Jitendra Chauhan, J.@mdashThe present appeal is directed against the judgment and order dated 8.5.2002 (for short as ''impugned judgment'') passed by the Court of learned Special Judge, Ludhiana, (for short ''the trial Court''), whereby the accused/appellant has been convicted for the offence punishable under Sections 7 read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short ''the Act'') and sentenced to under R.I. for a period of 1 1/2 years and to pay a fine of Rs. 500/- for the offence u/s 7 of the Act and in default of payment of fine to further undergo R.I. for one month and also undergo R.I. for a period of 1 1/2 years and to pay a fine of Rs.500/- for the offence u/s 13(2) of the Act and in default of payment of fine, to further undergo R.I. for one month.
2. The facts, as noticed by the trial Court in para 1 of its judgment, are as under:
On 6.1.1998, Baljit Singh son of Bhagwant Singh, resident of village Burj Hari Singh, Tehsil Raikot alongwith one Inderjit Singh came to Vigilance office Ludhiana and Baljit Singh suffered a statement that his father had 6 1/2 acres of land abutting to the boundary of village Rajoana and the width of the passage going to their land was small as some of the land owners and encroached upon the passage. His father Bhagwant Singh on 22.12.1997 had moved an application before Tehsildar, Raikot for its demarcation and he had marked the application to Halqa Gardawar and on 30.12.1997, he went to Sh. Malkiat Singh, Halga Gardawar of village Bassian alongwith Inderjit Singh and presented the application before him for demarcation, but Malkiat Singh demanded bribe money of Rs. 1500/-. He made a request that he is not in a position to pay this amount and ultimately the matter was settled for Rs. 1000/-, but he was not having this money on that day and promised to come on 6.1.1998 with requisite money, but he was not in favour of paying the bribe money, therefore, he alongwith Inderjit Singh approached Vigilance Bureau Unit, Ludhiana and had brought Rs. 1000/- i.e. 10 currency notes of the denomination of Rs. 100/- each and were handed over by him to Sh. Pinder Singh, D.S.P. and treated these currency notes with phenolphthalein powder and directed that in case the accused demands the bribe money then these currency notes are to be given to him and its memo Ex. PB was prepared. Then demonstration was given by calling a glass of water in which sodium corbonate was mixed. It was colourless and when the finger of the complainant were dipped in the water, its colour turned into pink and then the solution water was destroyed and its memo Ex. PC was prepared. One Surinder Singh was joined in the raiding party and Inderjit Singh was prepared as a shadow witness and he was directed to accompany the complainant and as soon as the bribe money is demanded and accepted by the accused then he should give the signal to the raiding party by putting his hands on his head. When the police party reached Raikot the complainant and the shadow witness were dropped near outside Tehsil office. They both went inside the Tehsil office. They met the accused. The accused demanded the bribe money and it was paid by the complainant and in the mean time, shadow witness gave a signal to the raiding party and raiding party came there and secured the accused from his arms. A glass of water called for in which sodium carbonate was mixed. It was colourless and when the fingers of the hands of the accused were dipped in that solution water, the colour of the solution water turned into pink. That solution water was put into the nip and it was sealed by the D.S.P. with his seal bearing inscription PSD and the same was taken into police possession vide memo Ex. PE and from the search of the accused, 10 currency notes of the denomination of Rs. 100/- each were recovered. Their numbers were tallied with already prepared memo Ex. PB which tallied and were taken into police possession vide memo Ex. PD and from the outer pocket of the coat of the accused, an application was recovered which was taken into police possession vide memo Ex. PF. Then another solution water was prepared in which pocket of the coat of the accused was washed and the colour of the water was changed into pink. That solution water was put into a nip and was sealed by the DSP with his seal PSD and the same was taken into police possession vide memo Ex. PH. Parcel of the coat was prepared and the same was also taken into police possession. From the personal search of the accused, a sum of Rs. 746/- and other articles were recovered which were taken into police possession vide memo Ex.P.G. From the search of the complainant, nothing was recovered and its memo Ex. PR was prepared. The site plan of the place of recovery was prepared as Ex. PS. The case property was sent to the office of Vigilance Bureau, Patiala through C. Dharminder Singh. The nips were sent to the Forensic Science Laboratory, Chandigarh who vide its report Ex. PT opined that these are mixture of sodium Aaian, carbonate Aaian and phenolphthalein. After obtaining the sanction of the competent authority for prosecution of the accused and completion of other formal investigation, the challan was presented in the Court against the accused for trial.
