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CASE NO.: Appeal (crl.)  110 of 2006

PETITIONER: Om Parkash                                                       

RESPONDENT: State of Haryana                                                 

DATE OF JUDGMENT: 17/01/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Arising out of SLP (Crl.) No. 4709 of 2005]

S.B. SINHA,  J :

       Leave granted.

       The Appellant along with one Umrao Singh was convicted for  commission of an offence purported to be under Section 12 of the  Prevention of Corruption Act (for short "the Act") and sentenced to undergo  rigorous imprisonment for a period of one year and to pay a fine of Rs.  3000/- each.  On an appeal preferred thereagainst the High Court, however,  reduced the sentence to six months as against the Appellant and the sentence  awarded to Umrao Singh was reduced to the period already undergone.         The fact of the matter is as under:

       One Ganeshi Lal, Inspector (PW-2) was investigating the case under  Section 302/201 of the Indian Penal Code arising out the First Information  Report No. 45 dated 19.2.1992 wherein one Kallu Ram resident of Village  Rampura was murdered.  Allegedly, Umrao Singh and his family members  were suspected to be involved in the said case.  The prosecution case is that  on 28.5.1992 when Ganeshi Lal, Inspector was present at about 7 a.m. at his  residence, the Appellant and the said Umrao Singh came to his house and  offered him a sum of Rs. 10,000/- with a request that he should help them in  connection therewith.  Ganeshi Lal allegedly refused to accept the money  stating that he was not in a position to help them but on their insistence he  accepted the same in presence of Head Constables Mahabir (PW-3) and  Abdul Subhan Khan (Not examined).  He allegedly sealed the same in a  parcel and prepared a memo on the basis of which a First Information Report  was recorded by one Nathu Ram, Inspector, Police Station Narnaul.  The  Deputy Superintendent of Police (DSP), Headquarter thereafter came to his  residence, recorded the statement of the witnesses and took into possession  the said sealed parcel.  Upon investigation, the Appellant with Umrao Singh  were charged under Section 12 of the Act.  Upon completion of the  investigation, a chargesheet was filed and the Appellant and the said Umrao  Singh were put on trial.   

       The case of the defence, however, was that in connection with the  aforementioned murder of Kallu Ram, as some of their relatives were  accused, they came to court.  They were carrying more than Rs. 10,000/-  with them.  The complainant snatched the said amount from their hands and  when threatened by them that if they would not receive back the amount, the  matter would be reported  to the higher-ups, the aforementioned false case  was thrust upon them.

       Mr. Uday Umesh Lalit, learned senior counsel appearing on behalf of  the Appellant, took us through the evidences of the prosecution witnesses

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and submitted:

(i)     There is a delay in lodging of the First Information Report. (ii)    The prosecution witnesses have contradicted themselves as regard  mode and manner of the sealing of the parcel. (iii)   There was no reason as to why the DSP should have come to the place  of occurrence at about 11.30 a.m. only i.e. after more than four and  half hours. (iv)    In view of the discrepancies in the statements of the prosecution  witnesses, the defence version cannot be said to be wholly  improbable.

       Mr. Rajeev Gaur Naseem, learned counsel appearing on behalf of the  State, on the other hand, submitted that the delay in lodging the First  Information Report cannot itself be a ground to throw away the entire  prosecution case.  The learned counsel submitted that prosecution case has  satisfactorily been proved in view of the evidences adduced on behalf of the  prosecution.

