Delhi District Court
Cbi vs . Bhagwan Jethwani on 27 January, 2016
1
IN THE COURT OF SH. SANJEEV AGGARWAL SPECIAL JUDGE
CBI03 (PC ACT) DELHI
CC No.06/14 RC : 66(A)/1995
PS : CBI/ACB/ND
U/s : 7 & 13(1)(d) r/w 13(2)
of PC Act 1988 of PC Act
CBI Vs. Bhagwan Jethwani
S/o Late Sh.Diwan Dass Jethwani
R/o Flat no.2704, Plot no.7, Sector6,
Gyan Shakti Apartments, Dwarka,
New Delhi75.
Date of Institution : 30.10.2014
Judgment Reserved : 18.01.2016
Judgment Delivered : 27.01.2016
J U D G M E N T
1. Brief facts are that one Anil Koshal made a complaint Ex.PW2/A to Superintendent Police, CBI, ACB branch, New Delhi dated 07.08.1995 stating as under: On 20.07.95 their meter got burnt due to heavy sparking at pole outside their factory and immediately the complaint was made to the concerned department alongwith the copy of the last paid bill also. (The photostat of our RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 1 of 52 2 application is being enclosed). The registration number of their complaint was given as 593 dated 21.07.95.
After that their people went on with their efforts to get it changed but their Area Inspector Mr.Jethwani avoided it till date by one excuse or the other to harass them and told their employee that your employers are bad paymasters and he shall make them to pay through their nose. He knows how to extract money.
On August 7, 1995 in the evening he met him and requested for early action on this issue. Mr. Bhagwan Jethwani demanded Rs.25000/ for this change of meter and directed him to pay the bribe amount by August 8, 1995 at 11.30 hrs. and he will collect the amount from his factory office.
2. On the basis of said complaint, RC No.66(A)/1995 was registered on same date against the accused, who was then RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 2 of 52 3 working as Inspector in Delhi Electricity Supply Undertaking (DESU), Nangloi. The said FIR was registered u/S 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act) after verification of the complaint.
3. Prior to embarking upon the trap/raid, handing over proceedings were conducted in the office of CBI by the Trap Laying Officer, Inspr. Ved Prakash in the presence of two independent witnesses namely Sh. Uday Kumar and Sh.Parmeshwari Dass, both of them were the witnesses from FCI Headquarters, Barakhamba Lane, New Delhi. The complainant was introduced to the abovesaid independent witnesses and written complaint dated 07.08.1995 of the complainant was shown to both the witnesses, who satisfied themselves after going through the same regarding the genuineness of the complaint.
4. On being asked, the complaint produced a sum of Rs.
10,000/ in the form of 100 government currency notes of Rs. 100/ denomination each, numbers of which were noted in the annexure to the handing over memo which was marked as Annexure'A'. The currency notes were treated with phenolphthalein powder and a practical demonstration was RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 3 of 52 4 given by Inspr. R.S.Tokas regarding the reaction of phenolphthalein powder with the freshly prepared solution of Sodium Carbonate by asking SI R.L.Bhatt to touch the treated currency notes with his right hand fingers. Thereafter, he was directed to dip the same in the solution of sodium carbonate. As soon as he did so, the colourless solution turned into pink colour. The said reaction was explained to the independent witnesses that whosoever touches the treated currency notes the particles of phenolphthalein powder will stick to his fingers and when it is dipped in the sodium carbonate solution the colourless solution will turn into pink colour. The remaining phenolphthalein powder was returned to CBI Malkhana. The glass tumbler was washed.
5. The personal search of Anil Koshal was conducted and he was not allowed to carry anything else. The treated currency notes were handed over to Anil Koshal, which he kept in his right side pant pocket. He was instructed to hand over the money to the accused on his specific demand of bribe money. The independent witness Sh.Uday Kumar was directed to act as a shadow witness by posing himself as a customer in order to overhear the conversation between the complainant and the RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 4 of 52 5 accused and also to see the transaction. Sh.Uday Kumar was directed to give a signal to the trap team by scratching his head by both hands.
6. A trap kit containing various articles for conducting the trap was taken. Personal search of all the trap team members were conducted and all the trap team members washed their hands before leaving the CBI office. The said memo was concluded on 08.08.1995 at 9.30 A.M and all the members of trap including the independent witnesses and the complainant put their signatures on the said handing over memo before embarking upon the raid.
7. Thereafter, CBI team left for the destination i.e. office of complainant which was situated in Nangloi, Delhi where all the respective CBI team members took their respective positions and the complainant and the independent witnesses also took their respective positions in proximity.
8. Around 12.30 P.M on 08.08.1995 accused Bhagwan Jethwani alongwith one another person, whose name was later on disclosed as Hari Chand, came to the office of the complainant. Thereafter, accused enquired from the complainant regarding the identity of the shadow witness Uday RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 5 of 52 6 Kumar, to which the complainant stated that he was his customer. Thereafter, there was a conversation between the complainant and the accused. The accused stated that he became late and he had talked with his department regarding the change of his electricity meter, to which the complainant stated that he was suffering heavy losses, therefore the same may be replaced at the earliest. To which, the accused replied that he had come as discussed yesterday and after taking the money he will do the work at the earliest.
