Lakhmir Singh vs State of Punjab

L.N. Mittal, J.—This is criminal appeal by convict Lakhmir Singh against judgment and order dated 02.05.2002 passed by learned Special Judge, Patiala whereby the accused-Appellant stands convicted u/s 13(1)(d) read with Section 13(2) and u/s 7 of the Prevention of Corruption Act, 1988 (in short the Act) and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 1,000/-and in default thereof, to undergo further rigorous imprisonment of two months, for each of the two offences, but both the substantive sentences of imprisonment have been ordered to run concurrently.

Prosecution case is that on 27.05.1996, complainant Kulbir Singh approached the accused, who was posted as Patwari Halwa, Maru, for copy of Jamabandi required by the complainant for taking loan for tractor. The accused demanded Rs. 500/-as illegal gratification for the same. The bargain was, however, struck for Rs. 400/-. The accused told that he would come to the complainant''s village Maru with relevant record on the next day for doing the needful. The complainant told Pritam Singh about the demand of bribe by the accused. On 28.05.1996, Kulbir Singh and Pritam Singh went to Vigilance Bureau at Patiala and Kulbir Singh made statement to DSP Amar Nath regarding the aforesaid fact. Thereupon, FIR was registered. The complainant gave four currency notice of Rs. 100/-denomination to DSP Amar Nath who applied phenolphthalein powder thereto and returned the same to the complainant with necessary instructions. Demonstration was also given to the complainant and to Pritam Singh (who was made shadow witness), depicting that piece of paper with phenolphthalein powder turned the colour of solution of sodium carbonate to pink. Gurmukh Singh, PW-8, Secretary of a Cooperative Society was also joined in the raiding party.

The complainant and the shadow witness went to the house of the complainant whereas the remaining raiding party stayed back at some distance. The complainant and the shadow witness went inside the house of the complainant and found the accused there. The complainant asked for copy of Jamabandi. The accused demanded the bribe money from the complainant. The accused prepared the copy of Jamabandi and gave it to the complainant and then on demand of the accused, the complainant gave him the tainted currency notes as illegal gratification. The accused put the currency notes in the pocket of his shirt. Pritam Singh, shadow witness gave requisite signal to the raiding party. They reached the spot. Hand wash of the accused in sodium carbonate solution turned its colour to light pink. It was sealed in a vial. Tainted currency notes were recovered from the accused and numbers thereof tallied with the numbers of the currency notes which had been recorded in the memo while handing over the same to the complainant. The currency notes were also seized by the police. Pocket wash of shirt of the accused also turned the colour of sodium carbonate solution into light pink. It was also separately sealed in vial and was seized by the police. Jamabandi Register and Roznamcha Patwari were also seized by the police from the spot and so also the copy of the Jamabandi supplied by the accused to the complainant. Necessary investigation proceedings were conducted on the spot. After obtaining sanction order from the Deputy Commissioner/Collector for prosecution of the accused and on completion of investigation, report u/s 173 of the Code of Criminal Procedure (in short, Cr. P.C) was presented for prosecution of the accused for offences under Sections 7 and 13(2) of the Act.

Charge u/s 7 and Section 13(1)(d) read with Section 13(2) of the Act was framed against the accused who pleaded not guilty and claimed trial.

In order to bring home the charge against the accused, the prosecution examined nine witnesses. Head Constable Gurcharan Singh PW-1 and Constable Sarabjit Singh PW-2 being formal witnesses tendered their respective affidavits in evidence.

Deepak Sharma PW-3 proved sanction order issued by the Deputy Commissioner/Collector for prosecution of the accused.

Kiran Bir, Clerk PW-4 proved service book of the accused to depict that he was posted as Patwari.

Ramjas PW-5 was Kanugo at the relevant time. He stated that the accused was working as Patwari under him. He proved copy of Jamabandi Exhibit PF (which had been given by the accused to the complainant) to be in the handwriting of the accused and so also Khasra Girdawar Exhibit PF/1.

