Umed Singh vs State of Haryana

L.N. Mittal, J.—Umed Singh, who stands convicted and sentenced u/s 7 of the Prevention of Corruption Act, 1988 (in short, the Act) by learned Special Judge, Jhajjar vide judgment dated 07.02.2003 and order dated 11.02.2003, has preferred the instant criminal appeal.

Prosecution case against the accused Appellant may be narrated as under:

On 28.07.1997, complainant Phool Kumar made complaint Ex.PC to Om Parkash, Deputy Superintendent of Police (DSP), State Vigilance Bureau, Rohtak alleging that complainant''s father owned 18 acres land out of which one chunk was of 7 acres.

There is tubewell in the said field with electricity connection in the name of complainant''s father, who had since died about two years before the making of this complaint. The complainant was cultivating the said 7 acres land. About 15 days prior to making of complaint, electric pole of the supply line of the tube-well got broken and accordingly power supply to tubewell was disrupted. He went to the office of Electricity Board many times. He met the accused Umed Singh, who was posted as Junior Engineer in Haryana State Electricity Board at Jhajjar and was junior engineer of the concerned area. The accused demanded Rs. 1000/-as illegal gratification from the complainant for re-erection of the pole. The accused also told the complainant that he (accused) would not accept the amount directly from the complainant, but would accept it from somebody else. Accordingly the complainant along with his neighbour Krishan Lal met the accused. The deal was struck at Rs. 700/-. The accused told that he would accept the amount from Krishan Lal and assured that the work would be done. Accordingly, the complainant accompanied by Krishan Lal approached the police and made application Ex.PC on the basis of which FIR was registered.

Raiding party was formed by joining Phool Kumar, who was made shadow witness, Krishan Lal, who was to give the bribe money to the accused and also Malik Ram, Sarpanch. City Magistrate Chander Parkash was also joined in the raiding party as deputed by Deputy Commissioner on application moved by DSP for the purpose. Complainant gave amount of Rs. 700/-in the form of one currency note of Rs. 500/-denomination and two currency notes -3 of Rs. 100/-denomination. The currency notes were initialled by the City Magistrate. Phenolphthalein powder was applied to the currency notes and the same were handedover to Krishan Lal. Numbers of currency notes were noted in the memo. Necessary instructions were given to Krishan Lal and Phool Kumar. Accordingly Krishan Lal gave the tainted currency notes to the accused on his demand and Phool Kumar gave necessary signal. The raiding party reached the spot and apprehended the accused. Tainted currency notes were recovered from the accused. Numbers thereof tallied with the numbers of the notes already noted in the memo. Pocket wash of shirt of the accused turned the Sodium Carbonate solution into pink. Hand wash of the accused in separate solution also gave the same result and so also the tainted currency notes. All the solutions were sealed and so also the currency notes and seized by the police. Necessary investigation was conducted at the spot. Sanction for prosecution of the accused was obtained. On completion of investigation, the accused was sent for trial under Sections 7 and 13 of the Act.

Charge u/s 7 of the Act was framed against the accused, who pleaded not guilty to the charge and claimed trial.

To prove its case, prosecution examined 12 witnesses. Krishan Lal PW-1 who allegedly handedover the tainted money to the accused on his demand and complainant Phool Kumar PW-2, who acted as shadow witness, have both turned hostile completely and have denied the prosecution version in toto. They were declared -4 hostile and were cross-examined by Public Prosecutor, but still they denied the prosecution version.

Constable Subhash Chand PW-3 stated that there was no tampering with the case property in his possession.

Constable Sumit Kumar PW-4 stated about preparation of scaled site plan of the place of occurrence.

Inspector Shri Ram PW-5 and ASI Ram Kumar PW-6 being formal witnesses tendered their affidavits in evidence.

Azad Singh, Patwari PW-7 stated that complainant''s father Tek Chand was owner of land in village Norangpur and the same was transferred in favour of his issues vide mutation No. 1291 dated 28.12.1990. Complainant Phool Kumar was owner of 1/4th share in the said land. Inheritance mutation No. 1431 of Tek Chand was sanctioned in favour of his widow and children on 20.01.1996.

Sunder Dass PW-8 proved endorsement of Deputy Commissioner regarding deputing of City Magistrate Chander Parkash in the raiding party.

R. K. Dhingra PW-9 proved sanction order issued by him for prosecution of the accused.

Krishan Chand PW-10 stated from official record about posting of the accused as Junior Engineer. He also stated that complainant Phool Kumar had moved application that electric pole had broken down. Accused took necessary action and prepared estimate thereof and submitted the application back to the SDO after compliance. In cross-examination, the said witness stated that the -5 pole was re-erected on 26.07.1997 and the application after compliance was sent by the accused to SDO.

Om Parkash DSP PW-11 and Chander Parkash, City Magistrate PW-12 broadly stated according to prosecution version.

Malik Ram, Sarpanch was given up as unnecessary.

The accused in his cross-examination u/s 313 of the Code of Criminal Procedure (in short, Code of Criminal Procedure ) broadly denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He stated that he was called to tea shop and police officials including DSP succeeded in planting the tainted money. The pole had already been installed and, therefore, there was no question of demanding any amount from anybody. The accused did not lead any evidence in his defence.

