Chander Bhan vs State (Cbi)
1998 Latest Caselaw 392 Del

JUDGMENT

Mohd. Shamim, J.

1. This appeal is directed against a judgment and order dated August 24, 977 and August 31,1977 passed by a Special Judge, Tis Hazari, Delhi, whereby he found the appellant guilty under Section 161 of the Indian Penal Code and Section 5(2) read with Section 5(l)(d) of the Prevention of Corruption Act, 1947 ( 'the Act' for short). The appellant was sentenced to undergo rigorous imprisonment for one year with a fine of Rs. 200/- under Section 161 IPC. In case of default in payment of fine he was further directed to undergo rigorous imprisonment for a period of three months. Similarly he was sentenced to undergo rigorous imprisonment for one year with a fine of Rs. 200/- under Section 5 (2) read with Section 5(l)(d) of the Act. In case of his failure to clear the fine he was further sentenced to undergo rigorous imprisonment for a period of three months. Both the sentences were to run concurrently. However, the sentences imposed in default of payment of fine were to run consecutively.

2. Brief facts which gave rise to the present appeal are as under: that one Shri Raghbir Singh resident of village Bindapur, Delhi, ( hereinafter referred to as the complainant for the sake of convenience) approached the convict/appellant ( hereinafter referred to as the appellant in order to facilitate the reference) for supply of a copy of the revenue record pertaining to his land situated at village Bindapur. The appellant demanded a sum of Rs. 100/- from the complainant for the said purpose and told him that he should approach him over again on Monday i.e. 14th July, 1975 along with Rs.100/-. The complainant lodged a written complaint with the Superintendent of Police, CBI, New Delhi, with the above said allegations. Consequently a regular case No. RC 34/75-SPE/CBI/Delhi Branch was registered. The said case after registration was entrusted to PW 3, Dy.S.P.Chander Bhan, for the purposes of investigation. He secured the presence of two independent witnesses i.e. Shri Prabhati Lal (PW2) and Shri Baldev Raj (PW4) from the office of Directorate of Sugar and Va-naspati, Jamnagar House, New Delhi. A raiding party was formed by including the said persons in the said raiding party. The complainant (PW1) was introduced to the said witnesses who narrated the facts of the present case to them. He also produced ten currency notes of the denomination of Rs. 10/- each to be given to the appellant by way of bribe on his demand. The currency notes were treated with phenolphthalein powder and a demonstration was given to the witnesses with regard to the working of the phenolphthalein powder. The above tainted currency notes of Rs. 10/- each were handed back to the complainant with instructions to be passed on to the appellant when demanded by him by way of bribe. Shri Prabhati Lal (PW2), an independent witness, was deputed to act as a shadow witness in order to see and overhear whatever transpired in between the complainant and the appellant. After the completion of necessary formalities the raiding party reached village Palam at about 2.30 p.m. Shri Raghbir Singh PW1 and Shri Prabhati Lal PW2 left to contact the appellant at his office ( Patwarkhana). The appellant was found present at his office. The complainant asked the appellant as to whether he had prepared a copy of the extract from the revenue record pertaining to his land. The appellant asked for his fees. The complainant enquired of the appellant with regard to the amount to be paid whereupon the appellant told him that he would have to pay Rs. 100/- for the copy of the relevant revenue record pertaining to his land. The complainant on hearing the same took out the ten currency notes from his pocket and gave them to the appellant who accepted the same and put them into the left side front pocket of his shirt which he was wearing. Thereafter the appellant started preparing the copy of the revenue record after looking into the same. Shri Prabhati Lal PW2 thereupon came outside the office of the appellant and informed the raiding party that the appellant had accepted the bribe of Rs. 100/- from the complainant on demand. PW3 Chander Bhan, Dy.S.P. along with other members of the raiding party rushed to the office of the appellant and challenged him after disclosing his identity. The appellant was preparing copy of the revenue record pertaining to the land of the complainant at that time. After challenging, PW3 Dy.S.P. Chander Bhan caught hold of the appellant by both of his arms. The appellant got perplexed. On personal search of the appellant ten currency notes of Rs. 10/- each were recovered from the left side front pocket of his shirt. The numbers of the said currency notes tallied with the currency notes mentioned in the handing over memo prepared earlier.

