Kewal Singh v. State of Punjab’s & Anr.

in FIR No.40 dated 29.10.1999 registered at Police Station Vigilance Bureau, Ferozepur Range, Ferozepur. However, he was acquitted vide judgment dated 28.7.2006 passed by the Sessions Judge, Ferozepur. Aggrieved by the same, Kewal Singh-complainant has filed the present revision petition under Section 401 of the Code of Criminal Procedure . Prosecution case, as noticed by the trial Court in para Crl.Rev.No.2022 of 2006 (O&M) 2 No.2 of its judgment, is reproduced herein below:- “ Briefly stated the case of the prosecution is that Kewal Singh complainant remained Sarpanch of village Kabar Wachha from 1993 to 1998. During that period a grant of Rs.3,72,000/- was received from the government for repair of the streets and drains in the year 1993-94/. In 1996, grant of Rs.1,00,000/-for school building was received. He had spent that amount for the purpose for which the same was granted. Some of the villagers lodged a complaint before the BDPO against him. Harbhajan Singh was deputed to verify the work done by Kewal Singh complainant. On the basis of the measurements and the report, his work was found to be satisfactory and the report was given in his favour. Copy of the same was given to him and another copy was sent to the Director Panchayat, Chandigarh. However, some mischievous elements again lodged the report against the complainant. Gurbachan Singh deputed one SDO to again verify the work done by him. He was not joined in the fresh measurement and inquiry. The complainant told accused Gurbachan Singh BDPO that the measurement and verification has already been done and has been found in order. The accused told the complainant that he was not agreed with the said measurement and enquiry. Crl.Rev.No.2022 of 2006 (O&M) 3 The accused demanded Rs.5,000/- from the complainant as illegal gratification for giving a favourable report. However, the settlement was made at Rs.2,000/-. The complainant told the whole story to his co-villager Mohinder Singh son of Hakam Singh Jat Sikh resident of village Kabar Wachha, who suggested him to contact the vigilance department. Then, the complainant along with Mohinder Siongh went to the office of DSP Vigilance Ferozepur on 29.10.1999 and the DSP Vigilance recorded his statement Ex.P-13. DSP Sukhdev Singh sent the statement of Kewal Singh in writing through Constable Surinderjit Singh No.590 to ASI Pardeep Singh who entered daily diary rapat No.4, dated

29.10.1999 and made endorsement Ex.P-13/A which bears his signatures. FIR Ex.P13/B was recorded on the said report. Two currency notes of the denomination of Rs.500/- each and ten notes of the denomination of Rs.100/- each were handed over to DSP Sukhdev Singh. He noted down the numbers of the notes vide memo Ex.P-14. Then, he demonstrated as to how solution of Chemical turns pink when it is mixed with phenolphthalein powder. The DSP applied phenolphthalein powder on the currency notes and handed over the said notes to complainant Kewal Singh. The complainant was Crl.Rev.No.2022 of 2006 (O&M) 4 instructed that as and when the accused would demand and accept the said currency notes, he should not shake hands with the accused before or after handing over the said currency notes to the accused. Surinder Singh SDO Horticulture Office was joined as official witness and then the raiding party started for conducting the raid. The complainant along with Mohinder Singh went inside the office and handed over the said currency notes to the accused, when demanded by him. Mohinder Singh came out of the office and gave the signal to the raiding party as earlier instructed. The accused took the money and placed the same in the file cover and placed the same in the second drawer of his table on his left side. It was yellow colour file on which words 'personal' were written. The file cover is Ex.P-15. When Mohinder Singh gaved the signal, the raiding party entered the office of the accused. Then, solution of sodium carbonate was prepared and the hands of official witness Surinder Singh were got washed in the same, but the colour did not turn pink. Thereafter, both hands of accused were got washed in the glass of solution and solution turned pink. The solution was put into a nip which was sealed with the seal bearing letters SS and the same was taken into police possession vide memo Ex.P-10. As per directions Crl.Rev.No.2022 of 2006 (O&M) 5 of the DSP, the accused handed over the currency notes to him. The number of the currency notes were tallied with the memo earlier prepared and the currency notes were taken into police possession vide memo Ex.P-11. The personal search of the accused was also conducted which led to the recovery of one black purse, currency notes of Rs.550/-, one Titan watch with golden dial and brown strap, which were taken into police possession vide memo Ex.P-12. The site plan of the place of recovery and its surroundings was prepared by the DSP which is Ex.P-16. The accused was arrested. After completion of the investigation, the challan was put in the court." After hearing learned counsel for the parties, I am of the opinion that this petition deserves to be dismissed. Learned trial Court, after appreciating the evidence led by the parties on record, has observed as under:- "25. Admittedly, there is no evidence on the file to prove the posting of the accused on 29.10.99 as BDPO Ghal Khurd. The statement of PW1 Surjit Kaur Bill Clerk is not to this effect. Similarly statement of PW2 Hartirath Singh Superintendent BDPO Office Ghal Khurd is to the effect that the accused has retired on 31.5.2000. From the statements of both the PWs it is not proved that the accused was posted as BDPO on 29.10.99 at Ghal Crl.Rev.No.2022 of 2006 (O&M) 6 Khurd when the trap was laid down. Though it is a technical point. Otherwise, from the other evidence, it is established that the accused was posted as BDPO at Ghal Khurd at the relevant time because the accused has examined witnesses in defence to this effect that he had sent letters to the Director Panchayat and also received the letters. Yet it was on the prosecution to establish this fact.