9. Thereafter, the accused asked the complainant to walk into the inner room of his office, where both of them went and the other witness was asked not to follow them by the accused. In the inside room, the accused asked the complainant as to how much money he had brought, to which he stated that Rs. 10,000/. On his demand Rs.10,000/ was taken out by the complainant from the right side pocket of his pant and was handed over to the accused which he took in his right hand and he also stated that remaining amount of Rs.15,000/ be given to him after the work is done. Thereafter, suddenly the accused saw many persons coming to his office. On seeing so, he put Rs.10,000/, which he was holding on his hand, on RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 6 of 52 7 the table which was lying in front of them, thereafter he tried to go out of the room, but he was caught hold by Mr.Bhatt and Mr.Ahmad from his wrist and the other person accompanying him was also caught hold by Mr. Tokas and Mr. Lohmor and they introduced themselves to the accused as well as to his companion and told that he had taken a bribe of Rs.10,000/ from the complainant, to which both of them became silent. The independent witness Uday Kumar corroborated the version of the complainant that accused Bhagwan Jethwani had taken Rs.10,000/ from the complainant with his right hand and he put the same on the table on seeing the raiding party.
10. Thereafter, another witness Parmeshwari Dass was asked to lift Rs.10,000/ from the table, thereafter both the independent witnesses tallied the numbers of the currency notes with the numbers written in the handing over memo and on doing so, the numbers were found to be correct.
11. Thereafter, a solution of sodium carbonate was prepared in a glass tumbler and the accused was asked to put his right hand finger into the solution, on doing so, the said sodium carbonate solution turned into pink colour. The said solution was poured into a bottle and was sealed with the seal of CBI.
RC NO. 66(A)/1995
CBI vs. Bhagwan Jethwani 7 of 52
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The said bottle was wrapped with cloth and a paper was affixed on the said bottle wherein both the independent witnesses put their signatures. On separate paper, the specimen of the seals were taken. Personal search of Bhagwan Jethwani and Hari Chand were taken. On doing so, from the possession of accused Jethwani, documents pertaining to the meter were also recovered. The scooter of accused Bhagwan Jethwani was also searched. Site plan was prepared on the spot. Thereafter, recovery memo was also prepared wherein all the members of the raiding party as well as the complainant and the independent witnesses put their signatures, as also the companion of the accused Hari Chand. Thereafter, IO recorded statements of all the witnesses.
12. However, instead of chargesheeting the accused, a closure report was filed by the CBI on the ground that their further investigation had revealed that when the conversation took place between the complainant and the accused, the shadow witness Uday Kumar was outside and he neither clearly overheard the conversation, nor he saw the alleged transaction between the complainant and the accused and on the basis of the record and statement of this witness, there is RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 8 of 52 9 no specific demand of bribe by the accused which is corroborated by the witnesses. The most important fact being there is no one who had overheard the conversation nor had witnessed the transaction between the accused and the complainant which took place inside the office room of the complainant. However, the said closure report was rejected by the then Special Judge, Delhi, vide order dated 04.05.2002, which is reproduced as under : " It is true that recovery memo and the statement of the complainant and shadow witness indicate that during the course of trap accused had taken the complainant to another room where, as per the statement of the complainant, demand was repeated and on the trap money being tendered by the complainant, accused accepted it with his right hand. It is also borne out from the material on record that at the time of RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 9 of 52 10 this conversation/transaction, shadow witness was in adjoining room. Shadow witness does admit in his statement that he was unable to overhear the conversation that took place in the adjoining room but he is positive and categorical in his statement that he had seen the accused accepting the money from the complainant in the said adjoining room. On being asked as to what is the basis of conclusion of the investigating agency that the shadow witness had not been able to see handing over the bribe money, learned prosecutor and Insp. Om Parkash are unable to show any such material. The positive statement of shadow witness that he had seen the said transaction of acceptance of the RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 10 of 52 11 bribe money by the accused from the complainant, though in the adjoining room, cannot be brushed aside in the manner it has been done in the closure report. There is corroboration also available in the form of hand wash followed by CFSL reported dated 05.09.95."
13. Thereafter, in compliance of directions of Ld.Spl.Judge directing further investigations, another closure report was brought by the CBI which was dated 29.10.2014 after a lapse of 12 years.
14. CBI in its latest closure report stated that during the course of further investigation(s), Sh.Uday Kumar, who was acting as a shadow witness, was again examined, who stated in his statement dated 28.05.2014 that, when the actual alleged transaction of trap took place between the accused and the complainant, he was sitting outside the room and the complainant and the accused had gone inside to the inner office of the complainant. There was some conversation also, RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 11 of 52 12 but he could not hear the same due to low volume of the voices and he also could not see the transaction due to his position in the other room. On the basis of said supplementary statement dated 28.05.2014, another closure report was filed by the CBI.
15. Vide order dated 10.02.2015 of this Court, it was found that on perusal of the FIR, documents, memo(s) and statement of witnesses recorded under Section 161 Cr.P.C, there was sufficient material on the record to proceed against the accused for the offence(s) punishable under Section 7 and Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (wrongly typed in the order dated 10.02.2015 as Section 13(1)(a) r/w Section 13(2) of Prevention of Corruption Act, 1988) and consequently, the closure report filed by the CBI under Section 173(8) Cr.P.C was rejected. Since the accused had already retired from the service, no sanction for his prosecution was required.
16. Vide detailed order on charge dated 02.05.2015, charge(s) u/S 7 and 13(1)(d) r/w Section 13(2) of the PC Act were framed against accused Bhagwan Jethwani, to which he pleaded not guilty and claimed trial.
RC NO. 66(A)/1995
CBI vs. Bhagwan Jethwani 12 of 52
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17. Thereafter, prosecution in support of its case, has examined six witnesses.
18. PW1 Sh.Uday Kumar was the shadow witness. He has not fully supported the case of prosecution and he was declared hostile by Ld.PP for CBI and cross examined by Ld.PP for CBI as well as by the defence.
