeeb Mohammad v. State of Hyderabad, AIR 1954 Supreme Court 51;
2.Thulia Kali v. The State of T.N., AIR 1973 SC 501;
3.Smt. Meena Balwant Hemke v. State of Maharashtra, AIR 2000 Supreme Court 3377;
4.Satbir Singh v. State of Haryana, 2000 (1) R.C.R. (Criminal) 487;
5.Binay Kumar Singh v. State of Bihar, AIR 1997 Supreme Court 322;
6.Sat Paul v. Delhi Administration, AIR 1976 Supreme Court 294;
7. Darshan Lal v. Delhi Administration, AIR 1974 SC 218;
8.Kuldip Rai v. State of Punjab, 2002(2) R.C.R. (Criminal) 781;
9.Dalip Singh v. State of Punjab, 1988 (1) R.C.R. (Criminal) 123;
10.Satish S/o Laxminarayan Nayak v. State of Maharashtra, 1999 CRI.L.J. 4407;
11.Gurcharan Singh v. State of Haryana, 1994 CRI.L.J. 1710;
12.Mohd. Iqbal Ahmed v. State of A.P., AIR 1979 Supreme Court 677;
13. Prithi Pal Singh v. The State of Punjab, 1991 CRI.L.J. 2541;
14.N.P. Lotlikar v. C.B.I. and another, 1993 CRI.L.J. 2051;
15.Bhurey Singh v. State of U.P., 1993 (2) Crime 250 (All);
16.Lalji Shukla v. State, 2000(1) R.C.R. (Criminal) 305;Criminal Appeal No. 2482-SB of 2004( O&M) 25
17.Kailash alias Kuddu v. State of Delhi, 2000 (3) R.C.R. (Criminal) 330;
18. Ajay Malik v. State of U.T., Chandigarh, 2009(3) R.C.R. (Criminal) 649; and
19.G.V.Nanjundiah v. State (Delhi Administration), 1987 (Supp) Supreme Court Cases 266.
On the other hand, learned counsel for the State had vehemently opposed the submissions made by learned counsel for the appellant and submitted that after scanning the material available on record, the learned trial court had correctly returned the verdict of guilt of the appellant, therefore, there was no scope for interference with the impugned judgement.
I have heard learned counsel for the parties and meticulously examined the record with their active assistance.
A perusal of the statements of the prosecution witnesses transpires that there are serious contradictions, omissions, additions and confabulations in their depositions. While dealing with this argument, this court is conscious of the fact that minor contradictions, additions and omissions are bound to occur in the statements of the prosecution witnesses if they step into the witness box after a long lapse of time. Such minor contradictions etc. in fact prove that Criminal Appeal No. 2482-SB of 2004( O&M) 26 the witnesses were not tutored before they appeared for making deposition. However, if such contradictions, additions, omissions and confabulations are going to the root of the case and creating suspicion with regard to the substratum of the prosecution version, in that situation, the balance of convenience would lie in favour of the appallent- accused. Such contradictions etc. assume much importance if it emerges on record that the important prosecution witnesses had motive to falsely implicate the appellant- accused on account of previous enmity.
Keeping in view the above settled norms, if the statement of PW7 Anil Kumar Bansal (the witness of recovery of the tainted amount), PW8 Labh Singh (a shadow witness), PW9 Bal Kishan (complainant) and PW10 Deputy Superintendent of Police, Jaipal Singh (Investigating Officer) are appraised then it is very much clear that most of the prosecution witnesses are contradicting each other on material particulars. Anil Kumar Bansal (PW7) deposed that Vinod Kumar (appellant) produced the currency notes of `4000/- (bribe amount). He also deposed that office of the appellant-accused was not visible from the place where they were standing. He further deposed that the gypsy was Criminal Appeal No. 2482-SB of 2004( O&M) 27 parked at a distance of 300 yards from the office of Market Committee. He also deposed that no money was demanded or accepted in his presence. He was not in a position to narrate the colour of the pants worn by the appellant at the time of raid. Labh Singh PW8 stated that first demand of tained amount by the appllant was not made in his presence. He further stated that he was sitting outside the office when the hand and pocket of the appellant-accused were washed. He further deposed that the tainted currency notes were lifted from beneath the table but he did not remember who lifted the same. He further deposed that gypsy was parked at a distance of 100/150 meters from the office of Market Committee, Dakala. He also deposed that when the Deputy Superintendent of Police was conducting the proceedings inside the office of Secretary, at that time they (Bal Kishan and Labh Singh) were sitting outside and he could not give the details of the said proceedings. During his further cross-examination, Labh Singh (PW8) admitted that litigation was pending against him at the behest of the Market Committee, Dakala. He further admitted that FIR No.400, dated 17.7.2002, under Sections 406 and 420, IPC was registered against him at Police Criminal Appeal No. 2482-SB of 2004( O&M) 28 Station, Sadar, Patiala.
