Delhi District Court
State vs . Sukhbir Singh on 9 April, 2012
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 25/12
Unique Case ID : 02401R0138022007
STATE VS. SUKHBIR SINGH
S/o Sh. Malhar Singh,
R/o Village Gharauli,
Teh. Gurgaon Sadar,
PS Gurgaon Sadar, Distt. Gurgaon,
Haryana.
FIR NO. : 47/06
U/S : 7/13 Prevention of Corruption Act,
1988
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 08.02.2007
Judgment reserved on 04.04.2012
Judgment delivered on 09.04.2012
JUDGMENT
1. The precise case of the prosecution is that on dated 19.06.2006 complainant Sh. Manish Kaushik S/o Mahender Kaushik C.C. No. 25/12 Page No. 1 of 37 went to Anti Corruption Branch, Delhi and got lodged his complaint Ex.PW2/A regarding demand of bribe of Rs.5,000/ by the accused Sukhbir Singh who was working as Constable in Hauz Khas Traffic Circle for not getting impounded the Bus of the complainant plying on route from Saket to Mori Gate.
2. The gist of the said complaint is that the complainant had been running Bus on route from Saket to Mori Gate and the accused Ct. Sukhbir Singh who was working as Driver of TI of Hauz Khas Circle used to demand Rs.5,000/ as monthly bribe for running Bus of the complainant otherwise he would get the Bus impounded through the concerned TI or ZO. On that day the accused talked to him in his mobile phone and asked the complainant to bring the bribe amount on that day at about 6:30 to 7:00 p.m. Since the complainant was against giving of bribe and went to Anti Corruption Branch and got his complaint lodged before the then Inspector Hari Chand, Raid Officer PW7 in presence of Panch witness Zubair Ahmad, PW3.
3. The further case of the prosecution is that the complainant has produced 10 GC notes of Rs. 500/ each before the Raid Officer PW7 who noted down the serial number of said GC notes in the pre C.C. No. 25/12 Page No. 2 of 37 raid proceedings Ex.PW2/F and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW7 gave demonstration to the Panch witness, complainant by getting touched the right hand of the Panch witness with that treated currency notes and wash of the right hand of the Panch witness in the colourless solution of sodium carbonate which turned into pink. Thereafter, said GC notes were handed over to the complainant and Panch witness was instructed to remain close with the complainant and to overhear the conversation between the complainant and the person demanding the bribe amount and to give signal by hurling his hand over his head after being satisfied that the bribe has actually been given.
4. That at about 5:30 p.m., PW7 Raid Officer along with complainant, Panch witness, Inspector Santosh Kumar and other members of the raiding party left Anti Corruption Branch in a government vehicle and reached near TI Office, PS Hauz Khas at about 6:15 p.m. Government vehicle was parked at some distance, Inspector Santosh Kumar alongwith the Driver remained in the vehicle. Complainant and Panch witness went inside TI Office and the members of the Raiding team took suitable position but at about 6:25 p.m. complainant and Panch witness came back and informed the C.C. No. 25/12 Page No. 3 of 37 Raid Officer that accused had gone alongwith TI in the area and about to reach at red light IIT Gate, Hauz Khas and accused has called the complainant there. Thereafter, the Raiding team reached there at about 6:35 p.m. and government vehicle was parked nearby.
5. The further case of the prosecution is that at about 6:40 p.m. one Traffic Police Vehicle make Qualis came there from which the accused got down and talked to the complainant and thereafter, on receiving the predetermined signal from Panch witness, Raid Officer alongwith the raiding team reached the spot where Panch witness informed that the accused had demanded and accepted bribe of Rs. 5000/ from the complainant with his right hand and kept the same in his right pocket of his uniform pant. Thereafter, Raid Officer after disclosing his identity challenged the accused that he had demanded and accepted the bribe of Rs.5000/ from the complainant and offered his search but accused declined. On his directions, Panch witness recovered bribe amount of Rs.5000/ from the right pocket of the pant of the accused and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW2/F and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW2/C. The wash of right hand of the accused C.C. No. 25/12 Page No. 4 of 37 was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of HCS and were marked as RHWI & RHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Thereafter, wash of right pocket of uniform pant of the accused was also taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of HCS and were marked as RSPPWI & RSPPWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Those bottles, pullanda of pant of accused and sample seal were taken into possession vide Seizure Memo Ex.PW2/D. The Raid Officer also drawn up the post raid proceedings which is Ex.PW2/E and prepared rukka Ex.PW7/A and sent the same through Ct. Raju to PS Anti Corruption Branch for registration of the case.
