Sucha Singh vs State of Punjab

A.N. Jindal, J.—The accused-appellant Head Constable Sucha Singh was slapped with sentence of 6 months and to pay a fine of Rs. 1,000/- for the offence u/s 7 of the Prevention of Corruption Act and to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 2,000/- for the offence u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, (herein referred as ''the Act'') for allegedly receiving illegal gratification to the tune of Rs. 200/- vide judgment dated 24.01.2005, passed by Special Judge, Patiala.

Though, Mukesh Taneja-complainant (herein referred as ''the complainant'') was not trusted by the prosecution qua some aspects of the case and he was declared hostile; the official witness i.e. PW5 Gurjit Singh and PW2 Dr. Jagmohan Singh did not support the prosecution case on material aspects and PW10 DSP Banarsi Dass, Investigating Officer, was found to be inimical against the accused yet the accused had to face the conviction.

Factual background of the case is that accused Sucha Singh was working as Mohrir Head Constable at Police Station Kasturba. The complainant had lost his driving licence, therefore, on 07.01.2003, he had gone to lodge the DDR in this regard but the accused told him to bring the affidavit on a stamp paper and he went with the same on 11.01.2003. Accordingly, the accused recorded the DDR. Consequently, the complainant asked him to deliver a copy of the DDR but the accused demanded a sum of Rs. 500/- for doing the needful. Since the complainant was not having ready money, therefore, he returned. On 15.06.2003, he met his friend Gurjit Singh with whose intervention, the amount was settled at Rs. 200/-. Since the complainant did not want to pay the gratification, therefore, on 16.01.2003, he met the DSP Banarsi Dass in the office of Vigilance Bureau, Patiala, and got recorded his statement Ex.PW4/A against the accused. He handed over two currency notes of the denomination of Rs. 100/- each to DSP Banarsi Dass, who treated the same with phenolphthalein powder and then handed over the same to the complainant, after recording the number of the said currency notes vide memo Ex.PB. He had further directed the complainant to pay currency notes to the accused on demand. Gurjit Singh was deputed to act as shadow witness whereas Dr. Jagmohan Singh, Veterinary Hospital, Patiala and Dilbag Rai, Cattle Catcher, Animal Husbandry Department, Patiala, were joined as official witnesses. DSP Banarsi Dass, before departing for raid, had also made a demonstration with regard to the use of phenolphthalein powder. He raided the Police Station Kasturba and sent the complainant alongwith Gurjit Singh shadow witness to the accused. The complainant, on demand made by the accused, handed over him the bribe money and the accused put the same in the drawer of the table. Thereafter, on the signal of the shadow witness, the raiding party entered the room of the accused and found him sitting in the chair. A glass of water was brought and sodium carbonate was put in the said glass of water but its colour did not change. Thereafter, hands of the accused were dipped in that glass of water and the colour of the water got changed to light pink. The said solution was put in the nip and was sealed with the seal of the DSP bearing impression "BD" which was taken into possession vide memo Ex.PF. The seizure memo of the currency notes was also prepared. On personal search of the accused, currency notes worth Rs. 620/- were recovered which were taken into possession vide memo Ex.PF. Photocopy of the DDR got recorded by the complainant, was taken into possession vide memo Ex.PH. The affidavit of complainant was taken into possession vide memo Ex.PG. The accused was arrested. After receipt of the report of the chemical examiner and getting sanction for prosecution, challan was presented against the accused.

The accused was charge-sheeted u/s 7, 13(1) read with Section 13(2) of the Act to which he pleaded not guilty and claimed trial.

To substantiate the charges, the prosecution examined Constable Rulda Singh (PW1), Dr. Jagmohan Singh (PW2), Dilbagh Rai (PW3) Mukesh Taneja-complainant (PW4), Gurjit Singh (PW5) Head Constable Gurbhej Singh (PW6), Head Constable Inderjit Singh (PW7), Roshan Lal (PW8), Harwinder Singh (PW9), DSP Banarsi Dass (PW10).

When examined u/s 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication. He further explained that he was involved in the case by DSP Banarsi Dass, Investigating Officer, on account of his personal enmity with him as he had refused to conduct inquiry regarding passport of his nephew and did not make a report favourable to him.