PW9 Bal Kishan (complainant) deposed that the appellant-accused dropped the bribe money under the table after removing the same from his pocket and thereafter, he handed over the amount of `4000/-, which was taken into possession by the Deputy Superintendent of Police. He further deposed that he could not say orally as to whether the contract was given to him or he had given the bid for the contract. He also admitted during cross-examination that he had filed complaints against the working of the Market Committee, Dakala and its Secretary and other officials with the Chief Minister of Punjab, Agriculture Minister, Punjab and other officials. He further admitted that he was not allotted the work, so he filed the complaint. He admitted that Sub Divisional Magistrate-cum- Administrator inquired into the matter and came to the conclusion that no action was required and his complaint was filed being frivolous. He also admitted that the contract for lifting paddy was given to him in April, 2002 by the predecessor of the appellant, for a sum of `8000/- and that he deposited `2000/- on the spot and the balance amount of `6000/- was to be deposited by him later on. He further Criminal Appeal No. 2482-SB of 2004( O&M) 29 admitted that the appellant wrote a letter to him on 4.10.2002 to deposit a sum of `6000/- due towards him for the contract. He admitted that Labh Singh (PW8) was his friend. He further admitted in his cross-examination that gypsy was stopped at a distance of 1500-2000 yards from the office of the appellant. He further admitted that the tainted currency notes were lying beneath the table when the Deputy Superintendent of Police alongwith the raiding party reached the office of the appellant-accused.
He further deposted that the appellant had thrown the amount of illegal gratification on the floor after removing the same from the pocket of his pants. He handed over the same to Randir Singh who compared the number of notes. He further deposed that the gypsy was stopped at a distance of 150 meters from the office of the appellant-accused. He further admitted that the contract could be awarded or cancelled by the Administrator.
Having minutely gone through the statements suffered by the four material witnesses, it is very much clear that all of them are contradicting each other with regard to the recovery of the tainted amount of `4000/- from the appellant or from beneath the table of the appellant. This Criminal Appeal No. 2482-SB of 2004( O&M) 30 material contradiction creates serious doubt in the mind of this court as to whether the tainted amount was accepted by the appellant-accused and he threw the same on the ground or that the complainant himself threw the amount or kept it beneath the table to implicate the appellant in this case. PW7 and PW10, i.e. the Sub Divisional Officer and the investigating officer, had not seen the appellant accepting the tainted amount. Labh Singh and Bal Kishan were having animus against the appellant which is apparent from the material available on record. Their deposition by itself could not be sufficient to raise a presumption that the appellant accepted the alleged bribe. The witnesses were also contradicting each other with regard to the parking of the gypsy. The variation with regard to it may be 10, 20 or 50 yards but in the case in hand the distance had been given by the witnesses as 150, 300 and 1500 meters. One of the above witnesses admitted that the place of parking of the gypsy was not visible from the office of the Market Committee. In that eventuality how the signal allegedly passed on by Labh Singh (PW8) was visualized by the raiding party. All these contradictions are creating suspicion in the mind of the court and the benefit of the same has to Criminal Appeal No. 2482-SB of 2004( O&M) 31 be extended to the appellant.
The argument raised by the learned cousel for the appellant that the documents prepared by the investigating agency prior to the registration of the case were bearing the FIR number of the case in hand, therefore, the said documents were prepared while sitting in the Police Station does not find favour with this court. Perusal of the documents referred to by the learned counsel for the appellant reveals that the space was kept blank on every such document for mentioning the FIR number and later on, the FIR number was inserted, therefore, on this account the appellant is not entitled to get any benefit.
Though, the learned counsel for the appallant had also raised an argument with regard to the non-examination of the material witnesses, but he had failed to substantiate his submissions in that regard.
There is a substance in the argument of the learned counsel for the appellant that the appellant was not in a position to oblige the complainant, therefore there was no occasion for the latter to pay the bribe money to him (appellant). It has specifically been admitted by the witnesses that the contract given to the complainant could Criminal Appeal No. 2482-SB of 2004( O&M) 32 be cancelled by the Administrator, i.e. the Sub Divisional Magistrate, only. It has also come on record that the bid amount of the contract was `8000/- and only `2000/- were deposited by the complainant. It has also come on record that the appellant issued a notice to the complainant to deposit the due amount, therefore, there is probability that the complainant felt ill of it and in connivance with his friend Labh Singh (PW8) had concocted the present story.
The authorities cited by the learned counsel for the appellant are of course a guiding factor for this court while deciding the case in hand but are not applicable to the facts and circumstances of the case. Every criminal case has its own facts and the authorities have to be applied if the facts and the circumstances involved are similar.
It is also settled that there is a long distance between 'may be true' and 'must be true' and this gap could not be met by the proscution.
Therefore, keeping in view the totality of the circumstances of the case and the nature of the evidence led by the prosecution, it cannot be concluded that the allegations levelled by the prosecution are wholly true and as such while extending the benefit of doubt to the Criminal Appeal No. 2482-SB of 2004( O&M) 33 appellant, the present appeal is accepted and the appellant is acquitted of the charge levelled against him.
(NARESH KUMAR SANGHI) JUDGE December 21,2012.
Anoop