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Gurbax Singh Vs. State of Himachal Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1977CriLJ1676
AppellantGurbax Singh
RespondentState of Himachal Pradesh
Cases ReferredRao Shiv Bahadur Singh v. State of VindhPra
Excerpt:
- .....and recovery that they forgot to give, the correct version. with regard to the statements of the police witnesses, that is, shri s. r. rattan (p. w. 6) and shri amar nath (p. w. 9) he found that they had also given correct version with regard to raid as also the recovery of the money offered and accepted as bribe and that their testimony corroborated the prosecution case and, there fore, he found that the case had been fully established by the prosecution.5. with regard to the defence evidence of sarvshri jagdish chand and santokh singh (d. w. 1 and d. w. 2) he found that the accused had actually handed over the charge of main circle before july 28, 1971 when he was on leave there. shri roshan lal (d. w. 8) has been produced by the defence to show that the complainant did not borrow.....
Judgment:

Chet Ram Thakur, J.

1. The appellant was employed as a Patwari in district Kangra. Ha was charged for having accepted Rs. 100/- from Shri Hukmi Ram (P. W. 1) as gratification other than legal remuneration for demarcating his encroached land and providing him the possession of the said land and had thereby committed an offence Under Section 161 of the Indian Penal Code. He was also charged Under Section 5(1)(d) of the Prevention of Corruption Act, 1947 punishable Under Section 5(2) of the said Act for having obtained for himself Rs. 100/- from Shri Hukmi Ram by abusing his position as a public servant.

2. It is stated that Shri Hukmi Ram made a complaint to Shri Amar Nath, Sub-Inspector of the Anti-Corruption Unit at Dharamsala on July 28, 1971 that he had gone to the appellant to get his land demarcated whereupon the appellant demanded Rupees 100/- from him for demarcating the land and to give him the vacant possession. The Sub-Inspector thereupon arranged a trap after having recorded the statement of the complainant on July 28. 1971, which was verified by Shri S. R. Rattan, Dy. Superintendent of Police, Anti-Corruption. The Dy. S. P. Shri Sadhu Ram Rattan after having formed a raiding party initialled the currency notes of Rs. 100/- of the denomination of Rs. 10/- each and prepared a memo and after that the money was given to Shri Hukami Ram who was told to hand over the came to the accused-appellant and it was decided that as soon as he passed over the money to the accused he would give a signal to the other members of the raiding party who were to remain away from the actual scene where the money was to be handed over. Shri Ram Dass (P. W. 2) was to work as a shadow witness to the complainant to see the passing of the money to the accused, After that they proceeded to the spot i. e. at Jawar. Shri Hukami Ram accordingly passed over the money to the accused and a signal was given whereupon the other members of the raiding party rushed to that place and surrounded the accused-appellant. Shri S. R. Rattan, Dy. S. P. disclosed his identity to the accused after giving his own search to the witnesses present there. The person of the accused was searched as a result of which Rs. 100/- currency notes were recovered besides Rs. 399/- which did not bear the signatures, letter Ex, P. 11, Chit Ex. P. 12 and charge-list in triplicate Ex. P. 13/1 to 3 from the pocket of the shirt of the accused. A seizure memo (Ex. P. D.) was prepared at the spot and the same was signed by the witnesses. The numbers of the currency notes were tallied with the numbers as given in the memo Ex. P. B. which had been pre pared earlier at the time when the complaint was made by Shri Hukami Ram and a memo with regard to notes was prepared. Thereafter a case was registered and it was put up in the Court after having obtained the sanction from the appropriate authority.