19. PW2 Sh.Anil Koshal is the complainant, who also did not fully supported the case of prosecution and was declared hostile by Ld.PP for CBI and was extensively cross examined by Ld.PP for CBI as well as by the defence.
20. PW3 is Sh.K.S.Chabra, Sr.Scientific Officer, GradeI, CFSL, who has proved the report regarding right hand wash of the accused vide Ex.PW3/A.
21. PW4 is Sh.Manoj Kumar, who had taken up the further investigation of this case in year 2011 and filed the final closure report on which cognizance was taken.
22. PW5 is Sh.Rafiq Ahmad, one of the member of trap team.
23. PW6 is Sh.R.V.S.Lohmor, also a member of raiding team.
24. The Trap Laying officer Inspr. Ved Prakash was RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 13 of 52 14 summoned, but it was reported that he had unfortunately died on 17.07.2000. Similarly, another member of the raiding team Sh.R.S.Tokas had also expired. Independent witness Parmeshwari Dass could not be traced by the prosecution despite its best efforts.
25. After closing of the prosecution evidence, the statement of accused u/S 313 Cr.P.C was recorded in which the entire incriminating evidence which had come on record against the accused was put to him, to which he stated that in year 1995 he was posted as Inspector in DESU, his office had received application from Anil Koshal for replacement of his burnt electricity meter in July 1995, which was sent to him through official process and he had sent on 02/08/1995 to concerned MTD Department with approval who was responsible for replacing the meters, thereafter his duty was over. On 07/08/1995 in evening on his landline phone one person called him and introduced as Anil Koshal and requested him for meeting but he refused. On 08/08/1995 he along with his team were on duty for replacing a Transformer in the area on a distance of about 500 meters from the factory of Complainant where a person came and started inquiring about him from his RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 14 of 52 15 juniors and in turn his junior introduced said person to him. That person informed that he was an employee of the complainant and repeatedly requested him to visit the factory of the complainant as complainant was willing to meet him and even he refused the employee, as he was busy with his work and during the course of replacing transformer with his team his clothes became so dirty with oil and dust but he kept on requesting him, so he told his team to wait and take rest form few minutes till he come back and he visited the factory and there he hardly talked with complainant for one minute for the first time and through out conversation he stood outside the door of his office and never stepped into any room due to ugly clothes and suddenly two person surrounded him and introduced themselves as CBI officer.
26.Neither he had demanded any money from the complainant nor any he had taken any money from the complainant and no money had been recovered from him. He never met Anil Kaushal before 08/08/1995 and after that day. On 08/08/1995 his both hands were full with transformer oil and dust and after seeing it CBI Officials had not taken his hand wash and the alleged hand wash was not his hand wash. The documents RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 15 of 52 16 stated above were kept inside the basket /dicky of his scooter because his hands were so ugly and full with oil of transformer and dust and it were taken by the CBI officials from the scooter. CBI had thoroughly questioned me and closed this case after detail inquiry. The complainant wanted to settle his personal vendetta against the department DESU and he had been made falsely implicated in the false case as a tool.
27. Thereafter, the accused chose to lead defence evidence and examined three witnesses in his defence.
28. DW1 is Sh.Suraj Bhan Azad, Deputy General Manager, District Nangloi, BSES Rajdhani Power Ltd. He has deposed that BSES is the entity looking after the distribution and supply of electricity in Delhi after the privatization of DESU. He has proved one document as Ex.DW1/1.
29. DW2 Sh.Surender Singh is a formal witness. He has not proved anything.
30. DW3 is Sh.Hari Chand, alleged accomplice of the accused, who was accompanying the accused on the date of trap i.e. 08.08/95.
31. I have heard Sh.V.K.Ojha, Ld.PP for CBI and Sh.S.K.Saxena, Ld. counsel for the accused and gone through RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 16 of 52 17 the material placed on record. Counsel for accused has relied upon the following judgment AIR 2011 SC 608 titled as C.M.Sharma Vs. State of A.P. TH I.P, wherein it was held as under:
"15. We do not have the slightest hesitation in accepting the broad submission of Mr. Rai that demand of illegal gratification is since qua non to constitute the offence under the Act. Further more recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe."
32.He has also relied upon the judgment 2015 CRI. L.J. 4670 titled as P.Satyanarayana Murthy Vs. Dist. Inspector of Police & another, the relevant para(s) of the same are reproduced as under:
" 21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)
(i)&(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 RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 17 of 52 18 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.
22. 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 Sections 17 and 13 of the Act would not entail his conviction thereunder."
33.Counsel for the accused has also relied upon the judgment 1995 CRI. L.J 3988 titled as Megha Singh Vs. State of Haryana, in which was held as under:
4. We have also noted another disturbing feature in this case. PW3 Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of this case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under S 161 Cr.P.C. Such RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 18 of 52 19 practice to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."
34.He has also relied upon the judgment II(2015) CCR 311(SC), the relevant para of the same is reproduced as under:
"12(ii) Complainant(PW6) has himself investigated the crime, as such, the credibility of the investigation is also doubtful in the present case, particularly, for the reason that except the police constables, who are subordinate to him, there is no other witness to the incident."
