Darshan Singh vs The State of Punjab

A.L. Bahri, J.—Darshan Singh, a Revenue Patwari of Halqa Matoi, district Sangrur, was convicted by Special Judge, Sangrur on August 30, 1985 u/s 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 of the Indian Penal Code. He was sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months under the provisions of the Prevention of Corruption Act and to undergo rigorous imprisonment for one year u/s 161 of the Indian Penal Code. Both the sentences were ordered to run concurrently.

The prosecution story, as divulged by Hari Singh complainant who appeared as P W. 3 is briefly as under:

Hari Singh owns 18/19 Bighas of land for which he wanted to purchase a tractor. He approached a bank at Malerkotla for taking loan. He also deposited a sum of Rs 200/- with one tractor agency. He was asked by the bank officials to bring a copy of the Jamabandi of his land. He approached the Appellant who was Patwari of the Circle on May 19. 1983 for getting copy of the Jamabandi. The Appellant demanded a sum of Rs. 100/- as illegal gratification However, Hari Singh agreed to pay Rs. 50/-. The copy was agreed to be supplied on the following day either in the Court Complex or in the office of the Kanungo, Malerkotla On reaching the village, Hari Singh contacted Refiq Mohammad and disclosed him about the talk he had with the Patwari. On the following day, both of them visited office of the Vigilance Inspector and contacted Inspector Karam Singh. The statement of Hari Singh was recorded which was sent to the Police Station for registration of the case. A plan was prepared to trap the Appellant. This was usual plan i. e. a sum of Rs 50/- (five currency notes of Rs. 10/-) were handed over to the Inspector on which he applied pebnol-phthalgin powder. The numbers of the currency notes were noted down. Memo was prepared. A demonstration was also given that with the said powder, the colour of the solution of sodium carbonate gets pink The solution was also taken into possession. Necessary documents were prepared. According to the plan, Hari Singh and Rafiq Mohammad were to approach the Appellant whereas the other members of the police party were to follow on signal being given by Rafiq Mohammad. The police party was to apprehend the Appellant after passing of the money Likewise, the police party accompanied by Hari Singh and Rafiq Mahammad went to the Court premises by jeep which was parked outside. Both of them met the Appellant in the Court Complex However, the Appellant took them to the office of the Kanungo where copy was to he supplied. They went there followed by the police party. In the office of the Kanungo, copy of the Jamabandi was delivered to Hari Singh who in turn ga e the tainted currency notes to the Appellant The police party on signal being given appeared on the scene. Currency notes were thrown by the Appellant on the ground. He was apprehended. His hands were washed in the solution of sodium carbonate. The colour changed into pink The solution was taken into possession. The currency notes were picked up and the numbers tallied with the memo where upon fresh recovery memo was prepared. The Appellant was arrested and subsequently put up for trial.

P.W. 3 Hari Singh and P. W. 6 Rafiq Mohammad disclosed about the prosecution case as briefly narrated above. S. I. Bhagirath Singh P. W. 8 and Inspector Karara Singh P. W 9 also lent corroboration to the prosecution case. Other formal witnesses were also produced. Sanction obtained from the District Magistrate to prosecute the Appellant was produced. Report of the Chemical Examiner was also produced regarding the solution of washing of hands of the accused. Statement of the accused u/s 313, Criminal Procedure Code, was recorded who denied the allegations and pleaded false implication. According to him, Gurmit Singh son of Han Singh used to cultivate the panchayat land. Subsequently the panchayat gave the land to Bhajan Singh son of Dalip Singh He recorded Khasra Girdawari in the name of Bhajan Singh. Hari Singh wanted the Khasra Girdawari to be recorded in the name of his son Gurmit Singh and was thus annoyed. Hari Singh also gave an application for correction of Khasra Girdawari to the Assistant Collector.I Ind Grade Malerkotla who held that the Girdawari was correctly recorded. In defence, three witnesses were produced Surjit Singh D. W 1, Amar Singh D. W. 2 and Amrit Lal Verma D. W. 3. According to Surjit Singh D W. 1. copy of the revenue record was given by the Appellant to Hari Singh and Rafiq Mohammad who were trying to hand over money to the accused but the accused was preventing them with his hands. The money fell on the ground. Amar Singh D. W 2 stated that the accused was never arrested from the office of the Kanungo. Amrit Lal Verma D. W. 3 produced a site plan. Exhibit D. W. 3/A. On the evidence aforesaid, the order of conviction and sentence was passed.

The approach of the Special Judge that demand of illegal gratification is not an essentia] ingredient of an offence u/s 5(1) (d) of the Prevention of Corruption Act and Section 161 of the Indian Penal Code and that mere acceptance of illegal gratification is sufficient to constitute offence under these sections is not correct in the facts and circumstances of the present case. Section 5(1) (d) of the Prevention of Corruption reads as under:

S 5 Criminal misconduct. (1) A public servant is said to commit the offence of criminal misconduct-

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(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.