3. The defence of the accused was that the complainant had gone to him for getting demarcation/vacation of the encroached land. He never demanded Rs. 100/- from the complainant. According to him, on July 28, 1971 he was not working as Patwari of Main circle and he had handed over the charge of that Patwar-circle on July 25, 1971 to Shri Lakha Singh Patwari of the adjoining circle He also denied that Shri Hukami Ram paid him Rs. 100/- on July 28, 1971. He admitted his presence at Mairi (Jawar) but he explained that he was on two days leave, that is, for 27th and 28th July, 1971 as he had to attend the marriage ceremony at the house of Shri Harnama who was the owner of the building in which the Patwarkhana of that circle was situate. His further explanation was that when he was coming from the Bazar side to the house where the marriage was being celebrated the complainant met him near the shop of one Prem Dass and there the complainant tried to put Rs. 100/-currency notes in his pocket but he did not permit him to do so. In that process the notes fell down on the ground and they got spread over. In the meanwhile some persons came there who ordered that he may be apprehended. He, therefore, admitted that he was arrested. It was further explained by him that he was taken from there to a nearby place where a Jeep was also brought from the road-side. It was further stated that there the Police brought a shirt from the house of one Birbal and he was made to change over the shirt which he was wearing. The Police seized his shirt containing Rs. 399/-, charge report in triplicate of Oel Patwar circle and one inland letter and a chit were also taken into possession and it was there that Shri Amar Nath, Sub Inspector, put Rs. 100/-more into these articles which he had taken from his shirt and those Rs. 100/- currency notes were the same notes which were collected by Shri Amar Nath, Sub Inspector on the road-side where Shri Hukami Ram had tried to plant them on him. He further explained that Shri Nanak Chand was a tenant of Shri Hukami Ram complainant and he was cultivating 14 Kanals 11 Marias of land belonging to Shri Hukami Ram. Shri Hukami Ram wanted to record the Girdawari in his name instead of the tenant. He expressed his inability to oblige him. Further that Shri Nanak Chand's son Shri Hari Ram was also a Patwari and this fact gave an impression to the complainant that the accused was helping him as a colleague. On this the complainant became inimical to the accused and foisted a false case against him.

4. The learned special Judge after having recorded the evidence found that the complainant (PW. 1) had correctly given the sequence of events concerning raid and its execution. With regard to the statements of P. W. 2 Shri Ram Dass and P. W. 3 Shri Ranjit Singh who had not supported the case of the prosecution on the point of recovery of the currency notes from the possession of the accused he held that the witnesses were stating wrongly that they did not witness the actual recovery from the accuse. It was because of the lapse of 4 years period since the time of the actual raid and recovery that they forgot to give, the correct version. With regard to the statements of the Police witnesses, that is, Shri S. R. Rattan (P. W. 6) and Shri Amar Nath (P. W. 9) he found that they had also given correct version with regard to raid as also the recovery of the money offered and accepted as bribe and that their testimony corroborated the prosecution case and, there fore, he found that the case had been fully established by the prosecution.

5. With regard to the defence evidence of Sarvshri Jagdish Chand and Santokh Singh (D. W. 1 and D. W. 2) he found that the accused had actually handed over the charge of Main circle before July 28, 1971 when he was on leave there. Shri Roshan Lal (D. W. 8) has been produced by the defence to show that the complainant did not borrow any money from him on the relevant date because according to Shri Hukami Ram (P. W. 1) the case was that he had no money with him to give the same to the accused as bribe and, therefore, he borrowed Rs. 150/- from Shri Roshan Lal but he did not support the statement of P. W. 1. About the statement of Shri Roshan Lal it was held that his statement was not very material and it was possible that the complainant may have introduced this story that he had borrowed money for bribe from Shri Roshan Lal or the latter may be deposing falsely now after four years of the transaction to help the accused. Further he disbelieved the statement of Shri Roshan Lal on this score also that the offering of the money and recovery, raid incident, fully stood proved otherwise as an independent fact without much depending on the minor matter of money arrangement by the complainant. With regard to the statement of Shri Prem Dass (D. W. 4) he held that his statement did not make out that any such attempt of thrusting money on the accused, was done by the complainant or that the currency notes got spread over the road and that Shri Amar Nath, Sub-Inspector, collected them from the road. He was also disbelieved and moreover it was held that there was not the slightest suggestion put by the accused to the prosecution witnesses in cross-examination that the complainant was thrusting money on him for which he protested and the currency notes got spread over on the road which were lifted by the Sub-Inspector Shri Amar Nath. The accused could not produce any other corroborative evidence to the alleged defence version sought to be supported through the testimony of Shri Ram Dass though there was no dearth of witnesses as the occurrence took place in Jawar Bazar on the road side when the marriage was also being celebrated. So on these basis discarding the defence theory and the evidence the learned Special Judge found that the case had been proved against the accused and he, therefore, convicted him for the charges levelled against him and sentenced him to rigorius imprisonment of one year and to a fine of Rs. 500/- Under Section 5(2) of the Prevention of Corruption Act and in default of payment of fine he was ordered to undergo further rigorous imprisonment for three months. He was sentenced to another one year's rigorous imprisonment with a fine of Rs. 500/- Under Section 161 of the Indian Penal Code. Both the sentences were ordered to run concurrently.

