Joginder Kumar Sood vs State of Punjab

H.S. Rai, J.

Joginder Kumar Sood, Sectional Supervisor (Construction) Office of D. E.T (P & T) Patiala, was convicted, by the Special Judge, Patiala under section 5(i)(d) read with section 5(2) of the Prevention of Corruption Act and section 161 of Indian Penal Code. He was sentenced to two years rigorous imprisonment and a fine of Rs. 2000/ and in default of payment of fine further rigorous imprisonment for four months under section 5(2) of the Prevention of Corruption Act, and one year rigorous imprisonment under section 161 of Indian Penal Code. Feeling aggrieved, he has filed this appeal.

The prosecution case is that appellant was Head Clerk construction branch in the office of Divisional Engineer Telegraph at Patiala in July, 1983. Shri Karnail Singh PW was working as Office Assistant in the said office. Karnail Singh applied for three days earned leave from 1.8.1983 to 13.8.1983 as he was to attend an Akhand Path ceremony.

Shri Karam Chand, Section Supervisor recommended his leave on 25.7.1983, but the appellant raised objection and ordered that his previous leave be linked. Section Supervisor again recommended his leave vide noting dated 25.7.1983 stating that the previous leave applications were also pending as the dealing assistant is on sick leave, but as the leave applied is due. so it is recommended. Karnail Singh approached the appellant on 26.7.1983 and requested, him to recommend his leave. The appellant demanded Rs. 35/ i.e. cost of one bottle of liquor as illegal gratification for granting the leave. Karnail Singh was not willing to pay the bribe, but he pretended that he will pay the following day.

Karnail Singh, on 2771983, went to Vigilance Office, Patiala and apprised Inspector Bhajan Singh of the whole incident. Inspector Bhajan Singh recorded statement of Karnail Singh. Rajinder Singh PW was also present at that time. Three currency notes of the denomination of Rs. 20/, 10/ and 5/ produced by Karnail Singh were treated with phenolphthalein powder and after treatment were handed over to Karnail Singh after noting down their numbers. Inspector Bhajan Singh of Vigilance Department instructed Karnail Singh complainant PW to hand over the currency notes on demand to the appellant and Rajinder Singh was directed to be the shadow witness. Rajinder Singh was further directed that he should stay at a close by distance and give a signal to the police party. The police party left for the office of the appellant accompanied by Karnail Singh and Rajinder Singh.

Karnail Singh Rajinder Singh entered the office room of the appellant at about 2.20 P.M. and set on chairs. Bhajan Singh and other police officers waited outside. Karnail Singh enquired from the appellant about his leave. On this appellant demanded Rs. 35/ Karnail Singh handed over the currency notes to the appellant who put them in the front left pocket of his bushirt and promised that he would recommend his leave. Rajinder Singh came out of the room and gave the appointed signal. Inspector Bhajan Singh and other members of the raiding party entered the room where appellant was sitting. In the meantime Ayub Khan PW and P.S. Seth was summoned as he was working as P.A. to D.E.T in those days. Appellant was searched by Inspector Bhajan Singh and three currency notes of the denomination of Rs. 100/ each, two or Rs. 20/ each, three of Rs. 10/ each and one of Rs. 5/ were recovered from his person. Out of them, two currency notes of Rs. 20/ each and one of Rs. 5/ were recovered from the left front pocket of the bushirt of the appellant. The numbers of the currency notes recovered from the said pocket were compared and they tallied.

After necessary investigation, the appellant was challaned, tried and convicted as mentioned in the earlier part of this judgment.

In support of its case prosecution examined PW1 Shri Karnail Singh, who supported the prosecution version and stated that as the appellant was not recommending his leave application he had promised to pay Rs. 35/ and had paid the same as bribe to the appellant in his room. PW2 Shri Ayub Khan did not support the prosecution case and stated that no currency notes were recovered from the possession of the appellant in his presence. He was declared hostile, but nothing worth while came in his crossexamination. PW3 Shri Gurbaj Singh is a formal witness. PW4 ASI Bant Rai had stated that he was incharge of the Malkhana and case property was deposited with him. PW5 Shri K.C. Bhagat Assistant Director Telecommunications has proved the sanction Exhibit P5/A. PW6 Shri Vasdev had produced certain documents before the investigating agency. PW7 Shri Baljit Singh had produced the leave application of Karnail Singh. PW8 Shri Karam Chand has stated about the posting of the appellant. PW9 Shri Amrik Singh, office assitant, has also deposed about the leave of Karnail Singh PW. PW 10 Shri Rajinder Singh, a shadow witness, did not support the prosecution case and was declared hostile and crossexamined by the Public Prosecutor. PW 11 Shri S.P. Seth also did not support the prosecution case and was declared hostile and was crossexamined by Public Prosecutor. PW 12 Jasbir Singh constable is a formal witness. PW 13 Bhajan Singh inspector and PW 15 Gurcharan Singh inspector are the investigating officers. PW 14 Gurdeep Singh constable is also a formal witness.

