Gurmukh Singh vs State of Punjab

Harbans Lal, J.—This appeal is directed against the judgment/order of sentence dated 11.9.2007 passed by the court of learned Special Judge, Rupnagar whereby he convicted and sentenced the accused Gurmukh Singh to undergo rigorous imprisonment for a period of 1� years and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for one month on two counts i.e u/s 7 read with Section 13(2) of the Prevention of Corruption Act, 1988 (for brevity, the Act) and Section 120B of IPC each.

Succinctly put the facts of the prosecution case are that at the instance of Deputy Commissioner of Ropar, an inquiry was being conducted by Amarjit Singh Dhindsa, Sub Divisional Magistrate, Kharar. Therein statements of Sahib Singh complainant and Kesar Singh were recorded. The enquiry file was in possession of Gurmukh Singh accused being steno to Sub Divisional Magistrate, Kharar. Sahib Singh approached Gurmukh Singh to supply copies of their statements recorded in the enquiry proceedings, but he went on putting off on one pretext or the other. On 27.3.2001, he again asked for supply of such copies, but Gurmukh Singh stated that the same will be given on payment of Rs. 1000/- as illegal gratification. Sahib Singh agreed to pay Rs. 500/- on the next day. Instead of going to the office of the accused he went to Vigilance Bureau, where he narrated the above mentioned facts. The raiding party including Harinder Singh shadow witness, Sukhwinder Singh SDO and Rajinder Kumar Senior Assistant was constituted. Sahib Singh accompanied by Harinder Singh went to the room of the accused, who demanded Rs. 1000/- from Sahib Singh who paid Rs. 500/- to him. The accused Gurmukh Singh handed over these currency notes to one Shamsher Singh who was present there. On receipt of appointed signal, DSP Harjap Singh alongwith other members of the raiding party entered the room of the accused. The usual formalities were observed. Shamsher Singh took out the tainted currency notes from the pocket of his shirt and handed over the same to afore said DSP. The accused Gurmukh Singh as well as Shamsher Singh(since deceased) were arrested. After completion of investigation, the charge-sheet was laid in the court for trial of the accused.

The accused Gurmukh Singh as well as Shamesher Singh were charged u/s 120B of IPC and Section 7 read with Section 13(2) of the Act to which they did not plead guilty and claimed trial. During the pendency of the trial, the accused Shamsher Singh breathed his last on 7.10.2004 and as its consequence, the proceedings abated qua him.

To bring home guilt against the accused Gurmukh Singh, the prosecution examined PW-1 Constable Avtar Singh, PW-2 Sukhinder Singh SDO, PW-3 Sahib Singh complainant, PW-4 Constable Tejwant Singh, PW-5 HC Sukhdev Singh, PW-6 DSP Des Raj, PW-7 Harinder Singh shadow witness, PW-8 Aman Kumar Senior Assistant, PW-9 Harcharan Kaur, PW-10 Harjap Singh Investigator, PW-11 Devinder Singh Sub Divisional Magistrate, Kharar and closed its evidence.

When examined u/s 313 Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. In his defence, he examined DW-1 Rajinder Kumar and DW-2 Ravinder Singh.

After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal.

I have heard the learned Counsel for the parties, besides perusing the record with due care and circumspection.

Mr. P.S. Hundal, Senior Advocate on behalf of the appellant stressing his nerves maintained that the demand of bribe and recovery of tainted money were required to be proved by the prosecution as per the settled law, but to the utter dismay of the prosecution, both these ingredients have not been established. The evidence of Sahib Singh PW-3 to the effect that the appellant had demanded bribe money from him has not been corroborated by any witness rather under the stress of cross-examination, he has admitted that the appellant had never demanded bribe money from him in the presence of any witness at any point of time. Furthermore, his statement that he had paid the tainted currency notes to the appellant in the presence of Harinder Singh (sic) has not been corroborated by this shadow witness. As regards recovery of tainted currency notes, Harinder Singh (sic) has deposed that on their arrival in the appellant''s office, he and Sahib Singh complainant had shaken hands with the appellant and therefore, the change of colour in the process of his hand-wash was a natural consequence. The shadow witness was declared hostile for the reason that he did not lend corroboration to the version put forth by the prosecution. On being cross-examined by the learned Additional Public Prosecutor for the State, no material favourable to the prosecution could be elicited from him. The fact, therefore, remains that the evidence of Sahib Singh remained uncorroborated throughout especially when he himself has admitted that the appellant has not demanded bribe money from him in the presence of the shadow witness. As is borne out from the prosecution evidence, the tainted currency notes were recovered from Shamsher Singh accused who died during pendency of the trial. However, as testified by Sahib Singh PW Gurmukh Singh appellant had passed on the currency notes to Shamsher Singh after having received the same from him (Sahib Singh) but this fact has gone uncorroborated. Admittedly, the bribe money was not paid by Sahib Singh to the appellant in the presence of Harjap Singh DSP, who had arrived in the office of the appellant. This DSP did not ask the appellant as to the whereabouts of the currency notes, but straightway started taking hand-wash of the appellant as well as his co-accused Shamsher Singh and recovered the tainted currency notes from Shamsher Singh. There is no evidence on the file to show as to how this DSP came to know that the tainted currency notes were in the possession of Shamsher Singh. There was another important witness PW-2 Sukhinder Singh SDO, who has deposed about the recovery of tainted currency notes from Shamsher Singh. He has stated in no uncertain terms that the bribe money was neither demanded in his presence nor the same was paid in his presence. He has admitted in so many words that memo of seizure of hand-wash solution of the appellant Ex.PB, seizure memo of solution of hand-wash of Shamsher Singh Ex.PC, memo Ex.PF vide which the shirt of Shamsher Singh was seized, memo Ex.PG regarding personal search of the appellant, memo Ex.PH of personal search of Shamsher Singh and seizure memo Ex.PJ vide which the inquiry file was taken into possession by the DSP were signed by him in the office of DSP at Chandigarh. This evidence runs counter to the prosecution version. It is a celebrated dictum of law that a complainant in a vigilance raid case is an accomplice and therefore, his testimony is required to be corroborated by independent evidence for basing the conviction of the accused. In the case in hand, the shadow witness had chosen not to support the prosecution case and other witness of recovery Sukhinder Singh PW-2 has also demolished the prosecution case in its entirety in his cross-examination. On putting all these infirmities or lacunae in the prosecution case together, there can be no escape from the finding that the prosecution has dismally failed to prove the charged offence against the appellant. To fortify these submissions he has relied upon Anand Parkash v. State of Haryana 2008(2) R Cri R (Cri)335 and Karnail Singh v. State of Punjab 2009(1) R Cri R (Cri) 403.

To tide over these submissions, the learned State Counsel maintained that on evaluating the prosecution evidence in its totality, it transpires that the substratum has been established and that being so, the prosecution case cannot be thrown out of hand merely because the of the fact that the shadow witness has resiled from his earlier statement. This contention merits rejection for the discussion to follow hereunder:

Sahib Singh Ace witness has stated in candid terms that "I was to obtain certified copy of the statement of Kesar Singh in the above said inquiry. For obtaining copy of the statement of Kesar Singh I contacted Gurmukh Singh (referring to appellant) Steno to S.D.M. Kharar now present in court as accused." The question arises as to whether or not the appellant being Steno was authorized under the provisions of the Evidence Act to issue certified copy of the alleged statement. Harcharan Kaur PW-9 Clerk in the office of S.D.M. Mohali has solemnly affirmed that when the inquiry is being conducted by S.D.M., mostly its files remain with Steno or with the Reader. She has no where specifically stated that the appellant Gurmukh Singh had been authorized to issue the certified copy of Kesar Singh''s statement or that the inquiry file containing the statement of Kesar Singh was in the custody of the appellant. As per the above evidence trickled from her mouth, the inquiry files were to remain either in the possession of Steno or the Reader. There may be a copying agency in the office of Sub Divisional Magistrate, Kharar. The prosecution has not adduced the instructions or rules revealing that certified copies of such statements were to be supplied by the appellant. In view of the afore extracted evidence, it is very difficult to say as to whether inquiry file of this case was with the appellant being Steno or with the Reader of S.D.M. Kharar. Harcharan Kaur (sic) was declared hostile. On being cross-examined by the learned Additional Public Prosecutor, she deposed that " I do not remember whether I made statement on 24.4.2001 before Harjap Singh DSP Vigilance." In the next breath, she has testified that "I have no knowledge that the file remain pending with Gurmukh Singh Steno till it is signed by S.D.M. I have no knowledge whether the file Ex.PW-3/A during raid was taken by the DSP Vigilance from the accused." When she was cross-examined on behalf of the appellant, she stated that " I was working as Bill Clerk, therefore, I was not in the knowledge what record was in whose possession." Palpably her statement leads no where. The onus heavily lay upon the prosecution to demonstrate that the copy in question in fact was to be issued only by this appellant and not by any other official or agency. It is in the evidence of Harjap Singh PW-10 Investigator that " I did not record the statement of any official that the accused was competent to supply the copy. I did not record the statement of any official of copying agency for moving any application by complainant to get the copy. I have no knowledge whether the complainant has moved any application." To my mind, it was obligatory upon this witness to collect evidence in proof of the fact that this appellant was competent to supply the copy in question. In the absence of such evidence, it is very difficult to say that the supply of copy in question was within the domain of the appellant. It has to be established by the prosecution that the bribe receiver was in a position of authority over the giver and he/she (former) had received the bribe as a motive for conferment of some official favour. In the present one, these ingredients are missing.

It is in the cross-examination of Sahib Singh PW that "the accused never demanded money in the presence of any witness or shadow witness on 12.3.2001 or at any point of time." Ostensibly, he has wiped off what-so-ever he has stated in his examination with regard to the demand and acceptance of bribe money by the appellant. It is thus discernible that the demand of bribe is not established. If so, the question of its acceptance does not arise. In V. Venkata Subbarao v. State represented by Inspector of Police, A.P. 2007(1) R Cri R (Cri) 519 the Hon''ble Supreme Court has laid down that "In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved."

