Sewak Ram vs State of Punjab

A.N. Jindal, J.—Sewak Ram accused-appellant (herein referred as ''the accused'') was prosecuted for the offence under Sections 7, 13(2) of the Prevention of Corruption Act, 1988 (herein referred as ''the Act'') allegedly for accepting illegal gratification to the tune of Rs. 1000/- for supply of copy of the jamabandi, from the complainant Mohinder Singh (herein referred as ''the complainant''). Ultimately, he was convicted vide judgment dated 30.8.2001 passed by the learned Special Judge, Ferozepur, and sentenced to undergo rigorous imprisonment for for 1- � years and to pay fine of Rs. 1000/-.

The complainant is the resident of village Jaffarwal. His brother Gurdev Singh and son Jassa Singh were murdered which led to the dispute between the complainant Mohinder Singh (herein referred as ''the complainant'') and his mother regarding inheritance of Gurdev Singh. However, 2-3 years prior to the registration of the case, his mother had also died leaving behind a Will, therefore, in order to pursue the litigation regarding inheritance of Gurdev Singh, the complainant was in need of copy of jamabandi for which he approached the accused being village Patwari, who demanded a sum of Rs. 1500/- for doing the needful. However, the bargain was settled at Rs. 1000/-. On 22.11.1996, the complainant came across Gurdial Singh and disclosed about the demand made by the accused and he expressed his intention to get the accused trapped. Consequently, both of them went to the Police Station Vigilance Bureau, Ferozepur and met Ramandeep Singh, DSP (Vigilance) near Bus Stand, Zira, where, the complainant got recorded his statement Ex.P2, on the basis of which formal FIR Ex.P16 was recorded at Police Station Vigilance Bureau, Ferozepur. The complainant handed over currency notes of Rs. 1000/- consisting of one note of Rs. 500/- and five notes of the denomination of Rs. 100/- each, on which phenolphthalein powder was applied and after recording numbers of the currency notes in the memo Ex.P3, the same were handed over to the complainant with a direction to give the same to the accused on demand. Gurdial Singh was deputed as a shadow witness who was to signal the police party. Thereafter, Ramandeep Singh DSP (Vigilance) after organizing the raiding party set for the office of the accused at Kot Ise Khan in a gypsy. On the way, he joined Joginder Singh Gram Sewak as an official witness. As planned, the police officials remained outside the office, whereas, the complainant and Gurdial Singh shadow witness approached the accused and handed over the currency notes of Rs. 1000/- to the accused on demand. On receipt of the signal Ramandeep Singh DSP along with other police officials raided the accused, called for the glass of water, wherein he mixed sodium carbonate. Joginder Singh was asked to dip and wash his hands but the colour of the water did not change, however, when the accused was made to dip and wash the hands in the said solution, then colour of the water became pink. The said solution was put into and sealed in a nip with the seal bearing impression "RS" as well as signatory slip of the official witness Joginder Singh. He took the same into possession vide recovery memo Ex.P4. Thereafter on search of the accused, currency notes to the tune of Rs. 1000/- were recovered from the pocket of the shirt of the accused. Another sum of Rs. 432/- were recovered from him which were also taken into possession through memo Ex.P16. The relevant jamabandi register was taken into possession vide memo Ex.P7. The shirt worn by the accused was also got removed and after getting some mixture of the water containing sodium carbonate, he got the hands of Joginder Singh, an independent witness, dipped but the colour of the water solution did not change. However, on dipping of the pocket of the shirt, the colour of the solution turned pink. The said solution after putting the same into nip was also taken into possession. The shirt was also packed in a sealed parcel and taken into possession vide memo Ex.P5. After completing the formalities, recording statements of the witnesses and on receipt of the report Ex.P19 of the Forensic Science Laboratory, Punjab, challan against the accused was presented in the court.

The accused was charged u/s 7, 13(2) of the Act, to which he pleaded not guilty and claimed trial.