3. The accused was charge-sheeted for the offence punishable under Sections 13(1)(D) read with Section 13(2) of the Act, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined as many as 10 witnesses, namely, Baljit Singh, complainant as PW 1; Inderjit Singh, shadow witness as PW 2; Hansa Singh, Tehsildar as PW 3; Surinder Singh as PW 4; C-II Sadhu Singh as PW 5; HC Gurbhej Singh as PW 6; C. Dharminder Singh as PW 7; Surinder Singh, Naib Sadar Kanungo as PW 8; Sarup Singh, DSP Vigilance as PW 9, DSP Pinder Singh, Investigating Officer as PW 10.
5. After completion of prosecution evidence, the accused/appellant was examined u/s 313 of Code of Criminal Procedure in which he denied all the incriminating circumstances appearing against him in the prosecution evidence and pleaded his false implication in the present case. However, in defence, he did not lead any evidence.
6. After hearing learned counsel for the parties, the learned trial Court convicted and sentenced the accused/appellant for the offence and the term as reflected in the outset in para 1 of this judgment.
7. Feeling aggrieved by the judgment and order of the learned Trial Court, the accused/appellant has preferred this appeal, which was admitted by this Court on 29.5.2002.
8. Learned counsel for the appellant has argued that no independent witness has been joined in the instant case. He has further submitted that as per the statements of Baljit Singh, PW 1 and Inderjit Singh, PW 2, they are close friends. The demand and acceptance was not in the presence of Surinder Singh, PW 4, who is shadow witness. He has not supported the case of prosecution. Therefore, the learned counsel has argued that there is no independent corroboration regarding the alleged demand and acceptance of the bribe money and conviction cannot be sustained merely on the statements of complainant Baljit Singh, PW 1 and Inderjit Singh, PW 2 as they are interested witnesses.
9. It is further argued that there are material contradictions with regard to the fact that Inderjit Singh, PW 2 accompanied the complainant Baljit Singh, PW 1, on 30.12.1997 to the office of the accused/appellant. As per the statement of complainant, he went to the office of the accused/appellant on 30.12.1997 with Inderjit Singh, PW 2, whereas Inderjit Singh, PW 2, in his cross-examination, has stated that he did not join with the complainant to Tehsil office on 30.12.1997. Inderjit Singh, PW 2, has further denied the fact that on 30.12.1997, the complainant told him the fact of visiting the office of the accused. This witness has also admitted in his cross-examination that it was on 1.1.1998, the complainant told him that he had settled the matter with the accused for a sum of Rs. 1,000/-.
10. Learned counsel has further referred to the statement of Surinder Singh, PW 4, who stated that DSP Pinder Singh, PW 10 (Investigating Officer), instructed him to search the person of the accused/appellant.
11. Learned counsel has further referred to the statement of complainant, PW 1 whereby DSP Pinder Singh, PW 10 (Investigating Officer) had specifically directed him to pay the amount to the accused/appellant on demand.
12. It has further been argued that there is no reference in the statements of Baljit Singh, PW 1 and Inderjit Singh, PW 2 that the accused raised the demand and in response thereof, the bribe money was paid and was accepted by the accused/appellant.
13. Learned counsel has also referred to the statement of appellant, wherein he has specifically stated that the complainant met him on 23.12.1997 and asked him to prepare demarcation of passage immediately. The appellant told him that he had to take patwari and revenue record with him and also has to inform the owner of the adjacent land, Sarpanch etc. before doing the job, whereupon, the complainant felt offended for this reasonable delay. The complainant after having connived with his friend Inderjit Singh, PW 2 and official of Vigilance Bureau out of lust for prize money of Rs. 25,000/-, has falsely implicated the appellant in the present case. The complainant tried to forcibly give the money to appellant and on refusal, the complainant forcibly tried to put the same in his pocket and thus, he has been falsely implicated in the present case.
14. Lastly, the learned counsel has argued that there is no mention of the fact that the raiding party offered themselves for search of the appellant before the alleged amount of bribe was recovered from the appellant.
15. On the other hand, learned counsel for the State has argued that demand and acceptance is fully proved from the statements of complainant Baljit Singh and Inderjit Singh, PW2. The accused was caught red handed and the tainted money was recovered from him by the Investigating Officer. Therefore, the case of the prosecution is proved beyond reasonable doubt.