Complainant-Kulbir Singh, PW-6, Pritam Singh, Shadow Witness, PW-7, Gurmukh Singh, PW-8 and Head Constable Rajwant Singh, PW-9 (who was also in the raiding party) have broadly stated according to the prosecution version.

DSP, Amar Nath who investigated the case could not be examined as witness as he had since died.

The accused was examined u/s 313 Code of Criminal Procedure to explain the incriminating circumstances appearing against him in the prosecution evidence. The accused while admitting that he was posted as Patwari Halqa Village Maru at the relevant time, broadly denied the other incriminating circumstances and claimed to be innocent. The accused alleged that he was apprehended from his house and this false case was planted on him. The complainant wanted the accused to make false Girdawari showing damage to the crop of the complainant due to natural calamities so that the complainant could wrongfully claim compensation from the Government, but the accused refused to oblige the complainant and, therefore, the accused was falsely implicated.

In defence, the accused examined four witnesses. Gurmeet Singh, Patwari DW-1 and Rajinder Kumar, Patwari, DW-2 stated regarding taking charge of Halqa Patwari, Maru

Mohar Singh, Lambardar DW-3 and Jaswant Singh Ex-Sarpanch DW-4 stated that Kulbir Singh complainant and Pritam Singh shadow witness are bad persons and they have falsely implicated the accused. The complainant wanted the accused to make false report regarding damage to his crop. They also denied that any raid as alleged by the prosecution was conducted in the village on 28.05.1996.

Learned Special Judge, Patiala vide impugned judgment and order dated 02.05.2002 convicted and sentenced the accused as already noticed in the opening part of this judgment. Feeling aggrieved, the convict has preferred the instant Criminal Appeal.

I have heard learned Counsel for the parties and perused the case file with their assistance.

Learned Counsel for the Appellant vehemently contended that Head Constable Rajwant Singh PW-9 was not certain if the place of raid was house of the complainant or not and therefore, place of occurrence is not established. The contention is completely misconceived and untenable. The said witness, who was just present in the raiding party, could not be aware of the place of occurrence being house of the complainant. On the other hand, Kulbir Singh PW-6 and Pritam Singh PW-7 have specifically stated that about the raid being conducted at the house of the complainant. Similar statement has also been made by Gurmukh Singh, PW-8. Consequently it can not be said that the place of occurrence has not been established.

Learned Counsel for the Appellant also contended that the prosecution version is intrinsically unreliable because the accused as Patwari would not have gone to the house of the complainant to deliver copy of the Jamabandi and could not have waited there for the raid to be conducted. The contention is again misconceived and devoid of substance. The accused could not know that any such trap would be laid to catch him read-handed. On the contrary, it has come in evidence that there is no Patwarkhana in the village and therefore, it was convenient for the complainant as well as the accused that the copy of the Jamabandi was to be delivered at the house of the complainant.

Learned Counsel for the Appellant also contended that there are some contradictions in the statements of prosecution witnesses. The complainant stated that he alone had gone to the accused on 27.05.1996 when initial demand of bribe was made, but Pritam Singh PW-7 has stated that he also accompanied the complainant on that day. It was also contended that statement of complainant regarding said demand is not corroborated by any independent witness. It was also pointed out that from the testimony of Pritam Singh, it may be inferred that intimation to the police was given on 27.05.1996 itself. It was also pointed out that it has come in prosecution evidence that some persons of the locality had gathered at the spot, but none of them has been cited as witness.