3. The right as well as the left hand fingers of the appellant were got dipped into sodium carbonate solution which turned pink. The left side front pocket of the shirt on being washed with sodium carbonate solution also turned pink. A copy of an extract from the khasra girdawri in respect of the land of the complainant prepared by the appellant was also seized. The appellant was arrested and later on released on bail. The appellant has thus committed offences under Section 161 of the Indian Penal Code and Section 5(2) read with Section 5(l)(d) of the Act. Sanction to prosecute the appellant was obtained from the Deputy Commissioner, Delhi. After completion of all the formalities a charge sheet was filed against the appellant in the court of the Special Judge.

4. The appellant was summoned. Charges under Section 161 IPC and Section 5(2) read with Section 5(l)(d) of the Act were framed against the appellant. The appellant did not plead guilty to the said charges. The learned Special Judge after the appraisal of the evidence, documentary as well as oral, was of the view that the appellant was guilty under Section 161 of the Indian Penal Code as well as under Section 5(2) read with Section 5(l)(d) of the Act. He thus sentenced him to undergo rigorous imprisonments, referred to above.

5. Aggrieved and dis-satisfied with the said judgment and order the appellant has approached this Court by way of the present appeal.

6. Learned counsel for the appellant Ms. Neeta Thakur, has assailed the legality and the validity of the impugned judgment and order passed by the court below on various grounds. According to the learned counsel, the learned Special Judge fell into a grave error by placing reliance on the statement of the complainant, PW1 Raghbir Singh, inasmuch as the same did not find any support from the statement of shadow witness i.e. PW2 Prabhati Lal. According to the learned counsel PW1 is an accomplice. Hence his statement could not have been relied upon without corroboration from independent quarters ( vide Section 114(b) of the Evidence Act). Surprisingly enough there is no corroboration in the instant case from the statement of the shadow witness, PW2 Prabhati Lal, yet the learned Special Judge for reasons best known to him placed reliance on the same. Thus, learned counsel for the appellant contends that there is absolutely no evidence against the appellant.

7. The next contention raised on behalf of the appellant is that at the time of trial no pink colour was found on the left side front pocket of the shirt of the appellant where the appellant is alleged to have kept the tainted currency notes after acceptance of the same from the complainant. Hence the case of the prosecution is liable to be flung to the winds on this short ground alone.

8. Learned P.P., Mr. Dutt, has urged to the contrary.

9. As per the prosecution version PW2 Prabhati Lal was to act as a shadow witness. He was deputed to hear the talks which were to ensue in between the complainant and the appellant at the time of the passing of the bribe money from the complainant to the appellant and later on to witness the acceptance of the same by the appellant. Curiously enough PW2 Prabhati Lal for the best reasons known to him did not accompany the complainant to the office ( Palwarkhana) of the appellant and remained outside his office as a corollary whereof he could neither hear the talks nor could witness acceptance of the alleged illegal gratification by the appellant. PW2 Prabhati Lal has got this to say on being cross-examined by the learned PP, that he did not hear talks which ensued in between the complainant and the appellant as he was outside. He has also emphatically deposed to the fact that he did not see the complainant giving any money to the appellant.

10. It is amply clear from above that there is no corroboration to the statement of the complainant PW1 Raghbir Singh inasmuch as the said statement does not gain any sustenance from the statement of PW2 Prabhati Lal who could neither see the passing of the tainted money from the complainant to the appellant nor could he hear any talks in between them. Thus after excluding the statement of PW2 Prabhati Lal from the zone of consideration we are left with the statement of the complainant Raghbir Singh only. Now the question which comes to the tip of the tongue is as to whether the appellant is liable to be convicted on the sole testimony of the complainant PW1 Raghbir Singh?

11. Admittedly the statement of PW1 Raghbir Singh is in the nature of an accomplice. Hence it would not be safe to place reliance on his statement unless,.it is corroborated in material particulars ( vide Section 114(b) of the Evidence Act). However, this Court is also not oblivious of the fact that as per Section 133 of the Evidence Act an accomplice is a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroboated testimony of an accomplice.

12. With the above background let us now scrutinise the statement of the complainant Raghbir Singh and see as to whether it inspires confidence and thus it would be safe to rely upon it in the circumstances of the present case.

13. PW1 Raghbir Singh has admitted on being cross-examined that the appellant and Field Kanungo Ch. Kanwar Sain had come to dispossess him from 10 bighas of land in his possession on June 24, 1975. The said admissions on the part of PW1 Raghbir Singh are to be read along with the statement of the appellant under Section 313 Cr.P.C. wherein he has very categorically stated that he had complained against the complainant to the SDM, Punjabi Bagh for his unauthorised colonisation. As per his report the SDM ordered that the complainant be dispossessed from the land in his possession and the same be handed over to gaon sabha. The appellant in this connection has placed on record his report with regard to the unauthorised colonisation. One of the persons complained against, as is manifest from the said report, is PW1 Raghbir Singh complainant (vide Ex. D/A). The orders passed by the SDM are Ex. DB and Ex.DC.