16. I have heard the learned counsel for the parties and perused the record with their able assistance.
17. The admitted case of the prosecution is that the complainant alongwith Inderjit Singh, PW 2 went to the office of the accused/appellant to get prepared demarcation of passage immediately. The appellant demanded Rs. 1,500/-, and the deal was ultimately settled at Rs. 1,000/-. However, in the cross-examination, Inderjit Singh, PW 2, has stated that he did not accompany the accused on 30.12.1997 rather the complainant shared this fact with him on 1.1.1998, that he had settled the matter with the accused at Rs. 1,000/-. From the testimonies of these witnesses, it is amply proved that they are good friends, therefore, I have no hesitation to record that the complainant and Inderjit Singh, PW 2 both are interested witnesses. The other material witness Surinder Singh, PW 4, has not supported the case of prosecution.
18. There are material contradictions in the statements of complainant and Inderjit Singh, PW 2. As per the statement of complainant he alongwith Inderjit Singh, PW 2, went to the office of the accused/appellant to make demarcation of passage immediately. The appellant made a demand of Rs. 1,500/-, which was ultimately settled for Rs. 1,000/-. However, in the cross- examination, Inderjit Singh, PW 2, has stated that he did not accompany the accused on 30.12.1997 rather the complainant shared this fact with him on 1.1.1998, that he had settled the matter with the accused at Rs. 1,000/-. The other material contradiction is that complainant, Inderjit Singh, PW 2, in his statement has stated that Inderjit Singh, PW2, was with him when the alleged bribe money was paid in Varandah, whereas as per the statement of Inderjit Singh, PW 2, the bribe money was paid at the outer gate of the Tehsil Office.
19. There is also material discrepancy in the case of prosecution as regards the search of the pockets of the accused/appellant and recovery of the bribe money. Surinder Singh, PW 4, has stated that DSP Pinder Singh, PW 10, Investigating Officer, asked him to search the pockets of the accused and in pursuance thereof, he searched the pockets, whereas the Investigating Officer, PW 10, has stated that he himself searched the pockets of the accused and recovered the tainted currency notes. It has also come in the statement of Surinder Singh, PW 4, that seal was not handed over to anybody. Therefore, I have no hesitation to hold that in the instant case, there are material contradictions in the prosecution case.
20. It is also relevant to record that the Investigating Officer had specifically instructed the complainant to pay the bribe money on being demanded. However, from the perusal of the statements of the complainant and Inderjit Singh, PW 2, it has not come on record that the accused raised a demand for bribe and in response thereof, the tainted money was paid to him which was accepted by him. Therefore, in my considered opinion the demand and acceptance of bribe is not proved coupled with the fact the raiding party did not make an offer for their personal search before the accused. There is nothing on record that acceptance was volunteerd rather it is a specific assertion of the appellant when examined u/s 313 of Cr. P. C. that he did not oblige the complainant to make the demarcation for passage immediately, on which, the complainant felt offended and connived with his friend Inderjit Singh, PW 2, and official of Vigilance Bureau out of lust of prize money amounting to Rs. 25,000/- and, thus, falsely implicated him in the instant case.
21. In the instant case, the Investigating Officer, PW 10, who recovered the tainted money did not offer himself for the search. In State of Punjab v. Kaushal Singh Pathania, 2004 (4) RCR (CrI.) 498, it has been held by this Court that if a Police Officer failed to offer himself for search by the accused, then search conducted on the accused is absolutely illegal.
22. The demand of bribe is missing and acceptance thereof is also not voluntary. The case of the prosecution is not supported by official witness Surinder Singh, PW 4 coupled with the fact that there are material contradictions in the statements of prosecution witnesses. Before convicting the accused/appellant, an independent corroboration is required and conviction cannot be sustained merely on the statements of complainant Baljit Singh, PW 1 and Indeijit Singh, PW 2, as they arc interested witnesses.
23. In the light of the above discussions, I allow the present appeal and acquit the appellant of the charges levelled against him. Accordingly, his conviction and sentence as ordered by the learned trial Court is set aside. The appellant is stated to be on bail. His bail bonds shall stand discharged forthwith.
24. Since the instant appeal is disposed of, as such, the pending misc. applications, if any, shall stand disposed of.