35.On the other hand, prosecution has relied upon the following judgment 2015 CRI. L.J 3168 titled as D. Velayutham Vs. State, the relevant para of the same is reproduced as under:
"9. It would therefore be a derogation and perversion of the purpose and object of anti corruption law to invariably presuppose that a trap/decoy witness is an "interested witness" with an ulterior or other than ordinary motive for ensuring the inculpation and punishment of the accused. The burden of unquestionably is on the defence to rattle the credibility and trustworthiness of the trap witnesses' testimony, thereby bringing him under the RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 19 of 52 20 doubtful glare of the Court as an interested witness. The defence cannot be ballasted with the premise that Courts will, from the outset, be guarded against and suspicious of the testimony of trap witnesses. We are of the opinion that the law hitherto expressed by this court upholds precisely this exposition."
36.Prosecution has also relied upon the judgment (2015) 2 SCC(Cri) 226, (2015) 3 SCC 220 tilted as Vinod Kumar vs. State of Punjab, wherein it was held as under:
Evidence of Admissibility -
Reiterated, even if a witness is characterised as a hostile witness, his evidence is not completely effaced -Said evidence remains admissible in trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence, as in present case -Evidence Act, 1872, S 154(2).
37.Prosecution has also relied upon the judgment AIR 1962 SC 195 titled as Dhaneshwar Nath Saxena Vs. The Delhi Administration, wherein it was held as under:
"The offence under S. 5 is wider and not narrower than the offence of bribery as defined in S 161 I.P.C. In RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 20 of 52 21 order to bring the charge home to an accused person under cl. (d) of S. 5(1), it is not necessary that the public servant in question, while misconducting himself, should have done so in the discharge of his duty. It would be anomalous to say that a public servant has misconducted himself in the discharge of his duty. "Duty" and "misconduct" go ill together. If a person has misconducted himself as a public servant, it would not ordinarily be in the discharge of his duty, but the reverse of it. It is not necessary to constitute the offence under cl.(d) of the section that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under S. 5(1)(d). It is also erroneous to hold that the essence of an offence under S. 5(2), read with S 5(1)(d), is that the public servant should do RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 21 of 52 22 something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage. (1959) Supp. (2) Supp. (2) SCR 739: AIR 1959 SC 847, Overruled.
38.It has been argued by Ld. PP for CBI that from the testimony of the complainant PW2 Anil Koshal and that of PW1 shadow witness Uday Kumar coupled with the testimony of recovery witnesses PW5 Rafiq Ahmed and PW6 R.V.S Lohmor, the prosecution has been able to prove the demand, acceptance of bribe and recovery of bribe from the accused. He has also argued that PW3 the witness from CFSL has proved that the hand washes sent by the prosecution for analysis were found to be positive for the phenolphthalein and sodium carbonate vide report ExPW3/A. He has also argued that from the testimonies of defence witnesses accused has failed to prove that he is innocent. He has further argued that as per settled law even if accused was not in a position to get the meter replaced as it was the job of meter testing department, even then as per definition of Section 7 of PC Act the accused was clearly culpable and was liable to be convicted.
39. He has further argued that merely because PW1 Uday Kumar RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 22 of 52 23 and PW2 Anil Koshal were declared hostile by the prosecution does not in any way wash away their testimonies and that part of the testimonies of the said witnesses which is truthful, consistent and credible can be taken into account by court in deciding the present case. He has further argued that maxim Falsus in Uno, Falsus in Omnibus is not applicable to India.
Therefore he has argued that prosecution has been able to prove its case beyond any reasonable doubt against the accused.
40.On the other hand, Ld. Defence counsel has argued that prosecution has miserably failed to prove its case against the accused beyond any shadow of doubt. He has rather argued that prosecution has failed to prove even the main ingredients for making out the offence U/s 7 and 13(1)(d) of PC Act, as he has argued that none of the witnesses i.e PW1 and PW2 had spoken about demand of bribe by the accused which is sine qua non for making out the offence U/s 7 and 13(1)(d) of PC Act. He has further argued that PW1 was declared hostile and that itself demolishes his credibility to large extent. He has further argued that PW1 has admitted that he had acted as a RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 23 of 52 24 witness in 34 other cases, which shows that he was not a reliable witness and he was the stock witness of the CBI. He has further argued that as per the handing over memo Ex PW1/A same was completed at 09:30 A.M on the day of trap i.e on 08.08.1995, whereas as per the testimony of PW1 in his examination in chief before reporting to the CBI office on the day of trap i.e on 08.08.1995 he had went to his office and o also did his work. He has argued that no office opens before 9 clock, as he was a public servant working with FCI. Therefore it appears that his testimony is false and his signatures were later on obtained on certain blank papers. He has further argued that PW1 has stated that money was recovered from the drawer of the complainant, whereas as per prosecution case itself there was no drawer as such from which the money was allegedly recovered.
41.He has further argued that PW2 the complainant has also been declared hostile by the prosecution which also squarely dents his credibility. He has also not stated that any demand of bribe was made by the accused from him. Therefore the necessary ingredients for making out the offence U/s 7 and 13(1)(d) is also not made out. He has also argued that hand RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 24 of 52 25 washes which were the tangible things were not produced, as it was stated to have been destroyed, which also casts serious doubt upon the prosecution story. He has also argued that PW5 and PW6 have stated that money was kept in the table of room of the complainant and none of them were privy to the transaction of demand and acceptance and he has argued that PW5 and PW6 are the witnesses of hearsay on this aspect and they must have been told regarding the said fact, either by PW1 or PW2. On the other hand, he has argued that DW3 who was the natural witness who was present at the time of alleged transaction has stated that there was no demand, no acceptance of any bribe by the accused, rather he has been falsely implicated and prosecution has deliberately not examined him as a witness. This clearly proves that accused is innocent, therefore liable to be acquitted.