It was also pointed out that Gurmukh Singh PW-8 was only Secretary of a Cooperative Society and no respectable public servant was joined in the raiding party. It was also submitted that complainant''s wife who was also present in the house has not been examined as witness. It was also canvassed that the accused had never demanded illegal gratification on earlier occasions. It was also argued that mere recovery of tainted money from the accused is not sufficient to convict him. Contradiction regarding time of raid and duration of stay of raiding party was also pointed out by submitting that Gurmukh Singh PW-8 was dropped back at his office at 2.30pm. Affidavits of two formal witnesses were also alleged to be defective on the ground of improper verification. It was also contended that the Investigating Officer did not offer himself for search before searching the accused. Sanction order for prosecution of the accused was also assailed on the ground that amount of illegal gratification has been mentioned to be Rs. 5,00/-instead of Rs. 400/-. It was also contended that the accused has good service record. It was lastly argued that offence u/s 13(2) of the Act is not made out because the said provision applies to habitual offender whereas there is allegation of single transaction against the accused.

Counsel for the Appellant relied on judgments of Hon''ble the Supreme Court in the cases of Darshan Lal v. The Delhi Administration 1974 CLR 611 ; Raghbir Singh Vs. State of Punjab, ; Banshi Lal Yadav Vs. State of Bihar, ; Bal Krishan Sayal Vs. State of Punjab, ; Suraj Mal Vs. State (Delhi Administration), ; G.V. Nanjundiah Vs. State (Delhi Administration), ; Major Som Nath Vs. Union of India (UOI) and Another, and judgments of this Court in the cases of Harvinder Singh v. The State of Punjab 1974 CLR 616; Kuldip Rai v. State of Punjab 2002 (2) RCR (Cri) 781; Resham Singh v. The State (U.T. Chandigarh) 1981 PLR 402; State of Haryana v. Sudesh Kamal 1991 (2) RCR (Cri) 641; Moti Lal Banerjee v. State of Haryana 1985 RCR (Cri) 570; Darshan Singh v. The State of Punjab 1988 (2) RCR (Cri) 299; Bakshi Ram v. State of Punjab 1994 (2) RCR (Cri) 84; Ajit Singh v. State of Punjab 1993 (1) RCR (Cri) 6 and Shaukat Ali v. State of Haryana 1996 (2) RCR (Cri) 235 and also relied on judgment of Delhi High Court in Ram Kishore v. State 1987 (2) RCR (Cri) 30.

Contentions raised by the Appellant''s counsel have been controverted by learned State counsel.

As regards alleged contradictions in the statements of prosecution witnesses, I have gone through the said statements with assistance of the Appellant''s counsel, but there is no material contradiction in the said statements to shake the basic fabric of the prosecution case. On the other hand, examination-in-chief of the complainant was recorded on 04.08.2000 i.e. more than four years after the raid and his cross examination was recorded on 23.02.2001 i.e. almost five years after the raid. Pritam Singh PW-7 was examined on 23.02.2001 and Gurmukh Singh PW-8 was examined on 23.05.2001 i.e. almost five years after the raid. In view of lapse of aforesaid long period, some contradictions in statements of witnesses are bound to occur. The said contradictions are natural ones and are not sufficient to impeach the veracity of their statements.

Initially demand by the accused was made in the presence of complainant only and therefore, there could be no other witness regarding the said demand. However, at the time of trap, the accused again demanded the illegal gratification and the complainant and the shadow witness have both stated about the said demand. Consequently, it cannot be said that demand and acceptance of bribe money by the accused has not been proved.

As regards joining of other independent witnesses, even the complainant and the shadow witness are independent witnesses because they had no grudge against the accused to implicate him in a false case. Defence version that the complainant wanted the accused to make false Girdawari regarding damage to crop of the complainant to enable him to claim compensation is completely unsustainable because the occurrence took place on 28.05.1996 when no crop was standing in the field. Consequently, there was no occasion for the complainant to request the accused to make any Girdawari relating to damage to the crop of the complainant. No direct evidence in this regard has either been produced by the accused in his defence. Statements of Mohar Singh DW-3 and Jaswant Singh DW-4 are general in nature. Their statements are otherwise not reliable because they never made any complaint to any authority that the accused had been falsely implicated for the aforesaid reason. Mohar Singh being Lambardar and Jaswant Singh being Ex-Sarpanch were supposed to have informed the authorities about alleged false implication of the accused if the accused had been falsely implicated. However, both these witnesses did not make any such complaint to the authorities and therefore, their statements in defence for the first time in the Court cannot be taken at face value. Gurmukh Singh PW-8, on the other hand, is also independent witness and there is no earthly reason why he would make false statement against the accused. The mere fact that he was only Secretary of Cooperative Society and not high ranking officer would not be sufficient to doubt or discard his testimony. The persons who later on gathered at the spot after the raid could not be material witnesses for proving the prosecution case as they could not depose about any ingredient of the offences with which the accused has been charged. Non-examination of complainant''s wife as prosecution witness is also completely immaterial and insignificant because her testimony could not have added more probative value to the statements of the complainant and the shadow witness. It is the quality and not the quantity of evidence that matters. Evidence has to be weighed and not counted.

