Chanan Ram vs The State of Punjab

S.S. Dewan, J.—This is an appeal filed by Chanan Ram It is directed against the Judgment of Shri A.L. Bahri, Special Judge (Addl. Session Judge) Patiala, dated 30th January, 1974, by which the appellant has been convicted u/s 161 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay Rs. 1000/- as fine and in default of payment of fine to further undergo rigorous imprisonment for 3 months.

Briefly stated the facts of the present case are as under:--

Balbir Singh had applied for copies of mutations in the Copying Agency of the Deputy Commissioner''s office Patiala, through Shri Krishan Behari Lal, Advocate. He was given several dates by the office but the copies were not delivered. Exhibit P.C. is the chit issued by the office indicating dates. On 1st October 1971, Balbir Singh approached the appellant at about 1.00 P.M. and asked for the copies. He told Balbir Singh that only two copies were ready but he could not supply the same unless he gave him Rs. 10/- as bribe As Balbir Singh did not want to pay him the bribe he went to the office of the Inspector Vigilance. Shamsher Singh had made statement (Exhibit P.D.) before him. He offered a currency note of Rs. 10/- to the Inspector who applied phenolphthalein powder to that currency note and returned the same to Balbir Singh. The Inspector gave demonstration by applying the same powder to a piece of paper and dipping it in a glass of water. The colour of water turned pink. Memos (Exhibit P E and P F) in that respect were prepared. The details of the trap to be laid were chalked out. It was settled that Balbir Singh would hand over the currency note to the appellant in his office and Surinderjit Singh would be there as a shadow witness. In the execution of the plan for entraping the appellant as devised above. Balbir Singh is said to have given the currency note of Rs. 10/- (Exhibit P. 1) to the appellant. On receipt of the signal by Surinderjit Singh by placing his hand at the back of his head, the Vigilance Inspector Shamsher Singh apprehended the appellant. He disclosed his identity to him and offerred his search to Surinderjit Singh and Sardara Singh, P.Ws. The Inspector then searched the person of appellant and recovered a sum of Rs. 73/-, including the currency note of Rs. 10/- (Exhibit P. 1) from the pocket of his shirt. The tainted money and the shirt worn by the appellant were taken into possession. His hands were washed in a glass of water and its colour turned pink. Memo (Exhibit P.H.) was prepared in that respect. The Inspector took into possession copies of the mutations, Exhibits P.H. and P.K. The sanction, (Exhibit P.A.) to prosecute the appellant was obtained from the Financial Commissioner. After the completion of the Investigation, the appellant was challenged.

In his statement u/s 342, Criminal Procedure Code, the appellant admitted having worked as a Record Clerk in the Record Room of the Deputy Commissioner''s Office, Patiala, on 1st August. 1971, but he gave his own version as under:--

I have been falsely implicated in the case. Balbir Singh came to me after 2. P.M. upto lunch time Darshan Singh was working as Record Keeper. Balbir Singh showed me the chit that he wanted the copies for which he had earlier applied. I inspected the register and informed him that two copies were ready but I could not deliver the copies since Darshan Singh had gone away. There upon Balbir Singh felt annoyed and said that he had been harassed. He had visited the office thrice earlier. I asked him that Darshan Singh will deliver the copies to him or he should approach the Incharge. Therefore Balbir Singh came after about 45 minutes and demanded the copies from me. I asked him that he had just quarreled with me and he had again come. He threw the currency not of Rs. 10/- or my table which 1 picked up and threw it on his face. After some lime the police came and I was taken to the office of Inspector Vigilance and involved in the present case falsely.

In defence, the appellant examined Gurbachan Singh (D.W.1), Omparkash (D.W.2) and Baljinder Singh (D.W.3) and produced documents, Exhibits D. 1 to D. 8.

The aforesaid prosecution story was narrated on oath by Balbir Singh, complainant (P.W.4). Similar was his statement, (Exhibit P.D.) made to the police, on the basis of which this case was registered and the trap was lad.