42.The law in this regard has been laid down by the Hon'ble Supreme Court in, case titled as State of Punjab V. Sohan Singh reported as AIR 2009 SC 1887 , as under :
10. The High Court in support of its Judgment interalia opined :
i) The prosecution is required to RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 25 of 52 26 establish the demand of bribe by the accused; acceptance whereof as also the amount in question from his possession and having regard to the fact that there exists serious discrepancies in the statements of the witnesses in regard to the events immediately prior to the payment of the amount of bribe, the prosecution cannot be said to have proved its case.
ii) No reason has been assigned by the prosecution as to why the independent witness Inderjit Singh, who was a government employee, had been given up by the prosecution.
Iii) The circumstantial evidence in regard to the alleged commission of the offence by the respondent was not sufficient to establish the case of bribery in the light of the ingredients thereof.
43.It has been held by Hon'ble Supreme Court in, case titled as Banarsi Dass Vs. State of Haryana , reported as AIR 2010 Supreme Court 1589, as under :
11. To constitute an offence under Section 161 of the IPC, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused.
Similarly, in terms of Section 5 (1) (d) of the RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 26 of 52 27 Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused. In the case of M.K.Harshan Vs. State of Kerala (1996 (11) SCC 720) ; (AIR 1995 SC 2178 ; 1995 AIR SCW 3385 ), this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under :
" .............. It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 27 of 52 28 gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW1. Since PW1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5 (1) (d) of the Act, particularly when the version of the accused appears to be probable".
12. Reliance on behalf of appellant was placed upon the judgment of this Court in the case of C.M.Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 )(Supra), where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under : RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 28 of 52 29 "18. In Suraj Mal Vs. State (Delhi Admn.) (1979 (4) SCC 725); (AIR 1979 SC 1408), this Court took the view that (at SCC p. 727, para2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
20. A threeJudge Bench in M.Narsinga Rao Vs. State of A.P. (2001 (1) SCC 691 ; SCC (Crl.) 258); (AIR 2001 SC 318 ; 2000 AIR SCW 4427), while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed : (SCC p. 700, para24) :
"24. .... we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi Vs. State of RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 29 of 52 30 Maharashtra (2000 (8) SCC 571); (AIR 2001 SC 147 : 2000 AIR SCW 4018). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel : (Madhukar case, SCC p. 577, para12).
'12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 30 of 52 31 received it."
13. Infact, the above principle is no way derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case (AIR 1979 SC 1408) (supra), where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram Vs. State of Rajasthan (1975 (2) SCC 227) ; (AIR 1975 SC 1432), where similar view was taken.
14. The case of C.M. Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 ) (supra) was registered under the Prevention of Corruption Act, 1988, Section 7 of which is in pari materia with Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act.
Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 31 of 52 32 sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case.
44. I have gone through the rival contentions. Prosecution has to prove the following main ingredients to make out the case U/s 7 and Section 13(1)(d) of PC Act. Initial demand, demand of bribe at the time of trap, acceptance of bribe at the time of trap and thereafter recovery of bribe money from the possession of the accused.
45.Regarding the initial demand of bribe, PW2 Anil Koshal has stated that accused was posted as Inspector in DESU within his area and his electricity meter installed at his factory was burnt, therefore he lodged the complaint with DESU to install new meter and thereafter accused visited his factory premises and demanded Rs. 10000/ for changing the meter. He requested him to change it, but he refused to change the meter. Thereafter he went to lodge a complaint to CBI and he made complaint dated 07.08.1995 to SP CBI on his letterhead and also in his handwriting which is ExPW2/A.
46. Though in his complaint ExPW2/A, he has mentioned that the demand of bribe was Rs. 25000/, but in his examination in RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 32 of 52 33 chief there is a variance as he has stated that accused had demanded bribe of Rs. 10000/. In his cross examination by the Public Prosecutor he stated that initially accused Bhagwan Jethwani asked for bribe of Rs. 25000/, but after negotiations he agreed to Rs. 10,000/. Though this fact has not been stated in his complaint ExPW2/A that after negotiations the demand was reduced to Rs. 10000/. Be that as it may, from the testimony of PW2 the prosecution has been able to prove regarding the initial demand made by the accused.
47. Regarding the demand of bribe during the trap proceedings as discussed above the credibility of any witness who comes to depose in the witness box before he does so i.e before his examination in chief is actually carried out is 100% i.e his credibility before examination in chief is fully established and it remains so during his examination in chief, if he deposes as per the case of the prosecution, generally the credibility of any witness is diminished only during his cross examination by the opposite party. However, in this case PW1 had turned hostile and had not supported the prosecution case initially and similarly PW2 complainant also turned hostile and had also not supported the case of the prosecution initially, but thereafter RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 33 of 52 34 during cross examination by Ld. Public Prosecutor they did support the prosecution case. Therefore credibility of PW1 and PW2 got diluted by say almost 20%, even during their examination in chief i.e the same got reduced by 20%, as the prosecutor to whom the said witnesses belonged did not fully trust them, that is why they were declared hostile and were cross examined.
48. Let us examine to what extent they have supported the prosecution case. PW1 who is a shadow witness namely Uday Kumar did support the prosecution case to some extent, but thereafter he was declared hostile by the Public Prosecutor, whereafter he agreed to all the suggestions given by the prosecution in his cross examination carried out by Public Prosecutor.
