Hari Kishan vs State of Haryana

A.S. Nehra, J.

This appeal is directed against the judgment and order dated 8.5.1987/13.5.1987 passed by the Special Judge, Jind, by which Hari Kishan, appellant has been convicted under Section 5(1)(d) of the Prevention of Corruption Act read with Sections 161 and 165 IPC. He was sentenced to undergo R.I. for one year and to pay a fine of Rs. 1000/ and in default of payment of fine, to undergo further R.I. for 3 months under Section 161 IPC and R.I. for one year each under Section 165 IPC and Section 5(1)(d) of the Prevention of Corruption Act. The substantive sentences awarded to the appellant, however, were ordered to run concurrently.

Briefly stated, the prosecution case is that one Birja Nand of village Amarheri died in 1983 leaving behind his widow Lachhmi Devi, three daughters and six sons including Hukam Singh and Daya Singh, PW5. On 19.6.1986, Hukam Singh alongwith Hari Chand Lambardar came and lodged a report, Ex. PD, in the roznamcha of the Patwari with regard to the death of Birja Nand and for entering mutation of his estate. The Patwari entered mutation No. 618 on the basis of the said report on 19.6.1986, and it was verified by the Field Kanungo on 25.9.1986. The said mutation together with some other mutations was put up by the Patwari Hari Kishan before Mr. Des Raj Bindal, Tehsildar (PW1) on 30.9.1986. As none from the heirs of Birja Nand deceased was present, the Tehsildar recorded their absence under his signatures on that date and mutation case was ordered to be taken up later on. On 27.10.1986, Daya Singh (PW5) alongwith Mithu (PW7) went to the house of the appellant at Jind and requested him to enter mutation of inheritance relating to his father. The appellant demanded a bribe of Rs. 100/ to get the mutation sanctioned. Daya Singh did not want to give the bribe and instead decided to report the matter to the Vigilance authorities. Thereafter, he alongwith Mithu (PW7) went to the office of the State Vigilance Bureau, Jind and made a detailed statement, Ex. PE to Inspector Brij Kishore. It was signed by him in token of its correctness. After making his endorsement on the said statement, Inspector Brij Kishore sent the same through Constable Lakhmi Chand for registration of the case, on the basis whereof formal FIR, Ex. PE/1 was recorded by Inspector Norang Singh (PW6) at 6.30 PM.

Daya Singh PW5 had also handed over one currency note of Rs. 100/ Ex. P1 to Inspector Brij Kishore (PW9), who after preparing memo Ex. PF and noting the serial number of the currency note, treated the said note with phenolphthalein powder and kept it aside. He then searched the person of Daya Singh (PW5) and having found nothing else, prepared memo, Ex. PG and handed over that currency note to Daya Singh, PW5. The Inspector then applied that very phenolphthalein powder on a piece of paper and put sodium carbonate powder in a glass containing water. When the said piece of paper was dipped in the chemical solution, the colour of the water turned pink. He then threw away that slip of paper and the water. This demonstration was carried out in presence of Daya Singh (PW5), Mithu (PW7), District Revenue Officer Shri Bishna Ram and Head Constable.

In the morning, complainant Daya Singh went to the house of the appellant, who told him that he was going to village Ahirka and on his return from there, he would visit complainant''s house at village Amarheri at about 5.00/5.15 PM. Daya Singh passed on that information to Inspector Brij Kishore (PW9). Thereafter, Inspector Brij Kishore, accompanied by DRO Bishna Ram complainant, Daya Singh and Mithu (PW.7) went to village Amarheri on bicycles, reaching there at about 5.30 PM. Inspector Brij Kishore directed complainant Daya Singh to hand over the treated currency note to the accused if he asked for bribe, and thereafter to give a signal to Mithu, who was to follow him at some distance, by touching his head with his hand. The signal was to be passed on by the shadow witness Mithu to the raiding party.

Daya Singh went ahead of the raiding party and found the appellant sitting on a cot in the internal courtyard of his house. The appellant asked him to give him money and that he would get the work done; whereupon Daya Singh gave that currency note to the appellant who took the same in his hand and put it in the pocket of his shirt. Daya Singh then gave the pre arranged signal, which was passed on by Mithu to the raiding party; as a result whereof Inspector Brij Kishore, DRO Bishna Ram and other members of the raiding party came there. Inspector Brij Kishore disclosed his identity and on search of the appellant, he recovered the currency note, Ex. P.1, from the pocket of the shirt of the accused. It was found to be the same currency note which had been treated with phenolphthalein powder and handed over to Daya Singh (PW5) by the Inspector. The appellant was made to dip his hand in a solution. The handwash turned pink. In was put into two nips which were then sealed. One of those nips was sent to the Chemical Examiner.