The aforesaid provision reveals that when a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage, he will be cammitting a criminal misconduct which is made an offence u/s 5(2) of the Act. The word ''obtains'' contemplates demand and acceptance whereas in other clauses of Sub-section (1) of Section 5 of the said Act, such a criminal misconduct is committed if a public servant accepts or obtains illegal gratification. It is significant that word ''accepts'' is conspicuously absent in Clause (d) of Sub-section (1) of Section 5 of the Act. The prosecution case is that the Appellant demanded illegal gratification which was subsequently offered and paid. In order to find out as to whether the Appellant has committed criminal mis conduct as defined under Clause (d) of Sub-section (1) of Section 5 of the Act, it is required of the prosection to prove that the accused demanded illegal gratification and thereafter accepted the same. Of course in Section 161 of the Indian Penal Code, both the words have been used i. e.''accepts'' or ''obtains. (The Appellant has also been charged u/s 161 of the Indian Penal Code.)

The Supreme Court in Bhanuprasad Hariparasad Dave and Anr. v. The State of Gujrat A. I. R. 1968 S. C. 1323 observed with regard to appreciation of evidence of interested witnesses in trap cases. In para 7 of the judgment, a clear distinction was brought out with respect to the evidence of an accomplice and the evidence of a partisan witness and it was observed as under:

It is now well settled by a series of decisions of this Court that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is corroborated in material particulars but as regards the evidence of a partisan witness it is open to a Court to convict an accused person solely on the basis of that evidence, if it is satisfied that that evidence is reliable. But it may in appropriate case look for corroboration." It is a matter of prudence that in appreciating the evidence of a partisan witness, one always looks for corroboration from independent source. This view has been expressed in several decisions of this Court. Bam Parkash v. The State of Punjab 1981 Ch. L R. 159, was a case where no corroboration to the statement of the complainant with regard to earlier incident of demand of bribe was forthcoming and the evidence of the witnesses to the raid was considered doubtful and the accused was given benefit of doubt in the corruption case. The following observations of the Supreme Court in Raghbir Singh Vs. State of Punjab, were referred to:

The officers functioning in the anti-corruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid.

In Surjit Singh v. State of Punjab 1987 (2) Cri. L. R. 59, it was held that it was necessary to establish the demand by the accused and acceptance in pursuance of demand to establish the offence u/s 161 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act. The Supreme Court decision in Darshan Lal v. Delhi Administration 1974 (2) Ch. L. R. 611, was also relied upon on the proposition that the trap witnesses in a case under the Prevention of Corruption Act being concerned in success of the trap, the Court should require independent corroboration of their statements before convicting the accused. Keeping in view the ratio of the decisions on the subject, the evidence produced in the present case is being considered. P. W. 3 is Hari Singh, who is the star witness of the case. As deposed by him, when he approached the Appellant for obtaining copy of the Jamabandi, the Appellant demanded a sum of Rs. 100/- as illegal gratification. However, he agreed to pay Rs. 50/-. Rafiq Mohammad P. W. 6 was produced to corroborate Hari Singh P. W. but in this respect he did not state anything that Hari Singh in formed him that the Appellant demanded a sum of Rs. 100/-. Rafiq Mohammad''s evidence is only to the effect that Rs. 50/- was demanded by the Appellant as stated to him by Hari Singh. Likewise in the statement of Hari Singh reported by the police, Exhibit PA, he did not mention that the accused had demanded a sum of Rs. 100/-. Thus, the evidence produced with respect to the demand of Rs. 100/- by the accused from Hari Singh being contradictory is not considered reliable.

The next question for consideration is as to when the raid was conducted, was any demand made by the Appellant either before delivering copy of Jamabandi or immediately thereafter. In this respect, the evidence of P. W. 3 Hari Singh and P. W. 6 Rafiq Mohammad is consistent that no demand was made by the Appellant. It may be that before the police similar statements may have been made but in Court their evidence is silent in this respect. The other members of the raiding party were far away from the place and they were not expected to state anything regarding the conversation which took place between the Appellant and Hari Singh P. W. With respect to the conversation, the evidence of Hari Singh and Rafiq Mohammad is only to the effect that when the Appellant delivered the copy of the Jamabandi, Hari Singh passed over currency notes to the Appellant and he was counting the money when the raiding party appeared there and the money was thrown on the ground. There is no evidence produced by the prosecution that any charges for supplying copy of the Jamabandi were either paid in advance or were agreed to be paid at the time of delivery of the copy If some charges were to be paid at the time of the delivery of the copy and Hari Singh passed over some currency notes without any demand from the Appellant, it cannot be said that the Appellant accepted illegal gratification Mere passing of more money than was due cannot be considered as acceptance of illegal gratification; more so when immediately finding the money to be more, the currency notes were thrown, may be on seeing the raiding party.

The object for which copy of the Jamabandi was required has not been satisfactoily established by the prosecution. A very confusing and contradictory statement has been made by Hari Singh P. W. 3 on the subject. In the statement before the police, his stand had been that for raising loan from the bank, the officials of the bank had asked him to produce copy of the Jamabandi When appearing in Court. Hari Singh P W.3 stated at one stage that he did not know the bank officials and rather did not visit the bank He merely contacted the tractor agency and paid a sum of Rs. 200/- and those persons asked him to produce copy of the Jamabandi. At another stage, he staged that bank officials had asked for the copy of the Jamabandi. He tried to clarify that it was Patiala Bank official who had asked him to produce copy of the Jamabandi. He was duly confronted with his statement recorded by the police, Exhibit P. B , in this respect wherein his stand had been that he had approached Land Mortgage Bank for getting loan for the purchase of the tractor and officials of the said bank had asked him to produce copy of the Jamabandi. Apart from this contradictory evidence which cannot be relied upon, at one stage Hari Singh P. W. 3 during cross examination admitted that when he paid Rs 200/-, he drove the tractor and went out meaning thereby that the tractor was supplied to him much before the present occurrence, This would show that in fact there was no necessity for Hari Singh P W. 3 to procure copy of Jamabandi from the Appellant at the relevant time.

The Appellant has put forward a reasonable ground as to why he was falsely involved in the case. This plea was also put to Hari Singh P. W. 3 when he entered the witness-box. Part of the plea was accepted by Hari Singh. Gurmit Singh son of Hari Singh had been cultivating land of the panchayat for the last about ten years. Earlier he was cultivating about 14 Bighas of land and subsequently 10 Bighas of land Gurmit Singh used to pay theka to the panchayat. Upto this Hari Singh admitted the aforesaid facts He showed ignorance that in 1982-83 the land was given to Bhajan Singh son of Dalip Singh in an auction and the Appellant recorded Khasra Girdawari in the name of Bhajan Singh whereas Hari Singh P.W requested the Appellant and wanted Khasra Girdawari to be in the name of his son Gurmit Singh. If the accused has put forth an explanation which is reasonable and plausible, the same can be accepted even without evidence. However, in the present case, Hari Singh P. W. 3 has admitted part of this defence plea which otherwise appears to be plausible and reasonable. Hari Singh obviously would be offended against the Appellant on account of change of Khasra Girdawari which in fact, according to him was incorrect that Bhajan Singh had not cultivated the land. It is no that account that Hari Singh P. W. showed his ignorance as to whether Bhajan Singh had cultivated the land or not. Looking from another angle, the same conclusion would be available if Bhajan Singh had in fact cultivated the land after taking it from the open auction of the panchayat, Gurmit Singh son of Hari Singh would feel offended for being relieved of the Panchayat land. It appears that on that ground attempt was made by Hari Singh to implicate the Appellant in this case.

Rafiq Mohammad P. W. 6 cannot be treated as an independent witness. As admitted by him as well as by Hari Singh P. W., Natha Singh, brother of Hari Singh, suffered injuries in an occurrence and Rafiq Mohammad was alleged to be an eye-witness of this occurrence. The said occurrence had taken place 2/3 days prior to the present occurrence. This would show that Rafiq Mohammad is a close associate of Hari Singh who would be willing to support him at any cost. Implicit reliance cannot be placed on his statement.

Thus, it is found that the story of initial demand of Rs 100/-by the Appellant from Hari Singh P. W. is not established and further more at the time of delivery of copy of the Jamabandi when raid was conducted, there was no demand of illegal gratification by the Appellant from Hari Singh as there is no evidence. In fact, Hari Singh never required copy of the Jamabandi for taking any loan from the Bank. The prosecution has thus failed to establish beyond reasonable doubt the offences with which the Appellant was charged. On similar grounds i. e. on failure of the prosecution to establish by cogent evidence that at any time there was demand of illegal gratification and that the evidence of acceptance of illegal gratification being unreliable and object which was to be achieved was not established, the conviction of the accused could not be maintained reference may be made to the decision of the Supreme Court. in G. V. Nanjundiah v. State (Delhi Administration) 1988 (1) Ch. L R. 595. In para 26 of the judgment, it was observed as under:

The question as to the handing-over of any bribe and recovery of the same from the accused should be considered along with other material circumstances one of which is the question Whether any demand was at all made by the Appellant for the bribe. When it is found that no such demand was made by the accused and the prosecution has given a false story in that regard, the Court will view the allegation of payment of the bribes to and recovery of the same from the accused with suspicion.

For the reasons recorded above, this appeal is accepted. The conviction and sentence passed on the Appellant are set aside. The Appellant is on bail. He is discharged from the bail bonds. The amount of fine, if paid, is ordered to be refunded.