In order to substantiate the charges, the prosecution examined MHC Sukhbir Singh (PW1) who is a formal witness. Mohinder Singh complainant (PW2) has reiterated the circumstances in which the demand of Rs. 1500/- was made and bargain was settled at Rs. 1000/-; how he approached the vigilance department and in what manner the raid was conducted as also the recovery of Rs. 1000/- was effected from the accused. Gurdial Singh (PW3) is the shadow witness who has corroborated the testimony of the complainant in all material circumstances. Joginder Singh (PW4) is an official witness and he has proved the recovery of the tainted money from the accused. Amarjit Singh Election Kanungo (PW5) has proved the sanction Ex.P12 given by Gurdev Singh Sidhu, the then Collector Ferozepur. Sardari Lal (PW6) deed writer has stated that on 10.7.1990, Sham Kaur had executed a power of attorney Ex.P13 in favour of Mohinder Singh son of Ujagar Singh which was entered at Sr. No. 335 of the register. Amrik Singh (PW7), Registration Clerk Dharamkot has also proved the power of attorney dated 10.7.1990 as executed by Sham Kaur vide which she had appointed Mohinder Singh son of Ujagar Singh (complainant) as her attorney. Jagsir Singh Naib Tehsildar, Dhuri did not support the prosecution case and denied if Jamabandi (Ex.P10) was prepared by the accused. Constable Baj Singh (PW9) and Constable Harmel Singh (PW10) are the formal witnesses, whereas, Ramandeep Singh DSP Vigilance (PW11) has explained the manner in which he conducted investigation from time to time. Basant Singh Clerk, Tehsil Office Zira (PW12) has proved the service book of the accused and further added that on 22.11.1996 the accused was serving as Halqa Patwari and he has also proved his posting order Ex.P21.

When examined u/s 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further added as under:

I am innocent. Case against me is false. After the death of Jassa Singh, land was inherited by Jit Kaur and Sham Kaur and mutation was sanctioned in their names and girdwari was entered in the name of Jit Kaur. Mohinder Singh PW wanted to get the girdawri changed in the name of Sham Kaur his mother to which I refused and told him that Tehsildar has sanctioned mutation and it will remain as it is. He became annoyed, altercated and threatened me that he would see to it and know how to get the girdawari changed.

Gurdial Singh PW is close to him and is his commission agent. Virsa Singh is father of Gurdial Singh PW who applied for the post of Lumberdar of village and Sewa Singh was appointed as Lumberdar and the application of Virsa Singh was dismissed. I being Patwari of the village had informed the Revenue Authorities that Virsa Singh is a convict u/s 307/34 IPC and is not fit to be appointed as Lumberdar. This also annoyed Gurdial Singh PW. Gurdial Singh and Mohinder Singh are influential persons and have laison with police. A day prior to the occurrence was a holiday and my office was closed. I had neither demanded nor accepted the bribe. Copy of jamabandi was already delivered to the PW. PW Mohinder Singh tried to put money in my pocket. I resisted with my hands and he had forcibly thrusted the money in my pocket and in the meanwhile DSP Vigilance came and involved me in this false and fabricated case. I will lead defence.

In defence, the accused examined Darshan Singh Patwari Halqa Behramke (DW1) who proved the entries No. 151, 152 and 153 of roznamcha Wakiati in order to show that the complainant had taken the copies of the jamabandi and khasra girdwari from the accused. However, he refused to produce the roznamcha Kar-Gujari for the year 1996-97 as it was not traceable.

The trial ended in conviction.

Arguments heard. Record perused.

The demand of illegal gratification, the receipt thereof and then recovery of the same from the accused, a public servant, to be delivered to him as a motive or reward for receiving an undue favour or due favour by illegal means is a sine qua to constitute the offence under the Act. Thus, the crucial question would be "whether the appellant had demanded any amount as gratification to show any official favour, and whether the said amount was paid by Mohinder Singh in the presence of Gurdial Singh a shadow witness, and whether the said recovery was effected by Ramandeep Singh DSP in the presence of Joginder Singh an official witness?" Once the recovery is proved, then presumption as envisaged u/s 20(1) of the Act could be attracted.

Learned Counsel for the appellant has tried to develop the case by urging that no previous demand of Rs. 1000/- stands established by the prosecution which was the prime ingredient to constitute the offence. In this regard, I need to reiterate the statement of the complainant, who while explaining as to for what purpose copy of jamabandi (Ex.P10) was required, has testified that after the accused had demanded a sum of Rs. 1000/- for supplying the copy of jamabandi, he had told him to bring the same within 2-3 days. Thereafter, he complained to DSP Ramandeep Singh in the presence of Gurdial Singh. This witness appears to be quite rustic and illiterate, aged about 70 years, therefore, though his statement is not so meticulous or articulate but cannot be treated as tutored, as, he has explained in his own words all the circumstances truthfully with regard to raising demand of Rs. 1000/- by the accused. Again, this witness has stated that on the day of raid when accompanied by Gurdial Singh, he went to the office of the accused, paid him the money on demand for supply of copy, then he (accused) after receiving the said amount put it in his pocket of the shirt. Copy of the jamabandi (Ex.P10) is purported to have been prepared by the accused on the day of raid i.e. 22.11.1996 which also proves the presence of the complainant in the office of the accused and also goes a long way to prove the prosecution version. Much stress has been laid by the learned Counsel for the appellant that copy of Jamabandi was supplied by the accused much prior to the occurrence and in this connection he has examined Darshan Singh Patwari (DW1) who has no where stated from the rapat roznamcha if the copy of the jamabandi was supplied to the accused prior to the date of raid. The relevant entry No. 152 does not bear any date of supply of the copy of jamabandi to the complainant, rather, copy of document mark-A categorically reveals that copy was prepared on the date of raid.

