Sarwan Singh vs State of Punjab

K.C. Gupta, J.

This appeal has been instituted by Sarwan Singh against judgment and order dated 5.1.1995 passed by Special Judge, Kapurthala, whereby he was found guilty and convicted under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (for short, "the Act"), and sentenced to RI for two years and a fine of Rs 500/; in default of payment of fine to further undergo RI for one month under Section 7 of the Act; 2 years RI and a fine of Rs. 500/ and in default of payment of fine to further undergo RI for one month under Section 13(2) of the Act. However, both the sentences were ordered to run concurrently.

Briefly stated, the facts are that on 21.3.1994, the appellant, Sarwan Singh, was posted as Revenue Patwari in Village Khiranwali. PW2 Bawa Singh, Lambardar, resident of Village Khera Bet had opened an account in Punjab and Sind Bank, Surakhpur, District Kapurthala, in order to enhance the limit of fertilizer loan and as per instructions of the bank authorities, he was to mortgage 8 kanals of land. For this purpose, he was required by the Manager of the Bank to produce copies of Khasra Girdawaris of land measuring 40 Kanals, including 8 Kanals of land under his ownership showing his cultivation.

On 21.3.1994, PW2 Bawa Singh met the appellant in his office at Kapurthala and told him to prepare the copies of the Khasra Girdawaris. However, the appellant demanded Rs. 700/ as illegal gratification for supplying copies of the Khasra Girdawaris. PW2 Bawa Singh expressed his inability to pay Rs. 700/ and ultimately, the deal was struck at Rs. 500/ and Bawa Singh promised to pay the said amount of 22.3.1994.

In fact, PW2 Bawa Singh did not want to pay the amount, so, he decided to approach the Vigilance Department. For this purpose, he was going to Kapurthala on 22.3.1994 and near Police State Kotwali, PW4 Sukhwinder Singh met him. He took Sukhwinder Singh alongwith him and went to the office of DSP, Vigilance, Kapurthala, and told the whole occurrence to him. PW2 Bawa Singh handed over five currency notes of the denomination of Rs. 100/ each to DSP Amrik Singh, who, in turn recorded the statement of PW2 Bawa Singh, Ex. PD. PW5 DSP Amrik Singh noted down the numbers of currency notes in a memo and handed over the same to Bawa Singh after applying phenolphthelein powder. He directed PW2 Bawa Singh to hand over the said amount to the appellant on demand. PW4 Sukhwinder Singh was detailed to accompany Bawa Singh to the office of the appellant and to give signal to the police party by raising his hand on the head after the deal was struck. PW5 DSP Amrik Singh also gave demonstration about the effectiveness of the phenolphthelein powder. He got arranged a glass of water, mixed therein carbonate and the colour of the water did not change. Thereafter, he applied phenolphthelein powder on a piece of paper and dipped the same into the glass and the colour of water became light pink. The said solution was thrown out.

PW5 Amrik Singh, DSP made endorsement on the statement of PW2 Bawa Singh and sent it to the Police State Kotwali for registration of the case, on the basis of which formal FIR, Ex.PD/2 was recorded. Thereafter the DSP summoned PW3 Vishva Nath, Junior Engineer, of the office of Executive Engineer, Kapurthala, and joined him in the raiding party. They all went in a jeep towards the office of the appellant. Bawa Singh and Sukhwinder Singh were dropped near the office of the appellant. On demand by the appellant, PW2 Bawa Singh handed over the five tainted currency notes, which he put into the pocket of his bushirt.

Upon receipt of the arranged signal from PW4 Sukhwinder Singh, DSP accompanied by Vishva Nath and other police officials went to the spot. The DSP disclosed his identity and secured the appellant. A glass of water was arranged and sodium carbonate powder was put into it and the colour of the water did not change. Then the appellant was asked to dip his hands in the solution and the colour of the water became light pink. The said solution was transferred into a nip, which was sealed by the DSP with his seal `AS'' and was taken into possession vide memo Ex.PC attested by the witnesses.