The contention that the accused earlier did not make any demand of bribe is also untenable because earlier there was no such occasion. The complainant and the shadow witness have, of course, admitted that earlier the accused had recorded Girdawari regarding damage to their crops and on its basis, they claimed compensation. However, it does not mean that the instant occurrence is false or doubtful in any manner. On the contrary, there is also no evidence on record to depict that the accused had good or impeccable record of service. There is not even an iota of evidence on record regarding this contention raised by the counsel for the Appellant.

The contention that mere recovery of tainted money from the accused is not sufficient to convict him is completely misconceived and devoid of merit. It is not merely the recovery of tainted money which is proved by the prosecution evidence but also the demand and acceptance of the illegal gratification by the accused-Appellant stands fully established from the credible evidence of the prosecution.

Sanction order for prosecution of the accused-Appellant cannot be said to be defective because the order read as a whole clearly depicts that even according to sanction order, the accused accepted illegal gratification of Rs. 400/-. Reference to the amount of Rs. 500/-in the initial part of the sanction order is apparently to the demand of Rs. 500/-made by the accused, but in subsequent part of the sanction order, the amount has been mentioned to be Rs. 400/-repeatedly and it has also been mentioned that the said amount was in the form of four currency notes of Rs. 100/-denomination. All detailed facts have been mentioned in the sanction order. Consequently, it cannot be said that the sanction order is defective or is vitiated or suffers from any infirmity.

Link evidence also cannot be said to be defective. Even otherwise there is direct evidence to prove the guilt of the accused. The link evidence regarding pink colour of solution containing phenolphthalein power is only corroborative evidence. The prosecution has led the said evidence also, in addition to the direct evidence.

Offence u/s 13(1) Clauses (a) and (b) requires that the public servant habitually accepts or obtains the illegal gratification, but offence u/s 13(1)(d) does not contain the requirement of ''habitual'' conduct and the said offence is committed even by single transaction. In the instant case, the accused was charged with offence u/s 13(1)(d) read with Section 13(2) of the Act, besides offence u/s 7 of the Act. The said offence does not require habitual conduct.

The judgments cited by counsel for the Appellant at the bar as mentioned hereinbefore are completely distinguishable on facts are not applicable to the facts of the case.

For the reasons aforesaid, I conclude that prosecution has successfully brought home the charge against the accused beyond reasonable doubt. Consequently impugned judgment of conviction is affirmed.

Learned Counsel for the Appellant prayed for reduction in sentence submitting that the occurrence took place 15 years ago. It was also submitted that the accused-Appellant subsequently met with an accident and his left arm has been amputated. Photostat copy of disability certificate dated 22.12.2005 was shown in support of this contention. On the other hand, State counsel opposed the prayer for reduction of sentence. I have carefully considered the matter. Keeping in view all the circumstances, I am of the considered opinion that ends of justice would be met if the sentence of imprisonment for two years is reduced to rigorous imprisonment for one year for each of the two offences while maintaining the sentence of fine and the sentence of imprisonment in default thereof. Obviously both the substantive sentences of imprisonment shall run concurrently. With reduction in sentence as aforesaid, the appeal stands disposed of accordingly. The Appellant, who is on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence.