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STATE OF PUNJAB versus BALRAJ SINGH

High Court of Punjab and Haryana, Chandigarh

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State of Punjab v. Balraj Singh - CRM-656-MA-2006 [2006] RD-P&H 12948 (21 December 2006)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Criminal Misc. No.656-MA of 2006

Date of decision: 8.1.2007

State of Punjab ...Appellant

Versus

Balraj Singh ...Respondent

CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL
HON'BLE MR.JUSTICE H.S.BHALLA

Present: Mr.K.S.Boparai, Additional Advocate General, Punjab.

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JUDGMENT

The State of Punjab seeks leave to prefer an appeal against acquittal of respondent of charge under Section 7 read with Section 13(2) of the Prevention of Corruption Act, 1988.

The complainant Dilbagh Singh, agriculturist got mutation of land recorded but Khasra girdwari was not entered as required. For this purpose, he met the respondent, who was posted as halqa patwari, who demanded illegal gratification of Rs.2000/-. The deal was eventually struck for Rs.1500/-. The complainant approached the D.S.P., Vigilance Bureau, Amritsar and handed over 15 currency notes of denomination of Rs.100/- each, which were treated with phenolphthalein powder and returned to complainant after noting down the currency numbers. Raiding party was formed comprising of Rattanjit Singh, shadow witness, Parshotam Singh, E.T.O. and Inspector Karnail Singh official witnesses. The complainant went to the office of the accused and on signal of the shadow witness, vigilance officials raiding party apprehended the accused. Hands of the accused were dipped in the sodium carbonate solution on which solution ****

became pinkish. Amount was recovered from the back pocket of the pant of the accused. Phial was sent to Forensic Science Laboratory. After grant of sanction for prosecution and completion of investigation the accused was sent up for trial. The charge was framed.

The prosecution failed to examine the complainant Dilbagh Singh as a witness to prove the demand and payment of bribe. PW4 Rattanjit Singh, shadow witness did not support the prosecution case and was declared hostile.

Accused denied having demanded or accepted bribe. After considering evidence on record, the trial Court acquitted the accused- respondent on the following grounds:-

i) Dilbagh Singh-complainant did not step into the witness box;

ii) Rattanjit Singh, PW4 shadow witness did not support the prosecution version. He stated that accused was not found available in his office and the complainant met the accused in the house of the Numberdar in village Sirhala but did not hand over money in his presence and not tainted money was recovered in his presence. Reliance was placed on judgment of the Hon'ble Supreme Court in Subhash Parbat Sonvane Vs.State of Gujrat, 2002 Supreme Court Cases (Criminal) 954 = AIR 2003 SC 2169, wherein it was observed that demand of bribe was necessary ingredient of offence under Section 13(1)(d)(i) of the Act and mere recovery was not enough to infer such ingredient.

iii)Version of PW7 DSP Rashpal Singh,Trap Officer and PW3 Parshotam Singh, the recovery witness was not enough to prove demand and acceptance of bribe.

We have heard learned counsel for the State, who submitted that in view of the recovery having been proved, demand and acceptance of bribe should be held to have been been proved. It was also submitted that the trial Court should have used coercive method to procure the presence of ****

complainant.

We are unable to accept the submission. The finding that demand or acceptance of bribe was not proved cannot be held to be arbitrary. Though in a given case, inference of demand and acceptance may be drawn from possession of currency notes by the accused & other circumstances and an accused may be convicted by raising a presumption under Section 20 as held by the Hon'ble Supreme Court in Raghubir Singh Vs.State of Haryana (1974) 4 Supreme Court Cases 560, which judgment was followed in State of Andhra Pradesh Vs. R.Givrattanam, (2004) 6 Supreme Court Cases 488, in the present case, apart from complainant himself having not been examined, the shadow witness denied even the availability of the accused in his office, as per the case of the prosecution and also denied any amount having been paid to him, which version has been accepted by the trial Court.

In appeal against acquittal, interference is called for only when there are strong reasons and the view taken by the trial Court is perverse. In this regard, reference may be made to law laid down by the Hon'ble Supreme Court in Ajit Savant Majagavi Vs.State of Karnataka AIR 1997 Supreme Court 3255, which are as under:- "13. There was quite a controversy among the Courts with considerable divergence of judicial opinion as to the scope of appeal against an order of acquittal. This controversy remained unabated till some guideline was indicated by the Privy Council in Sheo Swarup V. King Emperor (1934) 61 Ind App 398 : AIR 1934 PC 227 (2). This decision was considered in Sanwat Singh Vs. State of Rajasthan (1961) 3 SCR 120 : (AIR 1961 SC 715), in which the legal position was explained by this Court as under:-

(1)The evidence upon which the order of acquittal was passed by the trial Court can be reviewed, reappreciated and reappraised by the Appellate Court.

(2)The principles laid down by the Privy Council Sheo ****

Swarup V. King Emperor, LR 61 Indian Appeals 398 (Supra) provide correct guidelines for the Appellate Court while disposing of the appeal against the order of acquittal.

(3)The words "substantial and compelling reasons", good and sufficiently cogent reasons" or "strong reasons" used by this Court in its various judgments do not have the effect of curtailing power of the High Court to reconsider, review or scrutinise the entire evidence on record so as to come to its own conclusions in deciding the appeal against an order of acquittal.

14. As a matter of fact, the powers of the High Court are not different from its powers in an ordinary appeal against conviction. The additional burden which is placed on the High Court is that it has to consider each of the grounds which had prompted the trial Court to pass the order of acquittal and to record its own reasons for not agreeing with the trial Court.