In defence, the accused examined Head Constable Satnam Singh (DW1), Gurdial Kamlani (DW2), ASI Pawan Kumar (DW3), Jarnail Singh (PW4), Inspector Balwinder Singh (PW5), Constable Joginder Singh (PW6), DSP Joginder Singh (PW7) and Rajinder Singh (PW8).

On scrutiny of the evidence, the trial Court decided against the accused while convicting and sentencing him accordingly.

Arguments heard. Record perused. The cause of demand of bribe by the accused from the complainant was not recording of the DDR with regard to loss of the driving licence but was the non-supply of the copy thereof. The accused had allegedly recorded the DDR No. 7 dated 06.01.2003 without making any demand but the alleged demand was made when complainant had gone on 11.01.2003 for seeking the copy of the same. DW8 Constable Rajinder Singh, while appearing in the witness box, has stated that Ex.DW8/A is the true photocopy of the DDR. It has also come in evidence that copy of the DDR was supplied to the accused under his signatures on 11.01.2003 itself. PW4 Mukesh Taneja-complainant has also admitted his signatures with regard to the supply of the copy of the DDR to him on 11.01.2003. If it was so then no question with regard to payment of money for supplying copy of DDR arises and there was no occasion with the complainant to go to the police station to ask for copy of the DDR when the same has already been supplied to him. The witnesses, examined by the prosecution to prove the demand of bribe is only the complainant or Gurjit Singh (PW5). Gurjit Singh (PW5), though admittedly was the friend of complainant, had no courage to support the allegations, obviously for the reasons that the same may not be correct.

Now coming to the testimony of the complainant with regard to demand, cannot be believed: firstly, for want of no corroboration, secondly; for the reasons that since he has already been supplied the copy of the DDR, there was no occasion for him to go again to the police station to place the demand for the same.

The Apex Court in case State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede 2009 (4) R.C.R. (Criminal) 217 while defining the duties of prosecution as well as the accused in a corruption case observed as under:

Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.

Now putting the case on the touchstone of the observations made by the Hon''ble Apex Court, it may be observed that though the prosecution nominated Mukesh Taneja, as complainant, Gurjit Singh as shadow witness, Dilbagh Rai and Dr. Jagmohan Singh as official witnesses, and DSP Banarasi Dass was the Investigating Officer yet out of them Gurjit Singh, who was a witness to the demand and acceptance at the first hand, did not support the prosecution case. Now coming to the testimony of Jagmohan Singh (PW2), he is a Doctor, Veterinary Hospital, Patiala. Conduct of Investigating Officer is doubted qua associating Jagmohan Singh as well as Dilbagh Rai, Cattle Catcher in Animal Husbandry Department, Patiala, in the raiding party, as Patiala, being a Divisional Head Quarter, is replete with hundreds of offices but none of the executive officers was joined from there and it is not known, as to why he selected a veterinary doctor as well as cattle catcher from Patiala and no witness was joined from Rajpura where the raid was conducted. Jagmohan Singh (PW2) did not testify, if he had seen any money in the hands of the accused. He had also not stated if the accused had accepted the bribe money in his presence. However, he has stated that during search, no tainted currency notes were recovered from the pocket of Sucha Singh accused. However, the bribe money was recovered from beneath and on the left side of the table. He further stated that the tainted currency notes were not recovered from the person of accused. However, noise was raised that tainted currency notes were recovered. Besides the fact that he has also refused to identify the solution in the nip, he has also refused to accept the prosecution version with regard to demand, acceptance and recovery of money from the possession of the accused. Similar is the statement of Dilbagh Rai, cattle catcher, Animal Husbandry Department, Patiala (PW3). Since he had also refused to support the prosecution case, he was declared hostile. On appreciation of his statement, nothing fruitful could be elicited which may be helpful for the prosecution for establishing all the three ingredients constituting the offence i.e. the demand, acceptance and recovery of the bribe money from the accused. Complainant Mukesh Taneja was also declared hostile by the prosecution. In the aforesaid circumstances and in view of the admission made by the complainant that accused had also raised noise that the tainted currency notes had been thrown by him under the table, goes a long way to rebut the presumption as envisaged u/s 20 of the Prevention of Corruption Act.