6. The further case of the prosecution is that the Raid Officer called Inspector Santosh Kumar PW4, IO at the spot and handed over him the custody of the accused, case property and relevant documents etc. for purpose of Investigation. I.O. took up the Investigation, C.C. No. 25/12 Page No. 5 of 37 prepared the Site Plan Ex.PW4/A. IO recorded the statement of complainant and Panch witness, interrogated the accused and arrested the accused vide Memo Ex.PW2/G and conducted the personal search of the accused vide Personal Search Memo Ex.PW2/H, received original rukka Ex.PW7/A and copy of FIR, got accused medically examined and thereafter, went to PS Civil Line where he deposited the case property, exhibits and articles of personal search with the MHC(M) and the accused was put in the lock up. During the course of Investigation, the relevant exhibits were sent to FSL for chemical analysis and later on FSL Report was received. Biodata of the accused, Dismissal Order were also received by the IO. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
7. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of the Prevention of Corruption Act, 1988 was framed against accused on 13.02.2008 to which accused pleaded not guilty and claimed trial.
8. Thereafter, in order to bring home the guilt of the accused, C.C. No. 25/12 Page No. 6 of 37 the prosecution got examined 10 prosecution witnesses namely Sh.D.P.Verma, the then Deputy Commissioner of Traffic Police, New Delhi as PW1, Manish Kaushik, complainant as PW2, Zubair Ahmad as PW3, Inspector Santosh Kumar/IO as PW4, HC Upender Rao who was working as Duty Officer on 19.6.2006 at PS AC Branch, a formal witness as PW5, HC Shokat Ali who had deposited the relevant case property at FSL, Rohini a formal witness as PW6, the then Inspector Hari Chand, Raid Officer as PW7, Ct. Raju N. who had taken the rukka and got FIR registered, a formal witness as PW8, the then ACP Gyan Chand ,Traffic (Head Quarter) who had prepared the Biodata of the accused and sent the same alongwith Dismissal Order of the accused to Anti Corruption Branch, a formal witness as PW9 and Inspector Harish Kumar, the last IO as PW10.
9. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied about any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case having no concern with the alleged offence.
10. I have heard Final Arguments as addressed by Sh. R.C. C.C. No. 25/12 Page No. 7 of 37 Chopra Adv. Ld. Counsel for the accused and Sh.Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record.
11. It is submitted by Ld. Counsel for the accused that as the IO has not obtained the Sanction from the competent authority for launching prosecution as against the accused and therefore, in the absence of said Sanction, the entire trial proceedings stand vitiated and accused deserves to be acquitted. It is further added by Ld. Counsel for the accused that the accused has neither demanded nor accepted any bribe from the complainant and prosecution has failed to prove about the said aspects and hence, accused deserves to be acquitted. It is also added by Ld. Defence Counsel that PW3/Panch witness is a stock witness of the police as he has participated several times as Panch witness in the Raid Proceedings at Anti Corruption Branch and therefore, his deposition cannot be treated as trustworthy and reliable. It is also added by Ld. Defence Counsel that PW2 Manish Kaushik who is the complainant and prime witness of the prosecution has not deposed anything as against this accused and therefore, this accused deserves to be acquitted. It is also added by Ld. Defence Counsel that PW3 Zubair Ahmad, Panch witness has not deposed anything as regards the demand and acceptance of bribe by C.C. No. 25/12 Page No. 8 of 37 the accused from the complainant and therefore, no case punishable under Section 7 and 13(2) r/w Section 13 (1) (d) of Prevention of Corruption Act could be established as against the accused and hence, the accused deserves to be acquitted. It is further added by Ld. Counsel for the accused that the Raid Officer being interested witness for the success of his raid, his deposition cannot be treated as trustworthy and reliable. It is further added by Ld. Counsel for the accused that even otherwise as this accused was Constable and merely working as Driver of Traffic Inspector, Hauz Khas Traffic Circle and he was not competent to impound the Bus of the complainant and therefore, there was no occasion on the part of the accused to demand any bribe from the complainant. It is further added by Ld. Counsel for the accused that though other persons including the Traffic Inspector were available at the spot but none of them was joined in the Raid proceedings and same is fatal for the case of the prosecution. Ld. Counsel for the accused thus urged for acquittal of this accused.
12. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 10 PWs have clearly established its case as against the accused and therefore, the accused deserves to be convicted for the charged offence U/S 7 and 13 (2) of Prevention of C.C. No. 25/12 Page No. 9 of 37 Corruption Act, 1988. It is further added by Ld. Addl. PP for the State that the complainant PW2 Manish Kaushik has turned hostile being won over by the accused but same can be of no help for the accused as the prosecution has successfully established its case as against the accused through the deposition of other witnesses and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that there is no reason as to why PW7 Inspector Hari Chand/Raid Officer, PW3 Zubair Ahmad/ Panch witness and PW4 Inspector Santosh Kumar/IO would falsely implicate the accused specifically when there is no previous enmity as against the accused by them. It is further added by Ld. Addl. PP that since the accused was already dismissed from service, no Sanction Order was required for launching prosecution against the accused. It is further added by Ld. Addl. PP that mere discrepancy in the deposition of certain PWs as pointed out by Ld. Counsel for the accused are merely formal in nature and is because of the time gap between the period of incident and deposition of PWs in the court and the case of the prosecution cannot be thrown out merely on the said ground. Ld. Addl. PP for the State has added that the prosecution has been successful in establishing its case as against the accused for the charged offence and hence, the accused deserves to be convicted.
C.C. No. 25/12 Page No. 10 of 37
13. The first and foremost question having significant bearing on the fate of this case is that whether trial proceedings against the accused can be held to be vitiated because of the want of the Sanction from the competent authority for initiating prosecution as against this accused? From the perusal of the record, it is reflected that the IO has not obtained any Sanction from the competent authority for launching prosecution as against the accused. It is revealed from the record that this accused Sukhbir Singh was working as Constable in Hauz Khas Traffic Circle and was certainly public servant on dated 19.6.2006 while he is alleged to have demanded and accepted bribe of Rs.5000/ from the complainant PW2 Manish Kaushik in consideration for allowing him to run his Bus on route from Saket to Mori Gate otherwise to get the Bus impounded through the concerned TI or ZO. From the perusal of the deposition of PW1 Sh.D.P.Verma who was posted as Deputy Commissioner of Traffic Police, New Delhi and was also looking after the charge of DCP, Traffic, (SR), Delhi coupled with the contents of the Dismissal Order dated 21.6.2006 of the accused Ex.PW1/A, it is clearly reflected that this accused was dismissed from service with immediate effect and contents of Para 6 of said Order reads as under: "The conduct of Constable Sukhbir Singh No. 3717/T C.C. No. 25/12 Page No. 11 of 37 reveals that he is unfit to be retained to disciplined force like Delhi Police. Accordingly, under proviso (b), Clause 2, Article 311 of the Constitution of India, it is decided to dispensed with departmental enquiry which seems reasonable, it is decided to impose the penalty of dismissal from service. Therefore, Constable Sukhbir Singh No. 3717/T (PIS No. 28990992) is, hereby, dismissed from service with immediate effect."