Similarly, the currency note, Ex. P.1, was also dipped in another solution of water. The same turned pink. The water which turned pink, was also transferred in two other nips, and one such nip was sent to the Chemical Examiner. In a similar manner, the pocket of the shirt of the appellant from which the currency note had been recovered, was also dipped in fresh solution of water. The colour of the water turned pink and so was the pocket of the shirt. The solution was transferred into two nips and sealed. One of the nips was sent to the Chemical Examiner and the shirt of the appellant Ex. P. 5, was also taken into possession vide recovery memo. Ex. PK. The seal after use was handed over to Mithu PW. Supplementary statements of Daya Singh and Mithu were also recorded.

At the trial, the prosecution produced the original roznamcha containing original report No. 359 dated 19.6.1986, Ex. PD, made by the appellant with regard to the estate of Birja Nand on the basis of the statement of Hari Chand Lambardar, Amarheri. The appellant did not dispute that the said report was made by him in his hand. Mutation No. 618, Ex. PA, was entered on the basis of the said report on the same day and it was verified by Field Kanungo on 25.9.1986. It was put up before Mr. Des Raj Bindal, Tehsildar, PW. 1, on 30.9.1986 at Jind alongwith some other mutations. Mr. Desraj Bindal (PW. 1) stated that while he sanctioned some other mutations, none appeared in connection with mutation No. 618 and, therefore, he noted the words "gair hazir" under his initials and dated the order as 30.9.1986. The mutation was, thus, pending on 27.10.1986, the date of occurrence. It was ultimately sanctioned by the Tehsildar on 30.12.1986 as deposed by Kundan Lal, Patwari (PW2). Desraj Bindal Tehsildar (PW1) stated that it was not an invariable rule to go to the village concerned for attestation of the mutation. In fact, mutations relating to an area within 34 kilometres were kept and dealt with at one place. Notice of attestation of mutation was given by the Patwari through Chowkidar. Kundan Lal, Patwari (PW2) produced the original mutation No. 618 sanctioned on 30.12.1986 by the Tehsildar. In crossexamination he stated that mutation was sanctioned in the presence of the parties and in accordance with the tour programme made by the Revenue Officer.

The prosecution also proved the sanction, Ex. PB, granted by the Deputy Commissioner, Jind, for the prosecution of the appellant. Karan Singh, clerk of the office of the Deputy Commissioner, Jind, for the prosecution of the appellant. Karan Singh, clerk of the office of the Deputy Commissioner (PW4) stated that the investigation file was brought by Inspector Brij Kishore of S.V.B. and the same was submitted to Shri Sajjan Singh, Deputy Commissioner, alongwith docket of S.V.B. Hissar, and after going through the same, Shri Sajjan Singh, D.C. signed the sanction order Ex. PB. Baldev Singh, Sadar Kanungo (PW3) also identified the signatures of the Deputy Commissioner on the sanction order, Ex. PB. Baldev Singh PW3 deposed, on the basis of the order Ex. PC, that the appellant had been posted at Ahirka Patwar Circle on 21.8.1984 and he was still working there as such on 27.10.1986, the date of incident. The appellant did not dispute that he was posted as Patwari at Ahirka Patwar Circle comprising Ahirka, Amarheri and Kair Kheri on 27.10.1986.

PW8 Constable Lakhmi Chand is a formal witness who had produced his affidavit Ex. PM. The Investigating Officer had sent statement, Ex. PE of complainant Daya Singh through him; on the basis whereof he had got registered FIR Ex.PE/1 at PS Hissar at 6.30 PM. PW9 is Inspector Brij Kishore who gave the entire version about the manner in which investigation was conducted by him. He further added that he had met Deputy Commissioner, Jind, and obtained permission for raid and had also requested him to make available some responsible officer to join the raid. The Deputy Commissioner directed Bishna Ram, D.R.O. to join the raiding party. The Investigating Officer had also held a demonstration before starting for the raid and prepared memo. Ex. PH in this connection. He had also got prepared scaled site plan, Ex. PR from Devi Dayal draughts man. In his crossexamination, he stated that there was notification of the State Government empowering Inspector, State Vigilance Bureau to investigate a case under the Prevention of Corruption Act. He further stated that he had obtained permission of the Deputy Commissioner for conducting the raid at about 3.45 PM and he himself had gone to the residence of Deputy Commissioner for the purpose. The prosecution also placed on record application, Ex. PT, made by Inspector Brij Kishore to the Deputy Commissioner as also endorsement Ex. PT/1 of the D.C. to the effect that the raid should be conducted in the presence of D.R.O. The investigating officer further stated that solution of sodium carbonate was prepared by mixing water and sodium carbonate. He denied the suggestion that the case was fabricated one. The prosecution also tendered in evidence affidavit, Ex. PN of HC Balbir and gave up Bishna Ram, District Revenue Officer, Devi Dayal Draughtsman and also Dy. S.P. Ram Chander, as unnecessary.