14. To the same effect is the statement of PW7 Kanwar Sain, Office Kanungo, Mehrauli. He has very categorically stated that the appellant complained against PW1 Rahubir Singh with regard to the unauthorised colonisation in 1974 and the SDM thereupon passed orders for taking possession over the said land belonging to the complainant Raghbir Singh and to deliver the possession over the same to gaon sabha. He has further stated that he alongwith the appellant went to take possession. However the same could not be taken on account of the apprehension of breach of peace.

15. It thus can be safely concluded from above that it was the appellant who complained against the complainant, PW1 Raghbir Singh ( vide report dated August 15, 1974). The complainant lodged the report with the SP, CBI against the appellant on July 11,1975. The possession over the land belonging to the complainant was to be handed over to gaon sabha on June 24,1975. The complaint was lodged with the police on July 11, 1975 i.e. only 17 days after the possession was to be handed over to gaon sabha. Thus the complainant has got an animus against the appellant. He has got a motive to lodge a report against the appellant. Consequently the complainant by no stretch of imagination be called an independent witness. His statement is to be looked upon with suspicion and caution and it would not be safe to place reliance thereon.

16. Furthermore, a perusal of the charge sheet reveals that as per the prosecution version the appellant was preparing a copy of the extract from the revenue record ( Khasra Girdawri) in respect of the land of the complainant Raghbir Singh at the time the raid was laid against him. To the same effect is the statement of PW3 Dy.S.P. Chander Bhan. According to him, the appellant was preparing a copy of the revenue record pertaining to the land of complainant Raghbir Singh. Surprisingly enough the copy of the said extract from the revenue record was never seized from the spot. Instead an extract from the revenue record pertaining to the land of Shri Balbir Singh is placed on the file of this Court as is manifest from Ex. P5/A. This again casts suspicion on the case of the prosecution.

17. It is in the statement of PW1 Raghbir Singh as well as PW3 Chander Bhan, Dy.S.P. that the appellant after having accepted the tainted currency notes kept the same in the left side front pocket of his shirt. The said shirt after the recovery of the tainted currency notes was removed from his person and was dipped in the solution of sodium carbonate whereupon the said solution turned pink. It implies thereby that the pocket of the shirt of the appellant which he was wearing must have pink colour. Astonishingly the shirt ( Ex.P1) which was produced before the court did not have any such colour on the left side front pocket. This fact has been admitted by PW3 Chander Bhan. This again casts suspicion with regard to the authenticity of the prosecution version particularly when the said shirt bore pink marks at other places i.e. on the front side of the shirt. The learned lower court has ignored this fact by stating that it is just possible that the faint pink colour on the pocket of the shirt of the accused might have disappeared with the passage of time. The learned lower court, I feel, was not correct while coming to the said conclusion. Had that been true the pink marks on the other parts of the shirt would

have also disappeared. Admittedly quite a substantial part of the shirt must have turned pink on being dipped into the solution of sodium carbonate and the same could not have disappeared with the passage of lime as observed by the learned Special Judge particularly when pink marks were found on the front part of the shirt and did not disappear with the passage of time. This again creates suspicion in the mind of ths Court with regard to the veracity of the case of the prosecution.

18. The appellant in his written statement in Urdu ( vide para 6) has slated that on July 14, 1975 the complainant Raghbir Singh approached him with the request to accept the impugned amount for handing over the same to Sube Singh. Sube Singh was to come to lake the said money from him later on and he was required to give the said amount to Sube Singh. It was in the above circumstances that he took the said amount by one hand and kept the same on the cot with the help of another hand and told the complainant straightaway that he should deliver the said amount himself to Sube Singh. It is a well settled principle of law that an accused is under no obligation to prove his defense. It is sufficient if he comes out with a probable and plausible version. 1 feel that the appellant has put forward a probable and plausible version in the present case.

19. In the above circumstances, this Court is of the view that the prosecution has failed to bring home the guilt to the appellant beyond any shadow of doubt. The appeal is allowed. The conviction and sentence awarded to the appellant vide the impugned judgment and order dated August 24, 1977 and August 31, 1977 passed by the learned Special Judge, Delhi, are hereby set aside. The fine, if deposited by the appellant, be refunded to him.