27. Admittedly, trap was laid down by DSP Sukhdev Singh who is in the investigating Officer of this case. The prosecution has failed to examine him. So, the prosecution case is also not proved without his statement.

28. Admittedly, the trap was laid down at the instance of Kewal Singh Sarpanch PW7. His character is also shaky. The allegations against him are that he has misappropriated the panchayat funds. The penalty was also imposed upon him. He was suspended due to these allegations. While appearing as PW7, he has himself admitted that it is correct that a penalty of Rs.3,77,627/- was imposed upon him on the report of the SDO. He has also admitted that it is correct that his appeal upto the Director for the said penalty was dismissed. He has also admitted that it is correct that in 1999 Director Panchayat had written a letter to BDPO Ghal Khurd for making Crl.Rev.No.2022 of 2006 (O&M) 7 assessment of mis-appropriation if any made by him. He has also admitted that it is correct that he had stated before the police that assessment of work from 1993 to 1998 made by him be got conducted from SDO.

29. This witness has a specific motive to falsely implicate the accused. It is evident from the cross- examination of PW7 Kewal Singh, wherein he has stated that it is correct that he approached the accused and asked him that his case has already been finally settled by BDPO and he should not make new assessment. It is correct that accused did not accede to his request and told that he has been directed by the higher authorities to make assessment. He requested the accused for not making new assessment twice or thrice prior to the trap. It is correct that he was annoyed with the accused as he was not acceding to his request for not making new assessment. The witnesses against the accused are inimical and interested one. No independent witness was joined though independent witnesses were available. From the statement of PW9 Mohinder Singh, it is evident that official staff of BDPO was present there, but none of the witnesses was joined in the raiding party.

30. The discrepancies in the statements of prosecution witnesses also make the case of the Crl.Rev.No.2022 of 2006 (O&M) 8 prosecution doubtful. It leads to draw the conclusion that nothing was done at the spot and work was done while sitting in the office of SP Vigilance Ferozepur." During the course of arguments, learned counsel for the petitioner has failed to point out any mis-reading of evidence by the trial Court. The reasons given by the trial Court, while acquitting respondent No.2 of the charge framed against him, are sound reasons. It has been held by the Apex Court in Satyajit Banerjee vs. State of West Bengal (ST), 2004 (10) JT 27 that direction for de novo trial could be given in extraordinary case where Court was convinced that entire trial was farce. Revisional jurisdiction against the order of acquittal at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice. The present case does not warrant retrial. As per Section 401 (3) of the Code of Criminal Procedure, a finding of acquittal cannot be converted into a finding of conviction by this Court. Accordingly, this revision petition is dismissed. February 05, 2010 SABINA) JUDGE