Punjab-Haryana High Court
State Of Haryana vs Dinesh Kumar And Another on 15 July, 2022
CRM-A-484 of 2021 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-A-484 of 2021
Date of Decision: 15th July, 2022
State of Haryana
... Petitioner
Versus
Dinesh Kumar and another
... Respondents
CORAM : HON'BLE MR. JUSTICE AVNEESH JHINGAN
Present : Mr. Gurmeet Singh, AAG, Haryana.
***
AVNEESH JHINGAN , J.(Oral)
This is an application for grant of leave to appeal against
acquittal of the respondents in FIR No. 211 dated 14.5.2018, under Sections
7 and 13 of the Prevention of Corruption Act, 1988 (for short, 'the Act')
registered at Police Station Rai, Sonipat.
The facts in brief are that on the basis of a complaint made by
Inspector-Rishikant, Station House Officer, Police Station Rai, Sonipat the
FIR was registered. It was alleged that a video was sent by Inspector Jai
Singh, showing that Constable Dinesh and SPO Sandeep posted at Police
Station Rai were taking money from the drivers of vehicles passing through
KMP expressway. A DVD was prepared and attached with the file. A phone
call was received from Suresh that he had recorded the video. Suresh along
with driver Rajesh and Dharampal were called by Deputy Superintendent of
Police. Suresh handed over his mobile to the police.
The prosecution heavily relied upon the depositions of PW3-
Suresh driver of the truck bearing registration No. RJ-18GB-0428, PW4-
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Dharampal, owner of truck bearing registration No. HR-61A-1219 and
PW5-Rajesh, owner of truck bearing registration No. HR-63B-4270. None
of these prosecution witnesses i.e. PW3 to PW5 supported the case of the
prosecution. They denied that the accused had made the demand or
accepted the money. Suresh deposed that he had not recorded the video. He
did not identify the respondents present in court. He further stated that
exhibited mobile was not the one which he had handed over to the police.
PW12-Constable Balraj deposed that CD containing the recording was
prepared from the data received through e-mail from Inspector Rishi Kant.
As per report of Forensic Science Laboratory Ex.MO/1, there was no proof
to prove that recording in the mobile was original. Failure of the
prosecution to prove the guilt of the respondents resulted in acquittal.
Learned counsel for the State contends that in the video
recording, the respondents were visible accepting the money from the truck
drivers, the trial court erred in acquitting the respondents.
Heard learned counsel for the State at some length and perused
the record.
From the perusal of the record, it is forthcoming that material
prosecution witnesses including the witness who had allegedly recorded the
incident and made a phone call to the police turned hostile. No evidence
was adduced to prove the twin conditions i.e. demand and acceptance of
illegal gratification.
It would be appropriate to quote the following decisions.
Supreme Court in Criminal Appeal No. 261 of 2022--K. Shanthmma v.
The State of Telangana, decided on 21.2.2022 held:
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"7.We have given careful consideration to the submissions.
We have perused the depositions of the prosecution witnesses.
The offence under Section 7 of the PC Act relating to public
servants taking bribe requires a demand of illegal
gratification and the acceptance thereof. The proof of demand
of bribe by a public servant and its acceptance by him is sine
quo non for establishing the offence under Section 7 of the PC
Act. In the case of P. Satyanarayana Murthy v. District
Inspector of Police, State of Andhra Pradesh and another
(2015) 10 SCC 152, this Court has summarised the well-
settled law on the subject in paragraph 23 which reads thus:
"23. The proof of demand of illegal gratification, thus, is
the gravamen of the offence under Sections 7 and
13(1)(d)(i) and (ii) of the Act and in absence thereof,
unmistakably the charge therefor, would fail. Mere
acceptance of any amount allegedly by way of illegal
gratification or recovery thereof, dehors the proof of
demand, ipso facto, would thus not be sufficient to bring
home the charge under these two sections of the Act. As a
corollary, failure of the prosecution to prove the demand
for illegal gratification would be fatal and mere recovery
of the amount from the person accused of the offence
under Section 7 or 13 of the Act would not entail his
conviction thereunder."
(Emphasis supplied)
A Division Bench of this Court in State of Punjab v.
Hansa Singh, 2001 (1) RCR (Criminal) 775, while dealing with an
appeal against acquittal, has opined as under:
"We are of the opinion that the matter would have to
be examined in the light of the observations of the
Hon'ble Supreme Court in Ashok Kumar v. State of
Rajasthan, 1991(1) SCC 166, which are that
interference in an appeal against acquittal would be
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called for only if the judgment under appeal were
perverse or based on a mis-reading of the evidence
and merely because the appellate Court was
inclined to take a different view, could not be a
reason calling for interference."
In Mrinal Das & others v. The State of Tripura, 2011
(9) Supreme Court Cases 479, the Supreme Court after
considering various judgments laid down parameters, in which
interference can be made in a judgment of acquittal, by observing
as under:
"8) It is clear that in an appeal against acquittal in the
absence of perversity in the judgment and order,
interference by this Court exercising its extraordinary
jurisdiction, is not warranted. However, if the appeal is
heard by an appellate court, being the final court of fact,
is fully competent to re- appreciate, reconsider and
review the evidence and take its own decision. In other
words, law does not prescribe any limitation, restriction
or condition on exercise of such power and the appellate
court is free to arrive at its own conclusion keeping in
mind that acquittal provides for presumption in favour of
the accused. The presumption of innocence is available to
the person and in criminal jurisprudence every person is
presumed to be innocent unless he is proved guilty by
the competent court. If two reasonable views are possible
on the basis of the evidence on record, the appellate court
should not disturb the findings of acquittal. There is no
limitation on the part of the appellate court to review the
evidence upon which the order of acquittal is found and
to come to its own conclusion. The appellate court can
also review the conclusion arrived at by the trial Court
with respect to both facts and law. While dealing with the
appeal against acquittal preferred by the State, it is the
duty of the appellate court to marshal the entire evidence
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on record and only by giving cogent and adequate
reasons set aside the judgment of acquittal. An order of
acquittal is to be interfered with only when there are
"compelling and substantial reasons", for doing so. If the
order is "clearly unreasonable", it is a compelling reason
for interference. When the trial Court has ignored the
evidence or misread the material evidence or has ignored
material documents like dying declaration/report of
ballistic experts etc., the appellate court is competent to
reverse the decision of the trial Court depending on the
materials placed"
No case is made out of factual or legal error, much less
perversity, in the impugned judgment. The view taken by the trial court is
plausible one. No case is made out for grant of leave to appeal.
The application for grant of leave to appeal is dismissed.
(AVNEESH JHINGAN )
JUDGE
15th July, 2022
mk
Whether reasoned/speaking Yes
Whether reportable Yes
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