49. PW1 who was the member of CBI team at the time of preparation of handing over memo and recovery memo has deposed in his examination in chief that on 08.08.1995 i.e on the day of trap he was on duty at FCI Head Quarter at Barakhambha Lane, Cannaught Place, New Delhi, where he was working as Assistant GradeI and he had done file work on the same date, but he cannot recollect which work and RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 34 of 52 35 there was the procedure to mark his presence in the attendance register on 08.08.1995 and he had entered his appearance in the office register for attendance. He also in his cross examination carried out by Public Prosecutor has admitted that his signatures appears on the handing over memo prepared later on at the CBI office, regarding the introduction of all the witnesses to the complainant namely PW2 Anil Koshal, writing of the currency notes in the annexure to the handing over memo and the procedure whereby chemical properties of phenolphthalein power and sodium carbonate solution were explained to him and thereafter necessary instructions were given to all the members of the trap team as to what they had to do and the instructions to PW1 to act as a shadow witness and the TLO Insp. Ved Prakash carrying out all the implements necessary for carrying out trap proceedings in a trap bag.
50.However, surprisingly, the said memo ExPW1/A is stated to have been concluded at 09:30 A.M(running into 3 pages) in which the detailed procedure had been written regarding the instructions given to the complainant, writing down the numbers on currency notes, obtaining of phenolphthalein RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 35 of 52 36 powder, explanation of chemical properties of reaction of phenolphthalein powder with Sodium carbonate solution and practical demonstration of the same to the complainant, necessary instructions to all the members of the trap team including shadow witness and other witnesses Parmeshwari Dass was told to act as recovery witness and obtaining the trap bag containing glass tumbler and ink from the malkhana and handing back the remaining phenolphthalein powder to the malkhana and all the proceedings were actually concluded at 09:30 A.M.
51.It is hard to imagine that PW1 who had went to the office on 08.08.1995 in the morning could be there in the CBI office at the conclusion of the proceedings at 09:30 A.M. From the perusal of the same it appears that the same must have taken atleast 2 hours to conclude the same by a conservative guess and no government office opens at around 07:00 A.M in the morning, if it does, which is quite peculiar, then the same must have been proved by the prosecution to be so. Therefore it clearly diminishes the credibility of the testimonial deposition of PW1 to great extent, therefore it is quite possible that the said memo had been prepared later on or earlier and that his RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 36 of 52 37 signatures may have been obtained in token thereof, which diminishes the credibility of the prosecution case as such to a large extent.
52. PW1 in his examination in chief has actually not supported the prosecution case, as he stated that after waiting for a long time accused had come into the office of the complainant and met him, but he cannot tell what was the conversation between accused and the complainant. Thereafter they went into inner room, while he sat in adjoining room. He does not know anything about the transaction which may have taken place inside the inner room. He could not hear the conversation between them. He also admitted that one Hari Chand Mazdoor was alongwith the accused. He also denied the suggestion by the prosecution that accused had demanded Rs. 10000/ from the complainant which was handed over to him by the complainant.
53.In his examination in chief he has nowhere stated that there was any demand of money by the accused from the complainant which is Sine qua non for making out the case U/s 7 and Section 13(1)(d) of PC Act. Infact he was not able to hear any conversation between the accused and the RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 37 of 52 38 complainant, as he stated that both of them went to the inner room.
54.PW1 further stated that he had participated in 34 other cases as a witness of CBI. As we understand the independent witnesses for any trap case are picked up on random basis from various government offices/government departments and it is hard to imagine that the same witness would be picked up again and again 34 times on random basis, probability of such a event happening is quite low. This thus shows that PW1 was some sort of a stock witness kept in reserve by the prosecution so that he could be called as and when they felt there was a need in any investigation or in a case. That is how the inconsistency in the preparation of the handing over memo ExPW1/A, which has not been explained which was concluded at 09:30 A.M. This also diminishes the credibility of PW1 to a large extent.
55. Now coming to the testimony of PW2 the complainant, he was also declared hostile by the Public Prosecutor, as he did not support the prosecution case at the outset and therefore his credibility as discussed above also stood decreased to about 20% at the very start of the race i.e his credibility could RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 38 of 52 39 be said to be 80% at the very outset before carrying out the cross examination by the public prosecutor.
56. Though PW2 in his cross examination by Ld. Public Prosecutor supported the case of the prosecution, although he made an improvement as he stated that the bribe amount was reduced to Rs. 10,000/ after negotiations, which is not reflected in his complaint PW2/A. In his entire examination in chief thereafter carried out by the Public Prosecutor he has not stated that there was any demand of money made by the accused from him on the day of trap, rather he stated that on 08.08.1995 he handed over Rs. 10000/ to the accused for changing the meter and he handed over money to him and there was another person alongwith him and Sh. Uday Kumar was also present and was watching the proceedings from some distance which was visible to him, but he cannot say how the money given by him came into the possession of CBI team. He also stated that CBI officers took accused to the sink of the adjoining room and washed his hands, the water turned into pink colour, which solution was later on taken and sealed in a bottle. He also identified the currency notes allegedly given by him to the accused.
RC NO. 66(A)/1995
CBI vs. Bhagwan Jethwani 39 of 52
40
57. As discussed above, PW2 has nowhere stated in the examination in chief that there was a demand of bribe by the accused, though he has stated that hand wash of the accused was taken which turned into pink colour, but said hand washes have not been produced, as it was stated by PW4 that the same were lost, as they were sent to Delhi Vidyut Board for the purposes of departmental proceedings against the accused. Be that as it may, since the said tangibles have not been produced, the prosecution has failed to prove that any such hand washes were indeed taken.