In order to prove its case, the prosecution examined Joginder Singh (P.W. 1), who proved sanction Exhibit P.A. for the prosecution of the Appellant, Constable Amar Singh and A.S.I. Dalip Singh, being the formal witnesses, filed affidavits Exhibits P.W.2 and P.W.3, Balbir Singh, (P.W.4) complainant and Surinderjit Singh (PW 5) the shadow witness. Sardara Singh and Inspector Vigilance Shamsher were not examined by the prosecution,

After considering the evidence of the parties, the learned Special Judge, Patiala, acquitted the appellant of the offence u/s 5(2) of the Prevention of Corruption Act, but convicted and sentenced him u/s 161, Criminal Procedure Code, as stated above. Feeling dissatisfied, Chanan Ram has filed their appeal.

Shri D.D. Jain, learned counsel appearing on behalf of the appellant, has contended that the prosecution witnesses produced to prove the recovery of bribe given to the appellant, are partisan and unreliable witnesses; that the test of application of phenolphthalein by the police is of a highly doubtful character because no expert evidence or book of science regarding this test was produced and that the prosecution story was improbable.

There is no other evidence on the file except the statement of Balbir Singh that the appellant met the complainant on 1st October, 1971 and what talk took place between them. Regarding the payment of the amount by Balbir Singh to the appellant and the recovery of the money from the latter, we have got the Statements of Balbir Singh (P.W. 4) and Surinderjit Singh (P.W. 5). They unanimously deposed that Balbir Sinhg complainant, had asked him to supply the copies of mutations but the appellant demanded bribe of Rs. 10/-. He handed over the Currency note (Exhibit P. 1) to him and he pocketed it in his Shrt. Surinderjit Singh gave signal and the Inspector Shamsher Singh, came there and disclosed his identity to the appellant. The appellant was asked to stand for his search. The currency notes of Rs. 73/- including the processed currency note, (Exhibit P. 1) were recovered from the pocket of the shirt worn by the appellant. Currency notes, (Exhibit P. 1) and shirt (Exhibit P. 2) were taken into possession by the Inspector. It is partinent to note here that the offices of the Deputy Commissioner and the Inspector Vigilance are situated in the premises of the District Courts at Patitala. Surinderjit Singh has stated during his cross examination that while he was standing in the court premises, he was called through a constable to the office of the Inspector Vigilance to join the raiding party. He claimed to be present in the Court premises in connection with his evidence to be recorded in the court of Sub-Judge in case--''Surinderjit Singh v. Davinder Singh''. But he has been belied by Om Parkash (DW 2), clerk to Shri K.B. Lal Mathur Advocate. He has deposed that no such case was fixed in any Court on 1st October, 1971. Baljinder Singh (DW 3) Reader to Sub-Judge I Class "A" Patiala, brought his Peshi Registrar of 1st October, 1971 and Sated that there was no case ''Surinderjit Singh v. Davinder Singh'' fixed on that date Surinderjit Singh has denied to have known Balbir Singh earlier to this incident, but the latter stated that he knew him for the last about 4 or 5 months. It is thus manifest that Surinderjit Singh is an interested witness, and, therefore by no stretch of imagination he can be said to be an independent and reliable witness. Surinderjit Singh stated that there were several persons present in the Court premises when he was called to the office of the Inspector. He has admitted having appeared in one or two cases for the police earlier. The inspector could have very well joined some independent witness from the persons present in the Court premises but he joined Surinderjit Singh being a convenient witness. It is in the background of unreliability of this witness and the false facts deposed to by him that the value of his evidence regarding the delivery of currency note has to be judged. Surinderjit Singh was asked to accompany Balbir Singh to hear the talk between him and the appellant and to see the passing of the money. He says that he saw Balbir Singh passing over the currency note to the Appellant but he did not hear their talk. Balbir Singh has admitted that Surinderjit Singh was standing at a distance of 10/15 feet and he was visible to the appellant. In such a situation it is difficult to hold that appellant would demand money from Balbir Singh in the presence of Surinderjit Singh and would receive money within his sight.