15. In State of Uttar Pradesh Vs. Samman Das, AIR 1972 SC 677 : (1972) 3 SCR 58, this Court again reiterated the above principles and pointed out that there were certain cardinal rules which had alaways to be kept inview in appeal against acquittal. It was pointed out that there is a presumption of innocence in favour of the accused especially when he has been acquitted by the trial Court. It was further to be kept in view that if two views of the matter are possible, the view which favours the accused has to be adopted. The Appellate Court has also to keep in view the fact that the trial judge had the advantage of looking at the demeanour of witnesses and that the accused is still entitled to the benefit of ****

doubt. The doubt should be such as a rational thinking person will reasonably, honestly and conscientiously entertain and not the doubt of an irrational mind. [See also : Sohrab Vs.

State of Madhya Pradesh, (1973) 1 SCR 472; (1972) 3 SCC 751: AIR 1972 SC 2020; Ediga Sanjanna V. State of Andhra Pradesh, (1976) 2 SCC 210 :(AIR 1977 SC 785) : Satbir Singh V. State of Punjab, (1977) 3 SCR 195 : (1977) 2 SCC 263 : ( AIR 1977 SC 1294); Chandrakanta Devnath Vs. State of Tripura (1986) 1 SCC 549; 1986 Cri L.J. 809: (AIR 1986 SC 606); G.B.Patel V.State of Maharasthra, AIR 1979 SC 135; Awadesh V.State of Madhya Pradesh, (1988) 3 SCR 513 : (1988) 2 SCC 557 : (AIR 1988 SC 1158) ; Anokh Singh Vs. State of Punjab, 1992 (Supp) 1 SCC 426 : (1992 AIR SCW 235); Gajanan Amrut Gaykwad V. State of Maharashtra 1995(supp) 3 SCC 607:( 1996 AIR SCW 2665); Ram Kumar V. State of Haryana, AIR 1995 SC 280: (1994 AIR SCW 4441): Betal Singh V. State of Madhya Pradhesh (1996) 4 SCC 2031].

16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court. These principles have been set out in innumerable cases and may be reiterated as under:- (1)In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers, it possesses while hearing an appeal against an order of conviction.

(2)The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in ****

other words, perverse.

(3)Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.

(4)In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court.

(5)If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.

(6)The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness box.

(7)The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused."

Again in Jaswant Singh v. State of Haryana, AIR 2000 SC 1833, the Supreme Court observed as under:- "21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are compelling and substantial ****

reasons for doing so. If the order is clearly unreasonable it is a compelling reason for interference (see Shivaji Sahabrao Bobade v. State of Maharashtra, (1973 Cri LJ 1783)). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225: 1996 AIR SCW 2438: AIR 1996 SC 2035 (1996) Cri LJ 2867):

"While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions.

(See also George v. State of Kerala, (1998) Cri LJ 2034: 1998 AIR SCW 1255: (AIR 1998 SC 1376).]."

Reference may also be made to the judgment of the Hon'ble Supreme Court in Budh Singh and others Vs. State of U.P. (2006) 9 Supreme Court Cases 731, wherein it was observed as under:- "Before adverting to the rival contentions of the parties, it will be beneficial to remind ourselves about the established principle of law that the High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although, the view of the appellate court is a more probable one. It is, however, true that the High Court, while dealing with a judgment of acquittal, is free to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial Judge are perverse or otherwise bad in law. The appellate court shall also be entitled to take into consideration as to whether in arriving at a finding of fact, ****

the trial Judge has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny by the appellate court.

10.In Balak Ram Vs. State of U.P. this Court has held : (scc P.

236, para 59).

"59 The aforesaid discussion of the various items of evidence must at least yield the result that the conclusion to which the learned Sessions Judge came was a reasonable conclusion to come to. It cannot be denied that two views of the evidence are reasonably possible in regard to the participation of Nathoo, Dr. Kohli and Banney Khan. The High Court, therefore, ought not to have interfered with the judgment of the Sessions Court in their favour."

11. In Shamhoo Missir v. State of Bihar it was held: (SCC pp.20-21, para 6)

"6. The High Court did not deal with any of these circumstances pointed out by the trial court and has given no reasons to negative them or to show as to how they were either improper, unjustified or unreasonable. We are, therefore, of the view that the High Court has interfered with the order of acquittal passed by the trial court not only for no substantial reasons but also by ignoring material infirmities in the prosecution case."

12. Yet again in Shailendra Pratap v. State of U.P. the law was laid down in the following terms: (SCC p. 766, para 8) "8. Having heard learned counsel appearing on behalf of the parties, we are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was a reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that the ****

appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."

13. In Narendra Singh v. State of M.P., wherein one of us (Sinha, J.) was a party, it was categorically held that the Court must bear in mind the presumption of innocence of the accused in setting the law. The said view has been reiterated in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra in the following terms: (SCC p. 316, para 35) "35. Presumption of innocence is a human right. (See Narendra Singh v. State of M.P. , SCC Para 31.) Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefore. Sub-section (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the Public Prosecutor to oppose an application for release of an accused appears to be reasonable restriction but clause (b) of sub-section (4) of Section 21 must be given a proper meaning." In view of above discussion, we are of the view that a case for grant of leave to appeal against the judgment of acquittal has not been made out.

Application for leave to appeal is dismissed.

(Adarsh Kumar Goel)

Judge

January 08 ,2007 (H.S.Bhalla)

Pka Judge

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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