58. PW5 and PW6 who were the witnesses of recovery and the members of trap team have stated that money was kept in the table of the room of the complainant. It is admitted case of prosecution PW5 and PW6 had taken their positions outside the room, where the transaction allegedly took place and they had only went inside the room where the complainant and accused were allegedly sitting on receiving a pre determined signal from the shadow witness Parmeshwari Dass. Therefore they were not privy to the transaction of demand and acceptance and the factum of the same mentioned in the recovery memo ExPW1/C would be a hearsay evidence on RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 40 of 52 41 their behalf and that part of the said transaction being recorded in the ExPW1/C i.e recovery memo is hit by Section 162 of the Cr.PC and would not be admissible.
59. PW2 in his cross examination by the defence had stated that he had visited the office of the accused 1520 times. He also stated that it was correct that their connection was agricultural in nature. He also stated that the name of the person who was accompanying the accused may be Hari Chand. He also stated that there was no window between the two rooms. The door between the two rooms was 3 feet x 6 feet and the adjoining room was used for the purpose of laboratory having 23 stools. There was no almirah in the adjoining room.
60. He further stated that it was correct that on the day of trap his employee went to locate the accused in the area and to call him on the pretext that he wanted to meet him, which also diminishes the credibility of the prosecution case, as it is their case that accused came to the spot himself voluntarily, rather it appears that he was goaded by the accused and his staff to come to the factory on the day of trap. This also puts doubt on the projected prosecution story.
61.TLO of this case Insp. Ved Prakash had unfortunately died, RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 41 of 52 42 therefore this court could not get any light from his testimony, which would have been important in this case. PW5 Rafiq Ahmed who was SI CBI at that time has stated in his examination in chief that currency notes were recovered from the office table of the complainant and in his cross examination by defence he stated that he could not hear the conversation regarding alleged transaction and the same was never held in his presence.
62.Similarly PW6 another member of trap team namely R.V.S.Lohmor who was also inspector, he has also stated in his examination in chief that amount was kept on the table in the said room and in his cross examination has stated that money was not demanded by the accused in his presence and he had not seen the complainant giving bribe amount to the accused and another independent witness Parmeshwari Dass could not be traced during trial, despite best efforts by the prosecution. The testimony of the said independent witness was also very relevant to remove these inconsistencies which are appearing in the prosecution case to explain any inconsistency regarding the time when the handing over memo ExPW1/A was prepared and regarding the recovery and other RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 42 of 52 43 aspects of the prosecution case which prosecution has not been able to explain truely and satisfactorily.
63.On the other hand, DW3 Hari Chand was never examined by the prosecution, though his signatures are appearing on the recovery memo for the reasons best known to them, but he was examined by the accused. He stated that on the day of the trap they had left their Nangloi office for repair of transformer at Najafgarh road and he had accompanied the accused as the transformer was being changed there and the work was completed at around 01:00 P.M., thereafter one person came 23 times to meet the accused between 12:30 and 01:00 P.M and the accused told him that he will first finish his work there and then only he will attend him, but the said person was insisting that he should talk to his master for one minute regarding some work. Since he had to fetch his son from the school at around 01:30 P.M and he was not having any conveyance for reaching there in time, therefore he requested the accused to drop him to his office, as his cycle was parked there to which accused stated that they should first attend the said person at Naresh Park Extension for one minute, thereafter he will drop him at Nangloi office. Thereafter RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 43 of 52 44 they followed the said person on their scooter to Naresh Park Extension and they went inside the office, that was a small office and there was one table. When they went inside at around 01:15 P.M they met the owner of the factory and one more person was sitting there. The owner of the factory was asking the accused to change his electricity meter, to which he replied that meter changing was not his job, as it is within the purview of Meter Testing Department(MTD). The owner was telling the accused that if he wanted he can given Kharcha Pani to him, to which he stated that this was not his work. Thereafter accused categorically refused the said proposal. Thereafter the said owner held the hands of the accused and took him to the adjoining room and took out some money from the pocket of his pant and tried to give the money to the accused, which accused did not accept and jerked the hand of the said person. The money fell on the table lying there.
64.The testimony of DW3 that they were working at the place where transformer was being replaced at Najafgarh area is corroborated by the testimony of PW2 complainant himself who has stated that his employee went to locate the accused in the area and to call him on the pretext that he wanted to RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 44 of 52 45 meet him and none of the witnesses i.e PW1 and PW2 have stated regarding the demand. PW5 and PW6 have stated that money was lying on the table of the complainant, whereas none other than PW2 could see the transaction in question, as PW2 himself has stated that there is no window in the said room, which is also shown to be so in the site plan proved by the prosecution ExPW1/B, as the said site plan shows that there was no window in the said room and there was only one table and there was only egress and ingress for entering in the said room and the position of shadow witness and other witness is not diametrically opposite to the said opening of door from where they could have heard or seen the transaction as per site plan proved by the prosecution itself.
65.Scooter of the accused was parked outside which is also reflected in the site plan and neither PW1 nor PW2 who is the complainant have stated that any money was demanded by the accused and DW3 who appeared as defence witness, was a natural witness who as per the prosecution witnesses was present alongwith the accused at the time of alleged transaction and his signatures also appear on the recovery memo ExPW1/C, he has stated that money was forcibly given RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 45 of 52 46 by the complainant to the accused, which he refused and money fell down on the table, as stated above, it has also come in the cross examination of PW2, that he had sent some employee to call the accused to his office on the pretext that he had some work with him.
66.This makes story of the defence highly probable that though accused was present in the office of the complainant on the day of the trap i.e on 08.08.1995, but prosecution has failed to prove that accused actually demanded any bribe from the complainant or that the bribe was actually given to him by the complainant in the manner projected by the prosecution in this case. It is quite probable that PW2 was falsely implicated in this case by thrusting money into his hand, as conduct of the PW2 also does not appear to be above board, as he was having agricultural connection for running a factory and such kind of factory could not have been run in non confirming area without the connivance of the government officials. In view of above testimony of DW3 the credibility of prosecution case is further pulled down to large extent.