6. In this appeal it has been contended that the learned Special Judge has not appreciated the evidence in accordance with the established principles of law of evidence applicable to criminal cases. Further that he had erred in observing that discrepancies in the prosecution evidence were minor and Were not fatal to the prosecution story. According to the learned Counsel the discrepancies in the statements of the witnesses were very major. Further that the investigation was conducted by a Sub-Inspector without obtaining the sanction from the authority concerned under the Act and as such the trial stands vitiated and no conviction can be based on such investigation. Further it was argued that the prosecution story as unfolded is highly unreasonable, inconsistent and incredible. According to the learned Counsel the accused was not holding the charge of the Patwar circle concerned on the date when the bribe is given and the raid is conducted. The trap was laid against the appellant with the manifest intent and design to get him punished illegally as the appellant had not obliged the complainant as the latter had desired. The learned Special Judge has not considered this aspect of the matter that he had ceased to be the Patwari of that circle on the 25th and thereafter he could not oblige the complainant. The learned Special Judge had further based the conviction on conjectures and surmises. Then he has taken me through the evidence in order to show that the same was highly discrepant and incredible.

7. It is an admitted fact that the accused bad been transferred from Mairi Patwar circle and he had already handed over the charge of his office as a Patwari of Mairi circle on 25th July, 1971 to Shri Lakha Singh Patwari as is evident from Ex. P. W. 4/C which is the handing-over and taking-over report. Shri Ram Lal who is an Assistant in the office of the Deputy Commissioner. Una appeared as P. W. 4 and he produced these documents. From his statement it is apparent that the accused-appellant was ordered to be transferred by the Deputy Commissioner by his order dated 29-6-1971 and Shri Santokh Singh Patwari was to take charge from him at Mairi, The case of the prosecution itself is also that on the date when the raid was conducted and the bribe was taken he was no longer the Patwari of Mairi circle. Now the question is whether in these circumstances even if it may be assumed that he had accepted this amount other than legal gratification had he committed any offence when he could not oblige the complainant. The learned Counsel for the State (Shri H. K. Paul) has relied upon Pritam Singh v. State and also on Mahesh Prasad v. State of Uttar Pradesh : 1955CriLJ249 to show that even if the public servant is not in a position to do official act, favour or service at the time when the bribe is taken that would not affect the guilt of the accused. The Supreme Court authority lays down that to constitute an offence Under Section 161 it is enough if the public servant who receives the money takes it by holding out that he will render assistance to the giver 'with any other public servant' and the giver gives the money under that belief. It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. He may not even have intended to do what he holds himself out as capable of doing. He may accordingly be guilty of cheating. Nonetheless he is guilty of the offence Under Section 161. Although in this case the appellant was employed in the Railway and he was not himself the person who was in a position to give a job to the complainant nor is it shown that he had any intimacy or influence with any particular official who could give a job yet it was held that the appellant was guilty of the offence Under Section 161, The ratio in the Punjab authority is also the same, Therefore, what follows is that even if the public servant was not capable of rendering any service to the complainant yet the fact remains that according to the allegations of the prosecution he demanded money with the object of showing favour to the complainant and it is also not denied that till 25th July, 1971 the appellant was in charge of the Patwar circle Mairi where the complainant resides. According to the statement of the complainant he had been going to the accused-appellant several times requesting the Patwari to give him the possession of the land but the Patwari that is, the accused used to put him off. It was on the 20th day, of July, 1971 that the accused demanded Rs. 100A from him for doing the job. So on that date he was admittedly the Patwari of that circle and according to the statement of Shri Hukami Ram (P. W. 1) the accused wanted the money to be paid to him on 28th July at village Jawar. Therefore, in these circumstances this contention of the learned Counsel for the appellant that he was not the Patwari of that circle on that date and was not in a position to show any favour to the complainant has got no force if it is proved that the money was actually given and recovered from him.