Learned Special Judge, Jhajjar vide impugned judgment dated 07.02.2003 convicted the accused u/s 7 of the Act and after hearing the parties on quantum of sentence, vide order dated 11.02.2003, sentenced the accused to undergo rigorous imprisonment for one year and to pay fine of Rs. 1000/-and in default thereof, to undergo further imprisonment of three months. Feeling aggrieved, convict Umed Singh has preferred the instant criminal appeal.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the Appellant vehemently contended that both material witnesses of the prosecution namely Krishan Lal PW-1 and Phool Kumar PW-2 have turned hostile and, therefore, -6 there is no evidence whatsoever regarding alleged demand of bribe by the accused. Counsel for the Appellant, in support of his contention, has cited judgment of Hon''ble Supreme Court in the case of Banarsi Dass v. State of Haryana, 2010 (2) RCR (Criminal) 553 and judgments of this Court in the cases of Shiv Narain Sharma v. State of Haryana, 2009(2) RCR (Criminal) 372 and Karnail Singh v. State of Punjab, 2009(1) RCR (Criminal) 403. It was also submitted that according to testimony of Krishan Chand PW-10, the electric pole already stood reinstalled on 26.07.1997 and, therefore, there could be no question of making any demand of bribe on 28.07.1997 for erection of the pole.

On the other hand, learned State counsel contended that recovery of tainted money from the pocket of the accused has been fully proved by the statements of Om Parkash DSP and Chander Parkash, City Magistrate. It was also pointed out that complainant Phool Kumar has admitted his signature on application Ex.PC on the basis of which FIR was registered. Reliance has been placed on judgment of Hon''ble Supreme Court in the case of Hazari Lal v. State (Delhi Administration), (1980) 2 Supreme Court Cases 390 to contend that recovery of tainted money from the accused raises presumption of demand and acceptance of the bribe money by the accused and the said presumption has not been rebutted.

I have carefully considered the rival contentions. In this case, there is practically no evidence to depict that the accused ever demanded any illegal gratification from the complainant.

Complainant Phool Kumar and Krishan Lal were the only material witnesses to prove the alleged demand and acceptance of illegal gratification by the accused, but both the said star witnesses of the prosecution have turned hostile completely and have denied the prosecution version in toto. Statements of Om Parkash DSP and Chander Parkash, City Magistrate simply prove the recovery of tainted money from the accused, but their statements are not sufficient to prove the demand of illegal gratification by the accused, which is very essential ingredient of the offence u/s 7 of the Act. It is true that in appropriate cases, presumption of demand and acceptance of the bribe by the accused can be raised from the recovery of the tainted money from the accused, as held in the case of Hazari Lal (supra). In this regard, reference may also be made to Section 20 of the Act as well as to Section 114 of the Evidence Act. However, in the case of Hazari Lal (supra), the complainant had partly supported the prosecution case and there was also other reliable evidence led by the prosecution to prove the guilt of the accused. In the instant case, however, Phool Kumar complainant and Krishan Lal both material witnesses have completely denied the prosecution version. Consequently, mere recovery of tainted money from the accused as proved by Om Parkash DSP and Chander Parkash, City Magistrate is not sufficient to sustain the conviction of the accused Appellant.

The case of Bansari Dass (supra) is fully applicable to the facts of the case in hand. In that case also, the complainant and shadow witness turned hostile. Recovery of tainted money of the -8 accused was held proved from the statements of official witnesses, but nevertheless conviction of the accused was set aside because demand of illegal gratification by the accused was not proved as complainant and shadow witness had turned hostile. Judgments of this Court in the cases of Karnail Singh (supra) and Shiv Narain Sharma (supra) also support the contention of counsel for the Appellant entitling the accused Appellant to benefit of doubt.

In this context, it would also not be out of place to notice that Malik Ram, Sarpanch, the only independent witness joined in the raiding party, has also not been examined by the prosecution. The said witness was given up as unnecessary. However, it cannot be said that Malik Ram PW was unnecessary witness, particularly so in view of the nature of statements already made by Krishan Lal and Phool Kumar P Ws who had turned hostile. On account of non-examination of Malik Ram by the prosecution, adverse inference arises against the prosecution.

In addition to the aforesaid, Krishan Chand PW-10 stated from record brought by him that the pole had been reinstalled on 26.07.1997 i.e. two days before the trap was laid to catch the accused. If the pole had been erected on 26.07.1997, there was no occasion for the accused to have demanded and accepted the bribe money on 28.07.1997. This significant piece of evidence, coming from the mouth of the prosecution witness himself and based on official record brought by him, also entitles the accused-Appellant to benefit of doubt.

For the reasons aforesaid, I conclude that the prosecution has not been able to bring home the charge against the accused-Appellant beyond reasonable doubt. It is well settled that if two views are reasonably possible, the view favourable to the accused should be taken. In the instant case, the accused Appellant deserves the benefit of doubt for the reasons recorded hereinbefore. Accordingly, the instant criminal appeal is allowed and impugned judgment of conviction and order of sentence recorded by Special Judge, Jhajjar are set aside and the Appellant-accused is acquitted of the charge against him by giving him benefit of doubt. Fine amount paid by the accused-Appellant be refunded to him. Bail bonds furnished by the accused-Appellant stand discharged.