67. Further there are many other lacunas in the prosecution case which also makes the prosecution case highly doubtful. For RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 46 of 52 47 instance there is no DD entry regarding the departure of the CBI team from CBI office for the office of the complainant. Further no entry has been proved from the malkhana register regarding the issuance of phenolphthalein powder and return of remaining unused phenolphthalein powder. Further no entry has been produced from the malkhana register regarding issuance of seal for the use in the present case, the tangibles of this case the right hand wash of the accused has not been produced.
68.As already discussed above, PW Parmeshwari Dass and other prominent independent recovery witnesses could not be produced by the prosecution which also diminishes the probative score of the prosecution story. Further no independent witness present/working in the office of the complainant was examined to corroborate the version of the CBI team from the point of independent observer, as said testimony would have been important to contradict or corroborate the prosecution story, regarding their reaching the place of trap, the actual carrying out of trap and recovery and other proceedings being carried out at the spot, the name of the person/employee of the complainant who had gone to call RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 47 of 52 48 the accused in the area on the pretext PW2 wanted to meet him could not be revealed during the investigation, nor has been stated so anywhere in the document(s) placed on the record.
69.Further in all fairness TLO of this case Inps Ved Prakash, as per settled law in view of the judgment relied upon by the counsel for defence (SUPRA) titled as Megha Singh Vs. State of Haryana SUPRA could not have investigated the present case himself, as it appears that he had recorded the statements of the witnesses U/s 161 Cr.P.C and he was also TLO, therefore in all fairness since TLO would be interested in success of the trap, therefore he should not have investigated the case himself and should had handed over the investigation as is generally done after laying of trap to some other IO, as the same is against he principles of natural justice/fairness.
70.As already discussed above, there is no window shown in the site plan ExPW1/B in the room where the alleged transaction took place, whereas in the recovery memo ExPW1/C it is stated that CBI team rushed to apprehend the accused on seeing through window. It is not clear if there was no window, RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 48 of 52 49 how CBI could see the transaction through such window, CBI team could have only seen the transaction if they were having some sort of divine eyes/clairvoyance to see through the opaque walls of the room, not otherwise.
71.Further as already discussed above, no reason or explanation has been given why coconspirator Hari Chand Mazdoor was let off in the mysterical manner for which no explanation has come forth.
72.Now it is to seen what is the net probative force of the evidence as a whole given the entire mass of the prosecution and the defence witnesses as discussed above.
73.In view of the analysis of evidence, probative force of the prosecution case as a whole is touching the point of utmost uncertainty on such scale, where the probability of happening any event is measured or assessed. It would be fair to say that the event as projected by the prosecution never happened or had happened, but true nature of it was never brought before the court, further the the event though happened, but it seems that story projected by the prosecution appears to having very low probative force to be true, when measured on the said scale(s). Therefore probative force of the prosecution score RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 49 of 52 50 would be touching say score of 3 on such scale of 010. '0' being total lack of proof, '10' being absolute proof or certainty.
74.In view of the above discussion, given the entire mass of prosecution and defence evidence placed on the record, how likely is this evidence given that accused demanded and accepted the bribe money which was also recovered from him which can be termed as likelihoodI(propositionI) or how likely is this evidence given that accused never demanded, accepted bribe money which was not recovered from him, which can be termed as likelihoodII(propositionII) The probative force of this likelihood method depends upon the relative sizes of the two likelihoods i.e likelihoodI and likelihoodII.
75.How much stronger is this evidence depends how much propositionI is greater than propositionII or vice versa. If likelihood propositionII is much greater than likelihood propositionI given the mass of entire evidence lead on the record by the prosecution or defence then the accused is likely to be acquitted & vice versa the accused is liable to be convicted, if both are equals then it can be said that both of RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 50 of 52 51 them have equal probative value/force.
76.In view of the above discussion, it is apparent that the probative force of propositionII i.e likelihoodII is much greater than the likelihoodI or propositionI, that is to say that the probative force of the evidence lead on the record in favour the propositionII is much much greater than propositionI i.e likelihoodII is clearly established which strongly favours innocence of the accused.
77.On the scale of 1 to 10, where happening of any event is measured the probative force of the entire mass of the evidence lead on record taken as a whole is touching the point of almost uncertainty. It can be given at the most 3 points on such scale of '10' i.e 30% probability '1' being the certainty or 100% or absolute proof. On such kind of evidence, it can be said that it is highly unlikely that the accused was guilty of the offence for which he has been charged. The prosecution has to prove its case beyond reasonable doubt and on said scales it should be touching the point of certainty if not one, it should be somewhere around 8 or 9 that is to say 80% and 90% which is not the case in hand. In these circumstances, RC NO. 66(A)/1995 CBI vs. Bhagwan Jethwani 51 of 52 52 accused is liable to be acquitted of the charge(s) U/s 7 & 13(1)
(d) r/w 13(2) of PC Act 1988 of PC Act. Accused has already furnished bail bond U/s 437A Cr.P.C at the stage of final arguments which will remain in force for a period of 6 months from today as stipulated in the said section.
78.File be consigned to Record Room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 27.01.2016 Special Judge,
CBI03 (PC Act)
Delhi/ 27.01.2016
RC NO. 66(A)/1995
CBI vs. Bhagwan Jethwani 52 of 52