       The prosecution in support of its case examined three witnesses.  Ganeshi Lal (PW-2) is the complainant.  According to him, after accepting  the money, he prepared a sealed parcel bearing the seal of GLY.  He further  stated that the DSP, Shri Jagwant Singh (PW-4) came to his residence and  recorded the statement of other witnesses and also recorded his  supplementary statement.  The DSP further took into possession the sealed  parcel containing currency notes.  In his cross-examination, he, however,  could not give details about the principal suspects in the aforementioned  murder of Kallu Ram.  He also could not say how many suspected persons  he had interrogated and how many of them were called by him in connection  therewith.  Even he could not give the number of such suspects interrogated  and detained by him.  He accepted that Sham Singh, son of the deceased was  chargesheeted in the said case.  He further accepted that although he had  interrogated Umrao Singh and his relations in the presence of villagers, it did  not give rise to any suspicion against them as otherwise he would have  arrested them.  He accepted that the Appellant had met him earlier.  He  further admitted that the DSP came around 11.30 a.m. and till then allegedly  everybody remained at the spot.  The accused persons were not arrested by  him but according to him were arrested by the DSP.  The DSP remained at  the spot upto 2.30 p.m.  Admittedly, the DSP did not sign the sealed packet.   The Police Station, Narnaul was at a distance of only 50 yards from his  residence and office of CIA was at a distance of two kms. from bus stand  Narnaul.  It has further been accepted that no entries about the coming and  going of the prosecution witnesses were made in roznamcha in CIA.   

       PW-3 is a Head Constable.  He alleged:

"\005Inspector said that giving bribe as an offence and they  said that he would do justice.  Then he took the currency  notes into possession after turning it into a sealed parcel  vide memo Ex. PB.  I signed the memo.  Then Inspector  wrote a rukka and sent Abdul Subhan Khan to the S.P.  Office.  Abdul Khan returned after giving the rukka in the  S.P. Office.  Thereafter, DSP headquarter came there.  He  recorded our statements, took the sealed parcel containing  notes vide recovery memo Ex. PD."

       In his cross-examination, he accepted that there was a telephone in the  policeline and also in the police station.  He further admitted that he had not  made entry in the roznamcha regarding his visit to the house of Inspector  Ganeshi Lal.  He had also not made any entry after his return to the police  station.  He further stated:

"The DSP had taken the parcel into possession after  thoroughly checking it and counting it, and he put GLY seal

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again on it.  The DSP remained at the spot for a period of  about 5-6 hours, i.e., upto 2.15 p.m. or so\005"

       If the DSP had come to the place of occurrence at about 11.30 and left  at about 2.30 p.m. evidently he did not remain at the place of occurrence for  a period of six hours.

       PW-4 is the DSP.  According to him, he only took into possession of  sealed parcel containing Rs. 10,000/-.  In his cross-examination, he accepted  that he did not record the statement of Inspector, Ganeshi Lal nor did he feel  the necessity of re-verifying the investigation done by Ganeshi Lal because  he had already recorded the statement of other five witnesses and  interrogated the accused.  

If Ganeshi Lal was the complainant, ordinarily his statement should  have been taken.  He further stated:

"\005I did not feel it necessary to ask the purpose from the  witnesses Abdul Khan and Mahabir nor did I check their  departure from the roznamcha of CIA staff.  I believed  whatever they told that they have come for some official  work.  I correctly recorded the statements of Abdul Subhan  Khan and Mahabir including marked portion A to A of Ex.  DA.  I cannot explain the omission\005"

There was, thus, even no proper investigation.

       The learned Special Judge in his judgment noticed that the First  Information Report was recorded around 11 O’Clock and it reached the  Court of Chief Judicial Magistrate after three and half hours.  The learned  Special Judge, as regard the correctness of the defence, surmised:

"\005As we know, in India, every officer particularly Police  Officers are taken with doubtful eyes, in the public works.   But, it cannot be said that in every case, the police had acted  malafidely.  This is to be seen from the evidence whether the  case against the accused is made up malafidely or not.  As  both the accused were suspected in murder case.  It is  possible for any person who suspected in a criminal case to  approach the police officer with the money to scare him  away from the police challan.  As it is known to every  person that police officials are not honest.  Even the other  officials or officers are not honest what to talk of police  officers.  Alike it, general public at large cannot be said to  be so honest and the said persons can approach the police  officers or officials.  This is how the accused might have  reached in the office of Inspector Ganeshi Lal with the  money.  The persons living in India particularly in Northern  India have become so much daring that they can come to the  officers or officials and they can offier the bribe in the  presence of other officials.  Head Constable is nothing but a  straw as against Inspector Ganeshi Lal because he is always  under the thumb of Inspector.  I had seen the Inspector in the  court while he had appeared in the court as a witness.   Though, he was dressed properly but it cannot be said that  inspector was habitual in accepting the bribe."

