Mohinder Singh vs State of Punjab

R.K. Nehru, J. (Oral)

This appeal has been directed against the judgment of conviction and the order of sentence, both dated 2.7.1986, passed by Special Judge, Ludhiana, whereby the appellant has been convicted for offences under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and under Section 161 of the Indian Penal Code and as a result thereof sentenced in the following terms :

U/ss 5(1)(d)/5(2) Prevention of Corruption Act RI for 11/2 years and to pay a fine of Rs. 200/## and in default of payment of fine to further undergo RI for six months.

U/s 161, IPC R.I. for six months.

Both the substantive sentences were ordered to run concurrently.

The case of prosecution in brief can be summed up thus :

The appellant at the relevant time was Patwari, posted in village Kulhar. Complainant Chamkaur Singh, PW3, owned lands in villages Sihar and Kulhar which fell within the halqa patwar of the appellant. The complainant needed the copy of the jamabandi of his land with a view to obtain some loan from the bank and in that connection he, on 25.12.1984 contacted the appellant to obtain the copy of the jamabandi. The appellant demanded Rs. 100/ as illegal gratification for doing the needful. The bargain was ultimately struck at Rs. 70/. The appellant asked the complainant to contact him on 27.12.1984 after lunch and to get the copy of the jamabandi on payment of Rs. 70/. The complainant, however, did not want to pay any bribe to the appellant. As such, on 27.12.1984 he went to Ludhiana where he contacted Vigilance Inspector Mela Ram in his office and informed him about the demand of illegal gratification made by the appellant. The Vigilance Inspector, thereupon recorded his statement, Exhibit PC and sent it to police station Dehlon where the case was registered under formal FIR, Exhibit PC/1. After dispatching statement, Exhibit PC, to the police station, the Vigilance Inspector took from the complainant two currency notes, Exhibits P1 and P2 of the denomination of Rs. 50/ and Rs. 20/ respectively, treated them with phenolphthalein powder and handed them over to the complainant under memo. Exhibit PD. This Inspector also gave a demonstration to the complainant by mixing sodium carbonate in a tumbler containing water. The hands of complainant were washed in that solution, as a result of which the solution turned pink. The Vigilance Inspector then formed a raiding party consisting of Chamkaur Singh, PW3, ASI Darshan Singh, PW5 and other police officials. The raiding party left in a jeep for village Kulhar where, on the way the Inspector also joined Dalip Singh Lamberdar and Bhinder Singh of village Kulhar in the raiding party. The raiding party then went to a dera, known as Dharamshala.

The Vigilance Inspector then chalked out a plan to trap the accused while accepting the bribe. As per the plan, complainant Chamkaur Singh, PW3, was assigned the role of a decoy and was directed to go to the patwarkhana and pass on the tainted money to the appellant on his demand. ASI Darshan Singh, PW5, was directed to act as a shadow witness with the direction to give a signal to the members of the raiding party after the tainted money had been passed on to the appellant.

After the plan was finalised, Chamkaur Singh, PW3, went inside the patwarkhana where the appellant was found sitting on a cot, doing some writing work. On seeing the complainant, the appellant enquired from him whether he had brought the settled amount and on his replying in the affirmative, the appellant issued to him a copy of jamabandi Exhibit P17 after receiving the tainted currency notes from him. Thereupon the Vigilance Inspector along with other members of the raiding party went inside the Patwarkhana and disclosed his identity to the appellant. He then put the hands of the appellant in a solution of sodium carbonate as a result of which the solution turned pink. This hand wash was then sealed and seized under memo, Exhibit PC. The Vigilance Inspector also effected the personal search of the appellant, resulting in the recovery of tainted currency notes, Exhibits P1 and P2, besides some other currency notes from inside the pocket of the short coat (Vasket), Exhibit P15, which the appellant was then wearing. The search also resulted in the recovery of a purse containing some more currency notes. All these articles were seized under memo. Exhibit PG. The Vigilance Inspector also got the short coat, Exhibit P15, removed from the person of the appellant and washed its inner pocket in a solution of sodium carbonate. This solution turned pink. That pocket wash was sealed and seized under memo. Exhibit PH. At that time, the complainant also produced copy of the jamabandi. Exhibit P17, before the Vigilance Inspector who seized the same under memo, Exhibit PJ. All these memos were attested by Chamkaur Singh, PW3, ASI Darshan Singh, PW5 as also by PWs Dalip Singh and Binder Singh. The Vigilance Inspector also prepared visual site plan Exhibit Ex. PL of the spot, recorded the statements of the witnesses and arrested the appellant.

After completion of the investigation and on receipt of the report from the Forensic Science Laboratory, Chandigarh, Exhibit PO, the appellant was sent up to stand his trial, leading to his impugned conviction and sentence.

In support of its case, the prosecution has examined as many as six witnesses, namely, Ved Parkash PW1, Dogar Singh, PW2, Chamkaur Singh, PW3, SI Jai Singh, PW4, ASI Darshan Singh, PW5 and DSP Amar Nath, PW6. The Vigilance Inspector Mela Ram who was the main investigating Officer in this case, could not be examined, he having died during the trial itself.

