Sewa Singh vs State of Haryana

J.S. Sekhon, J.

Sewa Singh appellant, a Constable of Haryana Police, was tried and convicted by Shri R.P. Bajaj, Special Judge, Ambala, on a charge for offence under Section 5(2) of the Prevention of Corruption Act, 1957 and under Section 161 of the Indian Penal Code, for having accepted Rs. 30/ as illegal gratification from Banarsi Dass, complainant, for registration of the case against one Kalu. The appellant was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/ and in default of payment thereof to further suffer one month''s rigorous imprisonment of one year and to pay a fine of Rs. 200/ and in default of payment thereof to further suffer one month''s rigorous imprisonment on the first count and to one year''s rigorous imprisonment on the second count. Both the sentences were, however, ordered to run concurrently. Feeling aggrieved against the orders of conviction and sentence of the trial court, the accused has filed this appeal.

The brief resume of facts relevant for the disposal of this appeal is that Banarsi Dass, a tea vendor of Jagadhri, contacted Sewa Singh accused, who was working as Moharrar Head Constable at PolicePost City Jagadhri on 5.6.85, at about 5.00 P.M. for lodging a report against one Kalu who had allegedly beaten Banarsi Dass and his wife Mst. Shakuntla. The accused demanded Rs. 5/ as fee for recording the report. Banarsi Dass apprised the accused that he is poor person and has only Rs. 5/ with him and could not pay Rs. 50/. The accused, however, directed Banarsi Dass to arrange the money and thereafter the report would be recorded. Banarsi Dass then approached Shri Om Prakash, a local Member of Haryana Legislative Assembly, who in turn conveyed the message to Deputy Superintendent of Police, Jagadhri, Banarsi Dass, complainant, then went to the office of Deputy Superintendent and narrated the entire episode. The Deputy Superintendent recorded the statement Exhibit P A. of Banarsi Dass and took a currency note of the denomination of Rs. 5/ from the wife of Banarsi Dass and Rs. 25/ from his own Reader, noted the numbers of the currency notes in the seizure memo and directed the complainant to contact the accused and hand over this amount to him on demand while expressing his inability to arrange for more money. Sahab Singh (PW5) was directed to accompany the complainant as a shadow witness. Banarsi Dass complainant alongwith his wife Shakuntla Devi and Sahab Singh (PW5) then contacted the accused in the police post. The accused took Rs. 30/ as illegal gratification from Banarsi Dass and kept the same in the register. The accused also informed Banarsi Dass that his report has been recorded and that Kalu would be arrested soon. Thereafter all these persons came out of the police post and gave the signal to Har Kishan Lal (PW7). Deputy Superintendent of Police, who then rushed to the Police Post along with the above referred witnesses and enquired from the accused whether he had taken money from Banarsi Dass. The accused denied having received any money. A register was found lying on the table. The Deputy Superintendent then searched the register but the currency notes were not traceable. He then asked his Reader to conduct a search of the accused, which yielded the recovery of Rs. 30/ from his shirt. The numbers of these currency notes tallied with the numbers in the seizure memo. The currency notes were taken into possession. The bushirt of the accused was also seized. The rough site plan of the place of recovery. Exhibit PN, was also prepared besides recording the statements of the witnesses. The investigation of this case was thereafter taken over by Shri Dharam Pal, Additional Superintendent of Police, Ambala. After completion of investigation and obtaining the sanction Exhibit PD about the prosecution of the accused, he was arraigned for trial on such like allegations by submitting a chargesheet before the Special Judge, Ambala.