Another argument which also could not weigh with the mind of the court is that no question with regard to pocketing of Rs. 1000/- by the accused was put to him in his statement u/s 313 Cr.P.C., therefore, this piece of incriminating evidence cannot be read against the accused.

In this regard, it may be observed that Mohinder Singh complainant (PW2) and Gurdial Singh shadow witness (PW3), both are very categoric with regard to the fact that currency notes were given to Patwari Sewak Ram and he had put it in his pocket. Further recovery of Rs. 1000/- from the front pocket of the accused stands corroborated by Ramandeep Singh DSP (PW11). The accused has also not denied the fact that the money was not recovered from his pocket, rather he states that Mohinder Singh tried to put the money in his pocket. Thus, the non asking of the question regarding the fact that the money was put in his pocket, in his statement u/s 313 Cr.P.C. is immaterial and the prosecution case cannot be thrown away merely for not asking such specific question. The prosecution is required to put all the incriminating circumstances appearing against him which means that to put all the questions generally. The accused was asked the questions including that Mohinder Singh on demand paid Rs. 1000/- to the accused and the recovery of the tainted money was effected from his pocket of the shirt, thus, under these circumstances, no other question needed to be asked to the effect that he put the tainted money in his pocket. The object of examination of the accused u/s 313 Cr.P.C. is to give the accused an opportunity to explain the case made against him. This statement could not be taken into consideration for judging the innocence or guilt, as there is no onus on the accused to discharge. It depends on the facts and circumstances of the case if such statement discharges the onus. In the cases under the Prevention of Corruption Act, the onus to prove is objective. Once the recovery of money is established by sufficient evidence, then presumption u/s 20(1) of the Act is attracted.

The Apex Court while discussing the scope of Section 313 Cr.P.C. observed that the scope is not so narrow that each and every word as stated by the witnesses is to be put to him but as per Sub-section (1)(b) of Section 313 Cr.P.C. the court was required to ask the question generally with regard to the incriminating circumstances of the case. The Apex Court in case Ajay Singh v. State of Maharashtra 2007 (3) RCR (Cri) 348 while interpreting the word ''generally'' observed as under:

The word ''generally'' in Sub-section (1)(b) does not limit the nature of questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused''s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.

In the present case, the accused was apprised of all the incriminating circumstances appearing against him. He not only understood the evidence appearing against him but also explained as to in what manner the money came to his pocket. Thus, no further specific question that the the money was put in his pocket was required to be put to him.

While going to the worst, it may further be observed that mere defective/improper examination u/s 313 Cr.P.C. is no ground for setting aside the conviction of the accused unless it has resulted into any prejudice to the accused. Failure to comply with the provisions of this section is an irregularity; and unless injustice is shown to have resulted, mere irregularity is by itself not sufficient to justify the order of re-trial. The Appellate Court must always consider whether by reason of failure to comply with a procedural provision which does not affect the jurisdiction of the Court, the accused have been materially prejudiced. (See State (Delhi Administration) Vs. Dharampal, . In Parsuram Pandey and Others Vs. The State of Bihar, Apex Court observed as follows:

We have perused the statement u/s 313 Cr.P.C. and the question formulated by the trial Court in the present case and we may say that is far from satisfactory. This Court time and again has laid down that it is obligatory on the part of the trial Court to examine the accused for the purpose of enabling the accused personally to explain any circumstance appearing in evidence against him. If such opportunity is not afforded, the incriminating piece of evidence available in the prosecution evidence against the accused cannot be relied upon for the purpose of recording the conviction of the accused person. It is imperative on the Court to record the statement u/s 313 Cr.P.C. of the accused persons so as to give opportunity to the accused persons to explain any incriminating circumstance proved by the prosecution. The duty cast on the Court cannot be taken lightly.