PW5 DSP Amrik Singh took the search of the appellant and from the front pocket of the bushirt of the appellant, currency notes, Exs.P1 to P5 were recovered. The numbers of the notes were tallied with the numbers noted down in the memo. The same were taken into possession vide memo Ex.PH. The bu shirt of the appellant was got removed and it was again put in the solution of water and sodium carbonate and the colour of the solution became light pink. That solution was collected in another nip and was sealed with the seal of `AS''. Bushirt, Ex.P6, was made into a sealed parcel and was taken into possession vide memo Ex.PK attested by the witnesses.

On further search of the appellant, a purse containing cash amount of Rs. 350/, an identity card and wrist watch were recovered, which were taken into possession vide memo Ex.PJ, attested by the witnesses. PW2 Bawa Singh produced copy of Khasra Girdawari, Ex.PR, before the DSP, which was also taken into possession. PW5 DSP Amrik Singh prepared rough site plan, Ex.PS of the place of occurrence with correct marginal notes. He recorded the statements of the witnesses. Both the nips with seals intact and other case property were deposited with Sukhdev Singh MHC. The appellant was arrested and after obtaining necessary sanction from the District Collector, Kapurthala, he was prosecuted.

On presenting the challan, the appellant was charged under Section 7 read with Section 13(2) of the Act, to which he pleaded not guilty and claimed trial.

In order to prove the allegations, the prosecution examined 5 witnesses and also tendered in evidence report of the Director, Forensic Science Laboratory, Ex.PT, affidavits of Sukhdev Singh, MHC and Malkiat Singh Constable, Ex.PY and Ex.PV respectively.

After the closure of the prosecution evidence, the statement of the appellant was recorded under Section 313 Cr.P.C., wherein he denied the allegations of the prosecution and pleaded false implication. He next stated that PW2 Bawa Singh belonged to his village and was member of the party opposite to him. The date of his marriage had been fixed which was to be solemnized after about ten days of the alleged occurrence and got him involved in a false case, so that he could not solemnize the marriage.

In defence, he examined DW1 Gulzar Singh, Patwari, DW2 Darshan Singh, DW3 Amarjit Singh, Inspector, Food and Supplies and DW4 Swaran Singh son of Dalip Singh, Sarpanch of Village Khera Bet.

DW1 Gulzar Singh stated that he and the appellant used to sit together in the same office and on 22.3.1994, he had issued copy of the Jamabandi and copies of the entries of Khasra Girdawari in favour of Darshan and no copy of issued to Bawa Singh on that day. DW2 Darshan Singh also stated that on 22.3 1994 he had approached the Revenue Patwari of his Halqa to obtain copy of the Jamabandi and the appellant was also present there. He further stated that the police officials had forcibly tried to thrust money in the pocket of the appellant and he did not demand any money from anybody. DW3 Amarjit Singh, Inspector, stated that PW2 Bawa Singh belonged to Village Khiranwali and on the application of Bawa Singh he had issued Ration Card on 30.7.1991. DW4 Swaran Singh, Sarpanch of Village Khera Bet stated that PW2 Bawa Singh of village Khiranwali was known to him and he did not reside in his village.

After hearing learned PP for the State and the defence counsel, the appellant was found guilty vide judgment dated 5.1.1995 by the Special Judge, Kapurthala, and sentenced him vide order of even date as stated in the earlier part of the judgement.

Aggrieved by the said judgement and order, the accused has filed the present appeal.

I have heard Mr. H.S. Gill, Sr. Advocate with Mr. Hari Chand, counsel for the appellant, Mr. Prem Kumar, DAG, Punjab, counsel for the respondent and carefully gone through the record.

PW4 Sukhwinder Singh, shadow witness, has not supported the prosecution version. He was declared hostile but the learned PP could not get anything beneficial out of his crossexamination. In crossexamination, he admitted that Bawa Singh did not hand over the tainted notes to the appellant in his presence and when the DSP had entered in the office of the appellant, then 67 more persons were present there. Thus, according to him, there is no evidence that the appellant had demanded the bribe money as a consideration for supplying copy of the Khasra Girdawari and on his demand, PW2 Bawa Singh had handed over currency notes of Rs. 500/. Moreover, he stated that he did not know PW2 Bawa Singh. Even PW2 Bawa Singh had also stated in his statement that he did not know PW4 Sukhwinder Singh. It is difficult to believe that when PW2 Bawa Singh and PW4 Sukhwinder Singh are nto known to each other, then how PW2 Bawa Singh requested PW4 Sukhwinder Singh to accompany him to the office of DSP, Vigilance, for the purpose of conducting raid upon the appellant. This shows that PW4 Sukhwinder Singh was not detailed as a shadow witness and he is a procured witness.

Now we are left with the testimony of PW2 Bawa Singh. Of course, he stated that the appellant had demanded bribe money of Rs 500/ and he handed over the same to him, to which phenolphthelein powder was applied and the appellant put those notes in the pocket of his bushirt. It was further admitted that some persons, including Patwaris, were present at that time. DW2 Darshan Singh stated that he was present on 22.3.1994 in the office of the appellant as he was to obtain a copy of the Jamabandi from DW1 Gulzar Singh, Patwari and at that time, the DSP and other police officials had conducted raid and they grappled with the appellant and tried to thrust money in his pocket. He further stated that the appellant did not demand any bribe money from any one in his presence. He next state that the appellant was arrested by the police and was taken away.

Otherwise also, the story, as propounded by PW2 Bawa Singh, is not believable. In the opening lines of his statement, he stated that he was Lambardar of the village and the appellant was posted as Revenue Halqa Patwari and he was to obtain loan from Punjab and Sind Bank, Surakhpur, to enhance the limit of fertilizer and the bank authorities required him to produce copy of Khasra Girdawari of his land. He admitted in his crossexamination that he had not opened any account in the bank, although he had stated in his police statement that he had already opened the account in the bank. He was duly confronted with his police statement. So, there is no question of obtaining any loan when he had not opened any account in the bank. Admittedly, no person of the locality was called by the DSP.

Counsel for the appellant contended that there is no independent corroboration regarding the factum of demand and acceptance of bribe by the appellant and as such, the appellant is entitled to acquittal. For this contention, he placed reliance upon two authorities of this Court i.e. Gurcharan Singh v. State of Haryana, 1993(3) Recent Criminal Reports 450 and Dharam Pal v. State of Haryana, 1998(2) RCR(Criminal) 295. It was also observed in Dharam Pal''s case (supra) that giver of bribe is normally to be treated as accomplice and before recording conviction of accused, independent corroboration to the testimony of all the accomplices i.e. complainant, shadow witnesses is normally sought for. In the present case, PW2 has categorically stated that the DSP and other officials had tried to thrust money into the pocket of the appellant forcibly. It is true that according to the statement of PW3 Vishva Nath and PW5 DSP Amrit Singh and further PW2 Bawa Singh, it is proved that currency notes of the denominations of Rs. 100/ each (Rs. 500/ in total) were recovered from the pocket of the bushirt of the appellant but mere recovery of the money is not enough because there is no independent corroboration to the fact that the appellant had demanded money. It has been observed by the Hon''ble Apex Court in Subash Parbat Sovane v. State of Gujarat, JT 2002(4) SC 348 : 2003(2) RCR(Cr.) 541 (SC) that absence of demand and acceptance, the appellant (accused) cannot be held guilty under Section 13(1)(d) of the Prevention of Corruption Act.

There is other aspect of the matter. Admittedly, PW5 DSP Amrik Singh did not check whether there was any entry in the register for the supply of the copy of the Khasra Girdawari, Ex.PR, to the appellant. He even did not take into possession the register regarding supply of copies. So, it cannot be said that any copy was supplied to the appellant at that time.

In view of the discussion above, I hold that the prosecution has not been able to bring home guilt to the appellant beyond reasonable shadow of doubt. Consequently, the appeal is accepted and the appellant is acquitted of the charges levelled against him by giving him benefit of doubt.