After close of the prosecution case, the appellant was examined under section 313 of Criminal Procedure Code. He denied the prosecution allegations and pleaded as under :

"Karnail Singh worked under me in my section from the year 1981 to 1983. He was to appear in LLB Examination. For this purpose, he had been making frequent applications for the great of leave against rules and directions. In my capacity as Section Supervisor (Construction) I used to raise lawful objections on the said applications. He felt it seriously. Further I was allotted a quarter in Shahi Samadha, Patiala and after obtaining permission from the competent authority, I had shared a portion of the quarter with Shri Shashi Bhushan, Clerk. Some rooms were in my possession and Shri Karnail Singh had been requesting me to give one room out of the said accommodation as he required the same for entraining guests and friends and for study purpose. But, I refused to oblige him and therefore he entertained grudge against me. On 27.7.1983 at about 3.00 P.M. I was sitting in my Section and about eight staff members of the Section were also present there. At that time Shri Bhajan Singh, Vigilance Inspector alongwith three or four other persons entered my office room and shook his hands with me and then took a seat in front of me. The other members stood around my table as no other, chair was available. Bhajan Singh Inspector then gave its own introduction to me and directed me to stand up and raise my hands. I felt beffled and stood up. In the meantime, Bhajan Singh Inspector and his companions caught hold of me and forcibly removed my bushirt which contained approximately Rs. 340/. They then took the burshirt aside and in the meantime many people gathered and utter chaos prevailed and I felt humiliated. About ten minutes, a nurse containing Rs. 2200/ was also taken from my possession from the back pocket of my pant and then I was arrested and taken to P.S. Civil Lines, Patiala. The file containing, leave application was produced by Karnail Singh PW from his own table and it was never recovered from my rack. I am innocent. What to talk of drinking, I do not even smoke".

He examined Harmohinder Singh DW 1. Raghbir Singh DW 2, Surinder Singh DW3 besides tendering copies of the judgments Exhibits DX, DY and DZ in his defence.

I have heard learned counsel for the parties and gone through the evidence.

The learned trial Court has based the conviction of the appellant on the testimony of Karnail Singh alone as the other two recovery witnesses Rajinder Singh and S. P. Seth PWs have not supported the prosecution case,

After careful consideration of the prosecution case, I am of the view that the prosecution has not been able to establish its case beyond reasonable doubt. The prosecution is depending upon the testimony of Karnail Singh alone. It is well established that conviction can be based on the testimony of solitary witness, but the testimony of that witness must be trust worthy and there should not be any circumstance present, which may suggest that lie may not, be narrating the whole truth. In this case, Karnail Singh PW and the appellant were working in the same office. According to Karnail Singh the appellant was putting obstacles in the sanction of the leave. Normally it will be expected of Karnail Singh that he would try to persuade the appellant not to obstruct the sanction of the leave or if the appellant does not adopt reasonable attitude he will bring the matter to the notice of higher authorities, but it is admitted by Karnail Singh that he did not inform any higher officer about the conduct of the appellant.

According to Karnail Singh, Rajinder Singh and Ayub Khan were not known to him earlier, but it is proved on the file that they had studied together and they knew each other very well. The reasoning by the trial Court that Karnail Singh might not have told the truth on this score, but that cannot be the ground for discarding his testimony may be justified in normal circumstances, that is, when the witnesses testimony is corroborated by other circumstances, but when in a case the conviction of the accused is dependent upon the testimony of a solitary witness, this reasoning will not be applicable in that case. If the solitary witness, is not found to be trustworthy in certain aspects of the case, it will not be safe to base conviction on his evidence along on the ground that he can be trustworthy in other circumstances. When Karnail Singh has concealed the fact that the other PWs were his friends and has tried to make them independent, and has been found to be not stating the truth, there must be some corroboration to his testimony if conviction is to be based on his statement.

According to Karnail Singh the demand was made one day earlier, but again, apart from his solitary statement, there is no corroboration of demand. Admittedly, recovery of the currency notes from the appellant, according to the prosecution, was made in the presence of Rajinder Singh, Ayub Khan and S. P. Seth, but all the 3 were declared hostile as they did not support the prosecution case. It is in prosecution evidence that a large number of officials working in the office of the appellant had gathered, If, in fact, recovery had been effected from the appellant, there is no reason why nobody from that building (office) supported that. Moreover, although there is nothing concrete establishing enmity between Karnail Singh and appellant, but a reading of statement of Karnail Singh clearly gives the impression that relations between them were not cordial as the attitude of the appellant had been obstructive earlier wherever Karnail Singh had applied for leave. Karnail Singh might have been offended with the appellant as he might be having the impression that appellant always obstructs sanction of his leave. In such a situation to base conviction of the appellant on the solitary statement of Karnail Singh will not be justified. The testimony of other PWs casts a shadow of doubt on the veracity of Karnail Singh.

As far as corroboration from the statement of Bhajan Singh investigating officer is concerned, his testimony suffers from inherent infirmity, i.e. he is investigating officer. His testimony will not provide the required corroboration to the statement of Karnail Singh. The judgement Exhibits DX, DY and DZ show that the manner in which Bhajan Singh PW had been conducting investigations in corruption cases has not been appreciated.

Taking an over all view of the matter, I am of the view that the prosecution has not been able to prove its case beyond reasonable shadow of doubt against the appellant. Consequently, his conviction and sentence under section 5(i)(d) read with section 5(2) of the Prevention of Corruption Act and section 161 of IPC, is set aside, and he is acquitted of the charges framed against him.

JUDGMENT accordingly