       The High Court was of the opinion that in view of the fact that the  defence in support of its version did not adduce any evidence and in those  circumstances the version of the prosecution witnesses cannot be thrown  away merely on the ground that they are official witnesses and no

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independent witness was associated.

       The High Court unfortunately did not advert to the evidence of the  prosecution witnesses in details nor did it consider the salient features of the  case.           It is not in dispute that the offence took place round about 7 O’ Clock  in the morning.  The police station was about 50 yards away from the  policelines where PW-2 used to reside.  It further stands admitted that the  telephone services were available both at the civil lines as also the police  station.  No attempt was made by PW-2 to inform the SHO of the police  station immediately.  The First Information Report was admittedly lodged  after a long delay.  Having regard to the distance of the police station as well  as the CIA Office, we fail to understand as to why the DSP could come to  the place of occurrence only at about 11.30 a.m.  We further fail to  comprehend as to why the DSP had remained at the spot for about three  hours.  It is also difficult to understand as to why the statement of Ganeshi  Lal was not recorded by the DSP.  Ganeshi Lal himself said that his  supplementary statement had been recorded by the PW-4, but the same was  not produced in court.  

From the records, it appears that whereas according to PW-2, the sum  of Rs. 10,000/- was put in a packet and sealed with GLY seal, according to  PW-3 the DSP on his arrival opened the said packet, counted the money and  put the same again in a packet and sealed the same.  The DSP (PW-4) did  not make any such statement in this behalf nor explained the discrepancies  in the statement of PW-2 and PW-3.

No explanation was furthermore offered as to why all parties  including the accused persons remained at the spot till 11.30 a.m. although  no FIR was lodged.  Admittedly, Ganeshi Lal although was not authorized to  make any investigation, did so.  The accused persons also had not allegedly  been arrested but were not allowed to leave the place either.   Why they were  not taken immediately after the occurrence  to the police station is a mystery.

In a situation of this nature, the accused should have been taken to the  police station immediately.  Out of the two witnesses in whose presence the  amount was offered, Abdul Subhan Khan was not examined.  The reason for  his non-examination had not been explained by the prosecution.  Moreover,  the said witnesses although were allegedly present at the place of occurrence  on official duties, the fact as to why two Head Constables at a time from the  same police station would go to the residence of an Inspector at about 7 O’  Clock in the morning has not been disclosed.  The entries in their roznamcha  for going to the residence of informant have not been produced.  Admittedly,  no entry in the roznamcha has been made even on their return to the police  station.   

The first informant and the witnesses are not ordinary people.  They  were Inspector and Head Constables attached to a police station.  They are  presumed to know the implications of a criminal case.  They are, thus, also  presumed to know that the First Information Report unless lodged at the  earliest possible time may give rise to a suspicion about the correctness of  the entire occurrence.   

In view of the aforementioned discrepancies in the prosecution case,  we are of the opinion that the defence story set up by the Appellant cannot  be said to be wholly improbable.  Furthermore, it is not a case where the  burden of proof was on the accused in terms of Section 20 of the Act.  Even  otherwise, where demand has not been proved, Section 20 will also have no  application.  [Union of India Thr. Inspector, CBI v. Purnandu Biswas, 2005  (8) SCALE 246 and T. Subramanian v. State of Tamil Nadu, [2006 (1)  SCALE 116].           For the reasons aforementioned, we are of the opinion that the  Appellant is entitled to benefit of doubt and, thus, the judgment of

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conviction and sentence passed against the Appellant is set aside and he is  acquitted.  If the Appellant is on bail, he is discharged from his bail bond.   Accordingly, the appeal is allowed.