During the trial before the Special Judge, the prosecution examined Banarsi Dass (P.4) and Sahab Singh (PW5) as witnesses to the actual incident of having offered the money to the accused besides examining the investigation and other witnesses. The version of the accused before the trial Court in his statement recorded under Section 313 of the Code of Criminal Procedure was that of simple denial and false implication contending that on 4.5.85, Banarsi Dass had come to the Police Post at about 8.00 P.M. and wanted to lodge a report against Kalv alleging that the latter had beaten him and his wife after taking liquor. The accused then examined the person of Banarsi Dass but there was no injury. Banarsi Dass however, insisted on calling Kalu to the Police Post and insulting the latter but the accused apprised Banarsi Dass that he would record his report and take action permissible under the law. Banarsi Dass did not want to lodge the report and wanted that strict action be taken against Kalu. Banarsi Dass offered to spend Rs. 50/ in this regard but the accused declined this offer. Thereafter, Banarsi Dass left the Police Post saying that he would get the work done through the intervention of local Member of the Legislative Assembly. The accused further stated that nobody had contacted him on 5.6.85 till 12.30 P.M. when Baldev Raj, Reader to the Deputy Superintendent of Police accompanied by Banarsi Dass and others summoned him from the Police Post saying that he was wanted by the Deputy Superintendent. He accompanied the said persons to the office of the Deputy Superintendent. The accused was made to sit there for pretty long time. His bushirt lying in the Police Post was also brought. The Deputy Superintendent of Police made enquiries from the accused whether he had taken any bribe from Banarsi Dass but the accused denied this fact. Later on, the accused, as per his version was falsely implicated in this case at the intervention of local Member of Legislative Assembly. In support of his above referred version, the accused examined Balbir Singh Constable, as DW 1.

The trial Court believing the ocular evidence of Banarsi Dass and shadow witness Sahab Singh copied with the corroborative evidence of the recovery of the marked currency notes from the possession of the accused, convicted and sentenced the accused as referred to above. The defence version did not find favour with the trial Court.

I have heard the learned counsel for the parties besides perusing the record.

No doubt, Sahab Singh (PW3) had supported the version of Banarsi Dass, complainant, (PW4) that the latter had handed over Rs. 30/ in his presence to Sewa Singh accused as illegal gratification for recording the report against one Kalu, yet all the same this version being inherently improbable, there is no escape but to discard it.

The act of giving or receiving bribe is done in a secretive manner. It is not acceptable that the accused would accept the bribe from Banarsi Dass in the presence of Sahab Singh and Mst. Shakuntala, the wife of the complainant especially when Banarsi Dass had left the Police Post by threatening the accused that he would meet the Member of Legislative Assembly. Thus in view of this inherent improbability in the version of these two witnesses, the nonsprinkling of currency notes with phenolphtalein powder assumes importance and renders the investigation conducted by Deputy Superintendent as tainted. Had the Deputy Superintendent taken the usual prosecution of sprinkling the phenophtalein powder on the currency notes, it would have been a corroborative evidence of immense value because the Deputy Superintendent of the accused or register of the accused would have got smeared with this powder, if at all he had taken the currency notes and kept these there. This conclusion is further fortified from the factum that Har Krishan Lal, Deputy Superintendent of Police, had not arrested the accused just after the alleged recovery of currency notes from his possession, which provides an oblique inkling that the incident had not happened in the manner as alleged by the witnesses. On the other hand, the possibility cannot be ruled out that under the influence of local Member of Legislative Assembly, the Deputy Superintendent of Police, had called the accused to the office and had got the case registered for the above referred offences on the well founded or misfounded suspicion. The explanation given by the Deputy Superintendent of Police that he had not arrested the accused at the time of alleged recovery as the latter had tainted and many members of the police force had assembled there is not acceptable because he had failed to record this fact in the case diary. Thus this explanation being after thought is not acceptable. The factum that the Deputy Superintendent of Police had not himself searched the person of the accused but directed his reader to do so is also one of the circumstances to conclude that probably the Deputy Superintendent of Police was not satisfied with the set up version about the recovery of currency notes from the pocket of the bushirt of the accused.

For the reasons recorded above, the impugned orders of conviction and sentence of the trial Court being not sustainable are hereby set aside by accepting this appeal and acquitting the accused. It is ordered accordingly. The fine, if paid, shall be refunded. The personal and surety Bonds of the accused stand discharged.

JUDGMENT accordingly.