Though, learned Counsel for the appellant-accused has stressed much about the statements of Jagmohan Singh (PW2) and Dilbagh Rai (PW3) before DSP Joginder Singh appointed by Punjab State Human Rights Commission, for holding the inquiry where they denied having received any illegal gratification by the accused yet the said statements being made before the police officer, being not on oath, and made during inquiry could not be treated as previous statement for confronting the witnesses with their statements in the Court. In anyway, leaving their statements made before D.S.P. Joginder Singh, yet, it would be suffice to say that the witnesses Jagmohan Singh (PW2) and Dilbagh Rai (PW3) have not supported the prosecution case obviously for the reasons that DSP Banarasi Dass (PW10) had a motive to implicate the accused in the false case for the reason that the accused refused to oblige him by making false report on the application made by his nephew regarding his residence in Punjab. I have been taken through the DDR Ex.DW1/A dated 06.01.2003, recorded by Sucha Singh accused on the basis of telephonic information. English translation of the contents of DDR Ex.DW1/A dated 06.01.2003 is reproduced as under:

At about 10:30 a.m., a telephone has been received. On the asking by telephone caller, I told that I Sucha Singh was speaking, then caller called me dog and abused me by my sister and told that he (Banarasi Dass) DSP (Vigilance) was speaking. He had sent his reader for verifying the passport to you. The passport holder was his relative and why did you make a report over the passport that he was only a tenant in the premises for the last 1 1/2 years then I said that when the address of the passport holder was of Bombay then how could I make the report that he was residing at Rajpura, then DSP Banarsi Dass started abusing me and threatened me that he will see as he had shown jail to the big persons and I was no one. He (Banarasi Dass) will see me and tell me that how I did not make a report according to him. He (Banarasi Dass) further spoke bad on the telephone and shut down the call.

He also informed about the telephonic message to SHO, who told him (Sucha Singh) to enter about the same in the Roznamcha. Report has been entered. I fully doubt that Banarsi Dass, DSP (Vigilance), would implicate him in some false case. I am sending copy of this report to the Senior Officers for information.

At the time of receipt of this telephone, Head Constable Satnam Singh and C-II Pardip Kumar were also present. This report could not be proved to be false by any means by the prosecution. It may further be mentioned that on the day of recording the DDR, the accused never knew that he would not only be actually apprehend but would be involved in a false case. ASI Pawan Kumar (DW3), who was present in the police station on the day of occurrence, also stated that no recovery was effected from the accused in his presence. The report No. 7 dated 06.01.2003 could not in any manner be indicted as false, concocted or afterthought as the case was registered 10 days thereafter. It is mentioned in the report that he had sent the same to the higher police officers and he had also informed the SHO Police Station about the same but no evidence was collected by the prosecution in order to establish that the report was an afterthought. As such, the report Ex.DW1/A helps the Court to see the cat in the bag and reveals the enmity and the fire of revenge in the mind of investigating Officer against the accused for implicating him in this case. It has also come in evidence that DSP Banarasi Dass (PW10) is in the habit of registering false cases against certain officials. He has admitted during the cross-examination that he had recorded the FIR against ASI Maghar Singh under the Prevention of Corruption Act and during inquiry the case was found to be false. He further admitted that Sh. K.C. Puri, Special Judge, Patiala, accepted the cancellation report concerning FIR No. 55. He also admitted that he got registered a case against ASI Tarsem Lal under the Prevention of Corruption Act. It has not been denied that after the inquiry ADGP (Vigilance) found the said case to be false, as such, no reliance could be placed on such Investigating Officer. All these facts and circumstances were not taken into consideration by the trial Court while discussing the prosecution evidence. The defence plea, as set up by the accused through witnesses, has also not been appreciated in the right perspective. As such, the impugned judgment appears to be not correct and requires interference.

In the wake of aforesaid discussions, I hereby accept the appeal, set aside the impugned judgment and acquit the accused of the charges framed against him and direct him to be set at liberty forthwith. Bail bond and surety bond, furnished by him, stand discharged. Fine, if any, deposited, be refunded.