In the instant case also the circumstances reflect that the accused was not in any way prejudiced by asking this circumstance when the accused was well aware of the evidence which was led against him, wherein it was specific that the accused had put the money in his pocket.

Now coming to the question of previous demand, it may be observed that both Mohinder Singh (PW2) and Gurdial Singh (PW3) are the witnesses to the previous demand made by the accused and both of them were cross examined thread bare and except for the minor discrepancies which obviously occur with the passage of time in the statements of the truthful witnesses, no such glaring contradiction has been pointed out so as to discard their testimonies altogether. When once the demand has been raised prior to the occurrence, then receipt of the money on the day of occurrence would also be tagged with the demand previously set up by him. Anyway, recovery of money has been duly established by Mohinder Singh complainant (PW2), Gurdial Singh shadow witness (PW3), Joginder Singh official witness (PW4) as well as Ramandeep Singh DSP (PW11). In such a situation, presumption u/s 20(1) of the Act would be attracted in the case. It was observed by the Apex Court in case in case The State represented by C.B.I. Hydrabad v. G. Prem Raj 2009 (4) RCR (Crl.) 927 observed as under:

It could be comprehended why a hotel was selected for doing official work. The accused failed to explain as to why hotel was selected for doing official work. Accused kept the money in bag of scooter from where the same was recovered. The fact that bag and scooter were not seized has no consequence when it was proved that money was recovered from the accused. Presumption of Section 20 was available, but High Court ignored the same. High Court, thus, has committed an error. When the amount was recovered from the accused, it was for the accused to explain as to how the amount came in his possession. Panch witnesses proved the demand and recovery from the accused. Neither the complainant nor other witness had any enmity with the accused, therefore, there was non reason for these persons to falsely implicate the respondent-accused.

In the instant case also it is duly established on the record that Mohinder Singh (PW2) needed copy of jamabandi for pursuing the case. No matter, if Gurdial Singh was known to him and he opened his heart before him so that he could avoid payment of Rs. 1000/- as he wanted to get the document in the ordinary course by making payment in routine process. Even if he was friendly, he cannot be said to be interested witness at all, as he had no bias, animus or enmity against the accused to falsely implicate him in the case. The allegations levelled by the accused that his father Virsa Singh was a convict u/s 307/34 IPC and he was not appointed as Lumberdar on the said ground, does not contribute any enmity on the part of the accused as Deputy Commissioner, is the appointing authority and not the accused and the Lumberdari is decided after hearing the claims of the rival parties. The fact with regard to conviction of Virsa Singh was to be brought to the notice of the Deputy Commissioner by Sewa Singh his rival and not by the accused. It may further be mentioned that the accused did not bring any such report on the record which he may have been made with regard to conviction of Virsa Singh in a criminal case. No motive also could be attributed to Joginder Singh Gram Sewak. He had nothing to conceal while stating that when on receiving signal they reached the room and when Deputy Superintendent of Police introduced himself to the accused, then he stood up and started begging pardon. Deputy Superintendent of Police prepared the solution in which he dipped his hands but the colour did not change, however, on wash of the hands of the accused in the said solution, the colour of the solution changed to pink and it was put in a nip, thereafter, recovery of Rs. 1000/- was effected from the front pocket of the shirt of the accused. On comparison of the serial numbers as mentioned in the memo with the tainted money, the same were found to be identical and the same were taken into possession vide memo Ex.P9. Further more, on search of the accused a sum of Rs. 432/- were also recovered. The shirt of the accused was also got removed and when it was dipped into the solution prepared by the Deputy Superintendent of Police, then the colour of the solution turned pink. The same was also taken into possession. Rapat roznamcha and copy of jamabandi (Ex.P10) were also taken into possession vide memo Ex.P7. No malice or enmity has been attributed to this witness for deposing falsely against the accused.

Thus, taking stock of the entire evidence on the record, it could well be observed that the accused demanded gratification to the tune of Rs. 1000/- and received the same for supplying him copy of jamabandi which he needed to pursue the case. Ample evidence has been led by the prosecution to prove the same. Mere fact that case registered against the accused could not succeed due to some technical defects, is hardly sufficient to hold that this case is false.

No plausible defence has been led by the accused in order to explain as to how the tainted money came to be recovered from his pocket of the shirt and also to prove if the witnesses had enmity against him to implicate him falsely in the case. Thus, the observations made by the trial court need to be confirmed.

Resultantly, finding no merit in the appeal the same is dismissed.