BHIM SAIN Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction, and the order of sentence, dated 24.01.97, rendered by the Court of Special Judge, Gurgaon, vide which it convicted the accused (now appellant), for the offence punishable under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 (hereinafter to be called as the Act only) and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1000/-, in default of payment of the same, to further undergo rigorous imprisonment for a period of three months.

(2.) THE prosecution case, as summarized, runs in the manner, that on 19.11.92, Birpal, complainant, appeared before Darshan Singh, Deputy Superintendent of Police, State Vigilance Bureau, Gurgaon. He made a statement PF before him, which was read over and explained to him. After admitting the same to be correct, he signed it. It was stated by him, in the aforesaid statement, that he was a resident of village Baskusla, and an agriculturist by profession. He had passed 9th class. His grand-father had two sons namely Bharat Singh and Chattar Singh and three daughters namely Meera Bai, Gajo and Jainda. His uncle Chattar Singh had expired about 7/8 years earlier to 19.11.92. Chattar Singh had four sons namely Satpal Singh, Rambir Singh, Mukesh and Samey Singh. The complainant had three brothers namely Sukhpal Singh, Rampal Singh, and Satish. They filed a Civil Suit in the Court of Sub Judge-III Class, Gurgaon, against the sisters of their father (Buas) for the transfer of land measuring 109 kanals 2 marlas, in their favour, situated in village Baskusla. The said suit was decreed on 05.06.90. The complainant alongwith Chattar Singh had met Bhim Sain, Patwari, for entering the mutation, in the revenue record, in their favour. He also handed over a copy of the judgement of the Civil Court to the said Patwari. The Patwari accepted the copy of the judgement, referred to above, after comparing the same, with the certified copy of the same (judgement). He demanded a sum of Rs. 400/-, as illegal gratification, for entering the mutation. The complainant requested the Patwari that he being a poor person, had already spent sufficient amount, in the Court proceedings, and, as such, was unable to pay such a hefty amount, but he (Bhim Sain, Patwari) did not listen to his request. The complainant alongwith Chattar Singh again met the aforesaid Patwari about 5/6 days earlier to 19.11.92 in his office, situated in Shivaji Nagar, Gurgaon. The accused told him that the previous copy of the judgement handed over to him had been lost by him and another copy be supplied. The complainant handed over to him another photocopy of the judgement, referred to above. He again demanded a sum of Rs. 400/- as gratification, other than legal remuneration, from the complainant. Since the complainant did not want to pay gratification, other than legal remuneration, to the accused, he put him off, on the pretext, that he be given sometime so as to enable him to arrange the amount. It was further stated by him that Bhim Sain, Patwari, accused, was not ready to enter the mutation until and unless he was paid the amount of Rs. 400/- demanded by him, as gratification, other than legal remuneration, for the aforesaid work. On the basis of the said statement of Birpal, the first information report was registered. Birpal, complainant, produced four currency notes of the denomination of 100/- each, before Darshan Singh, Deputy Superintendent of Police. The currency notes were taken into possession, vide memo exhibit PG after noting the numbers thereof, attested by Birpal and other witnesses. Thereafter, phenol-pathelein powder was applied to the said currency notes. The Deputy Superintendent of Police, also appended his initials on these currency notes. Thereafter, the same were handed over to Birpal, vide memo PH. Darshan Singh, Deputy Superintendent of Police, went to the office of the Deputy Commissioner, for obtaining the permission. The Deputy Superintendent of Police moved an application PP for obtaining the permission and requested for providing a Gazetted Officer, to be a member of the raiding party. The Deputy Commissioner, vide order PP/1, granted necessary permission and deputed Daya Ram, Block Development Officer, to be a member of the raiding party. Thereafter, the raiding party, headed by Darshan Singh, Deputy Superintendent of Police, and consisting of Birpal, complainant, Jas Ram, Inspector, as shadow witness, and other witnesses was constituted. Birpal, was instructed that, as and when, he handed over the tainted currency notes to the accused, he would give a signal while putting his hand on his head. Jas Ram, Inspector, was instructed to hear the talk between Birpal and Bhim Sain, accused, as also exchange of currency notes. The other members of the Police party, stayed at some distance. On receipt of the requisite signal, the raiding party entered the office of the accused. The Deputy Superintendent of Police disclosed his identity. The search of the accused was conducted. From the left side pocket of the shirt of the accused, the tainted currency notes in the sum of Rs. 400/- of the denomination of Rs. 100/- each, were recovered. The tainted currency notes P1 to P4 were sealed in an envelope and taken into possession, vide recovery memo PI. The hands of the accused were got washed in the water mixed with sodium carbonate. The colour of the same turned pinkish. The said solution was put in a quarter bottle P8. The same was sealed with the seal, bearing impression JR, and taken into possession vide memo PL. The shirt of the accused was got removed. The pocket of the shirt P5 was reversed, and also washed, in a freshly prepared solution of water mixed with sodium carbonate. The solution turned pinkish. The same was also put in quarter bottle P6 and taken into possession vide recovery memo PJ. The shirt was converted into a parcel and was also taken into possession vide the same memo. Thereafter, the hands of Birpal, complainant, were also got washed, in a freshly prepared solution of water mixed with the sodium carbonate. The solution turned pinkish. The same was put into quarter bottle P7, duly sealed and taken into possession vide recovery memo PK. Photocopies of Rojnamcha P10, and Decree-Sheet P11, were also taken into possession vide recovery memo PM. Rough site plan PQ of the place of recovery, was prepared. The statements of the witnesses were recorded. The accused was arrested. On return to the Police Station, the case property was deposited with the Moharrir Head Constable. After the completion of investigation, the accused was challaned.

(3.) THE prosecution, in support of its case, examined Yashwant Singh, Deputy Superintendent of Police, State Vigilance Bureau, Gurgaon (PW1), who prepared the report, under Section 173 of the Code of Criminal Procedure, Deep Chand, Naib Tehsildar (PW2), who proved PA, the posting order of the accused, Mool Chand, Draftsman (PW3), who prepared the scaled site-plan PB, Birpal, complainant (PW4), Chattar Singh, Sarpanch (PW5), who did not support the case of the prosecution, and was declared hostile, Jas Ram, Inspector (PW6), the shadow witness, Daya Ram Yadav, Block Development Officer (PW7), a witness to the recovery, and Darshan Singh, (Retired) Deputy Superintendent of Police (PW8), the Investigating Officer. The prosecution also tendered into evidence the affidavits PC, PD and PE of Constable Ram Kirpal, Head Constable Jagphool Singh, and Constable Om Parkash, respectively. Sanction PR of the District Magistrate, and report PS of Forensic Science Laboratory, Madhuban, were also tendered into evidence by the prosecution. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.