8. The second point is that the investigation was conducted by the Sub-Inspector who was not authorised as contemplated Under Section 5-A to investigate the case. He was not specially authorised by the State Government in this behalf by general or special order or under the orders of a Magistrate of 1st class. According to the learned Counsel for the appellant the Magistrate could not take cognizance of the matter unless the investigation was done by a person authorised Under Section 5-A of the Act. Shri H. K. Paul contends that in view of the raito laid down in H. N. Rishbud v. State of Delhi : 1955CriLJ526 the defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. The main investigation in the case was conducted by Shri S. R. Rattan (P. W. 6) and the investigation was handed over to Shri Amar Nath (P. W. 9) only towards the end. Therefore, no prejudice that way had been caused even if there was a violation of the mandatory provisions of Section 5-A of the Act, In this case Shri S. R. Rattan (P. W. 6) who is the Dy. Superintendent of Police stated that after the search and recovery consequent to the raid he had prepared a memo for registering the case and sent it to the Police Station Amb with Sub-Inspector Amar Nath and which is Ex. P. F. He arrested the accused and recorded the statements of P. Ws. Ram Dass and Ranjit Singh besides others. The raiding party in fact consisted of Sarvshri S. R. Rattan. Dy. S. P., Sohan Singh Inspector, Amar Nath S. I., and Ram Parkash constable besides Ram Dass and Ranjit Singh. Shri Amar Nath, S. I. however, stated in cross-examination that Shri Devi Singh, Sub-Inspector, must have completed the investigation of this case as he had handed over the charge to him. The investigation was not complete when he handed over the charge to Shri Devi Singh, He has further deposed in cross-examination that on investigation he had found on the basis of the record taken in possession by him that the accused had been transferred to Oel Patwar circle. Shri Sadhu Ram Rattan (P.W. 6) also has admitted that he had not completed, the investigation of the case. He had initially investigated this case and had handed over the same to S. I. Amar Nath on 2-8-1971 and it is also admitted by him that he had not signed the currency notes meant for being paid to the accused by Shri Hukmi Ram. Towards the fag end of his statement Shri S. R. Rattan has stated that from 28-7-1971 to 1-8-1971 he only produced the accused for police remand to the C. J.. M. Dharamsala and no other investigation was carried out. Therefore, what follows from this is that the witness, that is, P. W. 6 did not conduct the investigation except arresting the accused and to obtain the remand from the Magistrate. The very object of remand is to gain time for further investigation in the case. Therefore, it is wrong to say on the part of Shri H. K. Paul that the entire investigation had been completed by Shri S. R. Rattan and nothing was left to be done by Shri Amar Nath. He simply arranged the raid and conducted the same. The investigation as a matter of fact was to commence after the formal First Information Report had been lodged with regard to the actual payment of the bribe. Therefore, in these circumstances it is apparent that the investigation was not carried out by the Dy. S. P. The provisions of Section 5-A as held in H. N. Rishbud v. State of Delhi (supra) are mandatory. Therefore, in these circumstances when the trial had already commenced and it had concluded the appellant had to show as to what was the prejudice or miscarriage of justice that had been caused by the investigation which was not done by the person authorised Under Section 5-A. According to the authority the breach of Section 5-A in the conduct of investigation is to be brought to the notice of the Court at an early stage of the trial and the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5-A of the Act has to be decided and the course to be adopted in these proceedings, determined. In the instant case the appellant does not appear to have taken up such an objection at the initial stage and he submitted to the jurisdiction of the Court and he has taken up this objection only in appeal, There is no doubt that a suggestion had been put to the witnesses, that is, Shri S. R. Rattan (P. W. 6) and Shri Amar Nath (P. W. 9) that the investigation was not completed by Shri S. R. Rattan (P. W. 6) rather the same was handed over to Shri Amar Nath (P. W. 9), but no attempt had been made to bring it to the notice of the Court at an early stage before the trial commenced that the investigation was vitiated for non-compliance of the requirements of Section 5-A. That being so, the investigation made by the Sub-Inspector even though it is in infraction of the provisions of Section 5-A will not vitiate the trial when the objection was not taken at the earliest stage and no prejudice appears to have been caused to the appellant for the violation of the mandatory provisions of this Section. Therefore, this point is decided against the appellant.