In his statement under Section 313 of the Code of Criminal Procedure, the appellant denied the allegations of the prosecution and pleaded his innocence in the crime. He, however, did not lead any evidence in his defence.

I have heard the learned counsel for the appellant and the learned counsel for the State and have gone through the evidence and other material on record.

As per the settled law, once the prosecution is successful in proving the recovery of tainted money from the possession of the accused then by virtue of Section 4 of the Prevention of Corruption Act, a legal presumption arises that the accused had accepted or obtained the bribe money as a motive or reward, as is contemplated by Section 161 of the Indian Penal Code. This presumption is of course rebuttable. The accused is not obliged to rebut this presumption with the same standard of proof as is required of the prosecution for recording a finding of conviction. This presumption can validly be rebutted by the appellant from the preponderance and other circumstances appearing in the prosecution evidence.

The only material witnesses examined by the prosecution are complainant Chamkaur Singh PW3 and ASI Darshan Singh PW5. The Vigilance Inspector Mela Ram, who was the main Investigating Officer in this case, could not be examined by the prosecution because he had died during the trial itself.

Chamkaur Singh PW3 is the complainant and also the bribe giver while ASI Darshan Singh PW5 is a shadow witness, assigned with the job to give a signal to the raiding party after the tainted money had been passed to the appellant by Chamkaur Singh PW3. It has been held time and again that the decoy is not an independent witness as he is naturally interested in getting the accused trapped. The position of a bribe given in such cases is no better than an accomplice and it is for this reason that his evidence needs corroboration from some independent source. The same value is to be accorded to the evidence of a shadow witness, especially when he is not proved to be an independent witness. Independent corroboration to the evidence of such witnesses is normally insisted upon by the Court, not as a rule of law but as a rule of caution and prudence.

The evidence of Chamkaur Singh PW3 and ASI Darshan Singh PW5 when tested on the touch stone of crossexamination does not depict their independent character. In the first place, there is no statisfactory evidence on record to suggest as to what conversation, if at all, took place between Chamkaur Singh PW3 and the appellant and also under what circumstances, the tainted money changed hands from Chamkaur Singh PW3 to the appellant. In his examinationinchief, Chamkaur Singh PW3 did not state a word about the demand and acceptance of tainted money by the appellant. As such, the State counsel had crossexamined this witness after having sought the necessary permission of the learned trial Court. It would be of benefit to reproduce below the statement of Chamkaur Singh PW3 as contained in his examinationinchief and the one brought in his crossexamination by the State counsel :

Examinationinchief :

"At the patwarkhana, the accused was present on a cot. I asked the Patwari to give a copy of Jamabandi and he told that it was ready. He also stated that he had to sign and put a date on it. Thereafter, he started doing some writing work and I put Rs. 70/ in his pocket. Darshan Singh then gave a signal and the police party reached there. Accused gave me copy of Jamabandi when I put the money in his pocket."

Crossexamination :

"It is correct that I stated to the police that accused demanded the amount from me and I put the money in his pocket. I had stated to police that the accused demanded money and I paid the (sic)

The bare perusal of the contents of his crossexamination, as reproduced above, would go to show that even in the said crossexamination, he did not state that the appellant had in fact demanded the bribe or that as a consequence thereto, he paid the same to the appellant. Chamkaur Singh PW3 merely stated that he had given a statement to the police as revealed in his above crossexamination. In this situation, his testimony on the point of demand and acceptance of bribe definitely creates doubt in the truth of the prosecution case, especially when, he is admittedly an interested witness in the success of the trap.

Once the evidence of decoy Chamkaur Singh PW3 is held to be not above board, it would not be safe and prudent to rely upon the evidence of ASI Darshan Singh PW5 who is not only a shadow witness but also a police official and as such, he cannot be said to be an independent witness in the circumstances in hand. This is more so because there is nothing on record to suggest as to why some independent witness could not be joined by the Vigilance Inspector to act as a shadow witness before leaving Ludhiana for the place of raid. It is not the case of the prosecution that it was on account of paucity of time that the Vigilance Inspector could not associate any independent witness before leaving Ludhiana. Further, it is also the case of the prosecution that when the raiding party left Ludhiana to lay the trap, the Vigilance Inspector had on the way joined two public witnesses; namely Dalip Singh and Bhinder Singh from village Kulhar. These two witnesses were given up by the prosecution as having been won over by the accused. However, the fact remains that there is nothing on record to suggest that if any one of these two public witnesses was at any stage assigned the task to act as a shadow witness. If that is so, then the prosecution must suffer for this lapse.

Taking into account the unsatisfactory character of the prosecution evidence, I hold that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt and the appellant becomes entitled to acquittal on that score.

Accordingly, I accept the appeal, set aside the impugned judgment of conviction and the order of sentence recorded by the trial Court and acquit the appellant of the offences charged with.