In Suraj Mal Vs. State (Delhi Administration), the Apex Court took the view that "mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. This view has also been followed by the Supreme Court in Banarsi Dass v. State of Haryana 2010(2) RAJ 471. Harinder Singh shadow witness PW-7 has stated that in my presence nothing was demanded by Gurmukh Singh from Sahib Singh as I was standing at the gate from where Sahib Singh and Gurmukh Singh were not visible." He was declared hostile. When he was subjected to cross-examination on behalf of the State, no material favourable to the prosecution could be wrenched out from him. When he was cross-examined by the learned defence counsel, he deposed that "I did not accompany Sahib Singh in the room of Gurmukh Singh and there was no conversation in between Gurmukh Singh and Sahib Singh." It further surfaces in his evidence that "In my presence hand-wash of Gurmukh Singh was not done. The recovery of tainted money was not effected in my presence. The papers I signed were not read over by the police to me." This evidence strikes death knell to the prosecution case.

As alleged by the prosecution, the appellant after having received the tainted currency notes had passed on to his co-accused Shamsher Singh.

In Satpal Singh (died) through L.Rs v. State of Punjab 2004(1) RCri R (Cri) 830 (P & H), recovery of bribe money was proved. The accused was working as Patwari. He had demanded Rs. 200/- from the complainant for supply of copies of jamabandi. A trap was laid and Rs. 200/- were recovered from the accused. One of the PW was given up as won over. The shadow witness had stated that no demand was made in his presence. This Court was pleased to hold that the essential ingredient of Section 13(2) of the Prevention of Corruption Act, 1988 was missing. As ruled by the Apex Court in re: Meena (Smt.) wife of Balwant Hemke v. State of Maharashtra 2000(2) R Cri R (Cri) 661 mere recovery of the currency notes and positive result of the phenolphthalein test is not enough to establish the guilt of the appellant on the basis of perfunctory nature of materials and prevaricating type of evidence. If the matter is viewed in the background of these observations, the essential ingredient of Section 13(2) ibid is missing herein as Harinder Singh PW-7 the shadow witness has stated that nothing was demanded by Gurmukh Singh from Sahib Singh and there was no conversation in between the two. Axiomatically, the ingredient of demand of bribe by the appellant from Sahib Singh complainant is missing in statement of Harinder Singh PW. In R.V. Subha Rao v. State represented by Inspector of Police, Anti Corruption Bureau, Kakinada Range 2005(4) Recent Criminal Reports(Criminal) 716 (A.P.) there was no witness to the demand of bribe except the complainant. It was held that in case of bribery, mere recovery of amount from the accused is not sufficient for conviction, when the substantive evidence is not reliable. In Pritam Singh v. State of Haryana 1992(3) Recent Criminal Reports (Criminal) 139 (P&H) also there was no evidence of shadow witness to the effect that the accused had made a demand. This Court held that the complainant was not truthful. In Banshi Lal Yadav Vs. State of Bihar, , in context of Section 4(1) of the Prevention of Corruption Act, 1947, it was held by the Supreme Court as under: "Before presumption can be raised, the burden is on the prosecution to prove that the accused has accepted or obtained, or has agreed to accept or attempted to obtain, for himself any gratification other than legal remuneration etc." Sukhinder Singh SDO PW-2 has deposed that "my statement was not recorded by the police at the spot or at any other place. No money was paid by the complainant to the accused in my presence. I did not see the passing of the money." It is in his further cross-examination that "DSP had shown me the amount which was allegedly recovered by him from the accused. First of all, person of Shamsher Singh was searched and Rs. 500/-were recovered by the police from him. Police did not question Gurmukh Singh regarding the tainted money." It is notable here that Shamsher Singh accused from whom the recovery was allegedly effected is no more in this world. If the money was accepted by the appellant, in that case, the investigating officer was required to have ensured that the tainted currency notes were accepted by the appellant. This could have been ascertained by questioning the appellant. In his next breath, Sukhinder Singh has stated that the police searched the person of the accused in my presence and nothing was recovered. Harjap Singh DSP has no where stated that before he carried out personal search of the deceased Shamsher Singh or Gurmukh Singh appellant, he had offered his personal search to them. In State of Punjab v. Kushal Singh Pathania 2004(4) Recent Criminal Reports (Criminal) 498 it has been held that "if the Police Officer failed to offer himself for the search conducted by the accused, then the search conducted on the accused is apparently illegal and acquittal is bound to follow." An identical view has been taken in Karnail Singh''s case(supra). In view of the rule laid down in these authorities, there being no evidence to the effect that before he made personal search of the accused, the Investigating Officer had offered his own personal search to them, the search conducted on the accused is palpably rendered illegal.

The up-shot of the above discussion is that the evidence adduced by the prosecution falls short of establishing the charged offence. Sequelly, this appeal succeeds and is accepted. The judgment/order of sentence passed by the learned Special Judge, Rupnagar is set aside. The appellant Gurmukh Singh is acquitted of the charged offence by giving him benefit of reasonable doubt.

Since the appeal has been decided, all pending Criminal Miscellaneous, if any, also stand disposed of.