The appellant in his statement under Section 313 Cr.P.C., admitted that he was posted as Patwari, Ahirka Patwar Circle comprising Ahirka, Amarheri and Kair Kheri on 27.10.1986 and that he had entered report in the roznamcha, Ex. PD, with regard to death of Birja Nand, father of Daya Singh (PW5) who died in 1983 leaving behind 3 killa of land at village Amarheri. He further stated that Birja Nand was survived by his widow, three daughters and six sons including Daya Singh PW5. He further admitted that the said mutation was taken up by the Tehsildar, Jind on 30.9.1986 and the heirs of Birja Nand having failed to appear, the mutation was kept pending. He, however, denied the other facts and circumstances appearing against him in the prosecution evidence. He also stated that under instructions of the Tehsildar, he had put up 45 mutations relating to village Amarheri on 30.9.1986 at Jind, adding further that notice was sent through Chowkidar to the parties concerned and that the parties had come to Tehsil office, Jind in the morning while the Tehsildar had returned from tour only at 3.00 PM, when the cases regarding mutations were put up before him. He sanctioned the mutation cases in which the parties were available. Daya Singh, however, had gone away after waiting for the Tehsildar upto 3.00 PM and the mutation in question was, thus, not sanctioned. He further stated that one of the persons, whose mutation was sanctioned that day, was Chhattar son of Jhandu, who had enquired from Daya Singh as to why his (Daya Singh''s) mutation had not been sanctioned, as a result whereof Daya Singh got enraged and got the appellant falsely implicated in this case.

The appellant examined four witnesses in his defence. DW1 Arjun Dev, Steno to Deputy Commissioner, Jind, deposed that according to entry at serial No. 704 dated 27.10.1986 in the log book regarding the official car of D.C. containing entries in his hand, the Deputy Commissioner had left for tour of six villages for checking girdawari at 1.30 PM and returned to Jind at 8.00 PM. In crossexamination, he stated that the Deputy Commissioner had left office for his residence at 1.00 PM and left for the tour at 1.30 PM. DW 2 Kundan Lal, Patwari, deposed on the basis of mutation register that copies of mutations, Ex. DA to DD, were attested by the Tehsildar on the dates mentioned therein. These included mutation No. 622 of Chhatar Ram son of Jhandu. He further stated that the work of appellant, Hari Kishan Patwari was commended by the Deputy Commissioner as per entries in the proceeding book dated 28.10.1985 and 22.4.1986. DW3 Partap Singh, resident of village Ahirka, stated that Hari Kishan Patwari was maintaining a Patwarkhana in his house at village Ahirka. He further stated that he had taken that room on rent at the rate of Rs. 30/ per month. In his crossexamination, he stated that he had never issued receipt to the appellant. DW4 Hari Chand Lambardar, Amarheri stated that he had accompanied Hukam Singh, brother of Dayal Singh to the office of Hari Kishan, Patwari, who entered mutation and got his thumb impression on it. In crossexamination he stated that he had gone to the house of the appellant at Jind.

Mr. H.S. Gill, Senior Advocate, for the appellant, contended that in order to bring home the guilt to the appellant, it had to be established by the prosecution that the appellant had demanded the bribe from complainant Daya Singh (PW5) and had accepted the same in pursuance of the said demand. He further contended that to prove these ingredients, merely the statement of complainant Daya Singh (PW5) or the trap witness Mithu (PW7) cannot be relied upon without independent corroboration. He further contended that the solitary independent witness Birja Nand, District Revenue Officer, was not examined by the prosecution and, therefore, the appellant was entitled to be acquitted. In support of his argument, he relied upon ''Darshan Lal v. Delhi Administration, 1974(2) Chandigarh Law Reporter 611, B.C. Goswami v. Delhi Administration, AIR 1973 (SC) 1457, ''Prem Kumar v. State of Punjab, 1976 Chandigarh Law Reporter (Punjab & Haryana) 366, Mohinder Singh v. State of Punjab, 1990(2) RCR 371 and Gurmej Singh v. State of Punjab, 1987(2) RCR 296.

In Darshan Lal v. Delhi Administration (supra) it was held that trap witnesses in a case under Section 5(2) of the Prevention of Corruption Act, being interested in the success of the trap, the Court should require independent corroboration of their statements before convicting the accused. In Prem Kumar v. State of Punjab (supra), it has been held that no implicit reliance can be placed on the testimony of trap witnesses in the absence of independent corroboration. Trap witnesses are interested and partisan witnesses and on that count they spring from a tainted source. It was further held that unless there is independent and trustworthy corroboration of the evidence of all these prosecution witnesses, the same could not form basis for conviction of the accused. In Ram Parkash Arora v. The State of Punjab, AIR 1973 SC 498 it has been held by the Apex Court as under :

"It must be remembered that both Joginder Singh (bribe giver) and Dalbir Singh (shadow witness) P.Ws. were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."

After hearing the learned counsel for the parties, I hold that in the present case aforementioned requirements of law have not been satisfied. The independent witness, Sh. Birja Nand, District Revenue Officer, has been withheld by the prosecution. Thus, the alleged demand of bribe and acceptance thereof by the appellant is not supported by any independent evidence and as such, the appellant is entitled to the benefit of doubt in view of the dictum laid down by the Supreme Court in the Darshan Lal''s case (supra).

In the net result, this appeal is allowed, conviction and sentence of the appellant are set aside and he is hereby acquitted. The fine, if already paid by him be refunded.