10 In Ram Parkash v. The State of Haryana 1969 U.J. (S.C.)561, the facts were that one Hari Singh made a report to the police that the accused Ram Parkash of that case had demanded Rs. 80/- from him as bribe. He made a report to the police against the accused and a trap was laid, which was Successful. Fateh Singh P.W. accompanied Hari Singh and he saw the giving of Rs. 80/- by the complainant Hari Singh to the accused and he gave a pre-arranged signal to the police party, who effected the recovery of the bribe money from the accused. On the facts it was observed by the Supreme Court:--

To include Fateh Singh in the raiding party and make him a shadow witness was, to say the least unsatisfactory. It must have been known to the police officers concerned with the raid that Fateh Singh was a friend of Hari Singh and had stood surety for him in various cases. It is quite clear that nobody saw the act of passing money as bribe except Fateh Singh and we find it impossible to place any reliance on his evidence.

This fact was held by the Supreme Court to be a suspicious circumstance.

The statements of Balbir Singh and Surinderjit Singh regarding the alleged recovery of currency note (Exhibit P. 1) from the appellant, are highly discrepant. In the instant case there is no evidence on the file to corroborate the statement of Balbir Singh, complainant, who is a highly interested witness. After the'' recovery of currency note, the Inspector Vigilance prepared solution of water and washed the hands of the appellant and its colour turned pink. This solution which turned pink has not been produced in the Court for the reasons best known to the prosecution. It is in the evidence of Balbir Singh and Surinderjit Singh, PWs., that when Balbir Singh gave the currency note to the appellant, he put the same in the pocket of his shirt. The processed note along with the other notes worth Rs. 63/- were recovered from the pocket of the shirt of the appellant. Therefore, phenolphthalein powder must have touched the currency notes and the inner side of his pocket and it was incumbent upon the Inspector to have dipped that part of the shirt and also the currency notes in a separate solution of water to see whether the solution turned pink or not; but this was not done for the reasons best known to the Inspector. If he had followed this procedure then it would have connected the appellant with the commission of the crime beyond any reasonable doubt. Consequently, the statements of the two witnesses that the appellant took the currency note in his hand and put the same in the pocket of his shirt and the recovery thereof cannot be accepted to be correct. In Ramsing Badharsing Vs. State, St was held as under:--

Where in a case of bribery, the police resort to the technique of anthrecene powder and ultra violet rays for proving that the accused had received the currency notes to which the powder had been applied by the presence of the powder on the hands or shirt of the accused, the prosecution must lead positive evidence by way of expert evidence or books of science to prove the sure method of detection of anthrecene powder, the nature of the test to be applied, the nature of the result to be expected and whether a layman can direct anthrecene powder when such a test is applied. The prosecution must also prove that if the test leads to a positive result, it conclusively proves the presence of anthrecene powder and nothing else.

These observations are fully applicable in this case. I am in respectful agreement with the observations made in this Division Bench authority of Gujarat High Court. This ruling was followed in Kapur Singh v. State of Punjab Cr. A No. 229 of 1972 Criminal Appeal No. 229 of 1972, decided by S.C. Mittal, J., on May, 26, 1972. In the instant case, no evidence has been produced by the prosecution that if the phenolphthalein powder is applied to the currency notes then some powder will stick to the currency notes and the inner side of the pocket wherein the same were put and if this part of the shirt is dipped in the water, and the same would turned pink and consequently it will connect the accused with the commission of the crime. Further, no expert opinion or book of science regarding the mode of detection etc, of phenolphthalein powder was examined. Therefore, the testimony of the prosecution witnesses regarding the use of phenolphthalein powder in the alleged recovery of the currency note from the person of the appellant cannot be accepted to be correct In this case, the Inspector Vigilance was not examined at all and such an omission is serious. The explanation given by the appellant that Balbir Singh had kept a currency note of Rs. 10/- on his table to bribe him, but he picked it up and threw it on his face, appears to be plausible. The onus lay heavily on the prosecution to prove by positive and cogent evidence, out it had failed to prove it. Therefore, the conviction and sentence of the appellant cannot be sustained.

As a result, the appeal is accepted, the conviction and sentence of the appellant are set aside and he is acquitted. Fine, if paid, will be refunded to him. The appellant is on bail and he is discharged of his bail bonds.