9. The further point that requires consideration is with regard to the discrepancies in the statements of the witnesses which are stated to be of a material and major nature. It is an admitted fact that the accused was at the Mairi Patwar Khana on 28-7-1971 and his defence was that the complainant forcibly wanted to put the currency notes of Rs. 100/- in his pocket but he did not agree with the result that the currency notes fell on the road and were spread over, and then the police picked up those currency notes, and later on the Police procured a shirt from the house of one Birbal and ha was made to change his shirt and put on the shirt procured by the police and then those hundred notes were mixed with the notes which had been recovered from his pocket. Now we have to advert to the statements of the witnesses. The recovery memo appears to have been testified by Sarvshri Ram Das, Ranjit Singh, the complainant, Sohan Singh Inspector and the Dy. S. P. (P. W. 6). Shri Ram Dass (P. W. 2) has stated to have joined the Police in the raid. He went with the police in a jeep to village Jawar. About half a furlong away from the Patwar Khana the raiding party got down from the Jeep and according to the directions he was asked to keep a watch on the complainant in this process of handing over of the money. According to him Shri Ranjit Singh and the Police people had concealed themselves in a nearby place and Shri Hukmi Ram went to the Patwar Khana and came out with the Patwari where he told him that the Patwari should do his work. There he paid the money and Shri Hukmi Ram put his Parna on his shoulder on taking it off from the head, This means that the witness had actually seen Shri Hukmi Ram (P. W. 1) handing over the money to the accused. Thereafter the Patwari returned to the Patwar Khana and he along-with Hukmi Ram and Ranjit Singh went towards the shop. In the meanwhile the Police party appeared on the scene and intercepted the Patwari and then he went to the shop. Further according to this witness when the Police asked the accused to stop telling him that he had taken bribe, people collected there and the accused was taken to the place where the Jeep was parked. However, he stated that the search of the accused was not taken in his presence. He simply saw the money lying on the bumper of the Jeep, Its recovery memo was prepared and he signed the same. Although the witness was cross-examined by the prosecution yet it does not mean that his statement cannot be pressed into service merely because he had stated that he was at the shop when the search was made. The witness has signed the recovery memo and he has stated that it was correctly written and that the recovery was made on personal search from the shirt pocket of the accused. In my opinion the witness cannot be dubbed as unreliable because it is a question of lapse of four years and two months ever since the search was made and he testified to the recovery memo. In my opinion there is nothing to discard his evidence. To the similar effect is the statement of Shri Ranjit Singh (P. W. 3) and his statement, in my opinion, also cannot be discarded merely because he stated that the recovery was not made in his presence although he is a witness to the recovery memo. That being so, I am of the view that the statements of these witnesses coupled with the statements of Shri S. R. Rattan (P. W. 6) and Shri Amar Nath (P. W. 9) with regard to the recovery of currency notes from the shirt pocket of the accused appear to be correct. The numbers of the currency notes recovered from the possession of the accused tally with the numbers of the currency notes that were offered by Shri Hukmi Ram (P. W. 1) to the Police at the time when he made the complaint Ex. P. A. on 26-7-1971. Therefore, these discrepancies in the statements of the witnesses cannot be said to be of a major nature, rather they are very minor and will not in any way be fatal to the prosecution case. Therefore, it is wrong on the part of the learned Counsel for the appellant to say that there being material discrepancies in the statements of the prosecution witnesses the statements should be totally discarded.

10. The learned Counsel for the appellant contends that the general rules of appreciation of evidence have got to be followed and on that basis, according to him, the statements of the witnesses to the raid are to be treated as if they are the statements made by the accomplices and, therefore, their statements cannot be relied upon unless the statement of the accomplice witness receives sufficient corroboration in its material particulars and he has relied on State of Bihar v. Basawan Singh : 1958CriLJ976 and also Rao Shiv Bahadur Singh v. State of VindhPra : 1954CriLJ910 . There can be no denying the fact that the statement of an accomplice should receive corroboration but it is also laid down in the authorities that it is not a rule of law but it is a rule of practice as a caution. In the instant case we find from the evidence of the police witnesses and other witnesses that the statements are consistent and cogent except minor discrepancies. The statements of the police witnesses cannot be disbelieved simply because they are police officials. Despite their long and searching cross examination nothing damaging has been brought out in their evidence to discard their statements as being unreliable. In these circumstances I find that there is sufficient corroboration on material particulars of the statement of Shri Hukmi Ram by other witnesses besides the statements of the Police officials.

11. As regards the defence evidence the learned Special Judge has rightly remarked that even if Shri Roshan Lal denied to have made the payment of Rs. 150/- to Shri Hukmi Ram (P. W. 1) still the fact remains that a raid was conducted and the currency notes the numbers of which had earlier been recorded in Ex, P. B. were actually recovered consequent to a search from the person of the accused after the raid was made. It is immaterial from which source the money came to Shri Hukmi Ram. So far as the other D. Ws are concerned they are with regard to the fact that the accused had already ceased to be a patwari and he had already handed over the charge is immaterial. In these circumstances there does not appear to be any force in this appeal and the same is hereby dismissed. The appellant shall surrender to his bail.


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