14. In view of the aforesaid Dismissal Order dated 21.6.2006 of the accused Ex.PW1/A as passed by PW1 Sh.D.P.Verma, the then DCP, Traffic (SR), Delhi, it is clearly established that the accused ceased to be a public servant with effect from 21.6.2006. It is further revealed from the record that after filing of the chargesheet, the cognizance for offence punishable U/S 7 and 13 (1) (d) of Prevention of Corruption Act,1988 has been taken by the court on dated 19.3.2007. In the case reported as "AIR 1958 SC 107 S.A.Venkatraman Vs. State", it was observed by Hon'ble Supreme Court of India to the effect that it is settled law that no Sanction is required for prosecution of a person under Prevention of Corruption C.C. No. 25/12 Page No. 12 of 37 Act who ceased to be a public servant. Furthermore, in another case reported as "1999 Cr.L.J. 3696 State of Kerala Vs. Padmanabhan Nair, it was observed by Hon'ble Supreme Court of India as under: "An accused facing prosecution for offences under the Prevention of Corruption Act cannot claim any immunity on the ground of want of Sanction, if he ceased to be a public servant on the date when the court took cognizance of the offences."
15. By taking the cue from the aforesaid judgments as rendered by Hon'ble Supreme Court of India and applying the same to the facts of the present case which clearly established that this accused ceased to be a public servant with effect from 21.6.2006 whereas cognizance has been taken by the court vide order dated 19.3.2007, I have no hesitation to safely conclude that the prosecution cannot be faulted for not obtaining the Sanction from competent authority concerning the accused for launching prosecution as against him and therefore, the trial cannot be treated as vitiated due to want of Sanction concerning the accused.
16. That during the course of argument, it is submitted by Ld. Counsel for the accused that the prosecution could not prove about the C.C. No. 25/12 Page No. 13 of 37 demand and acceptance of bribe by the accused as PW2 Complainant Sh. Manish Kaushik and PW3 Panch witness Zubair Ahmad have not deposed anything as against this accused regarding demand and acceptance of the bribe from the complainant. On the other hand, it is submitted by Ld. Addl.PP for the State that the facts regarding demand and acceptance of the bribe by the accused from complainant have been successfully proved by the prosecution and mere fact that PW2 complainant Sh. Manish Kaushik has turned hostile being won over by the accused can be of no help for the accused as prosecution has successfully established its case as against the accused through the deposition of PW3 Zubair Ahmad, Panch witness, PW7 Inspector Hem Chand, Raid Officer and PW4 Inspector Santosh Kumar, IO.
17. In order to prove that the accused had demanded and accepted the bribe amount from the complainant, the prosecution is found to have examined PW2 Sh.Manish Kaushik/complainant, PW3 Sh. Zubair Ahmad/Panch witness and PW7 Inspector Hari Chand, Raid Officer and PW4 Inspector Santosh Kumar/IO. PW3 Zubair Ahmad, Panch witness has clearly deposed before the court that on dated 19.6.2006 he was on duty as a Panch witness in the Anti Corruption Branch and complainant Manish Kaushik lodged his Complaint Ex.PW2/A in his presence before the Raid Officer and said C.C. No. 25/12 Page No. 14 of 37 Complaint bears his signature at point B and he has also narrated about the Pre Raid Proceedings Ex.PW2/F. He further deposed that at about 5:30 pm he alongwith the complainant, Raid Officer, Inspector Santosh Kumar and other members of the raiding team left the Anti Corruption Branch in a government vehicle and reached at Crossing of IIT Gate, Hauz Khas and the government vehicle was parked before the Crossing. He further deposed that he alongwith the complainant proceeded towards the Traffic Police Vehicle which was being driven by the accused and Officer of Traffic Police was also sitting in the said vehicle. He further deposed that accused got down from vehicle and came towards them. As regards the acceptance of the bribe by the accused said PW3 Zubair Ahmad, Panch witness has specifically deposed in this respect as under: "Accused Sukhbir Singh now present in the court today (correctly identified) was driving the vehicle. He got down from the vehicle and came to us. Thereafter complainant handed over the bribe amount to the accused which he received in his right hand and kept the same in the right side pocket of his pant."
18. Said PW3 Panch witness has further deposed that on his C.C. No. 25/12 Page No. 15 of 37 giving predetermined signal, Raid Officer and other members of the raiding party reached the spot and informed him that accused had accepted the bribe money of Rs. 5,000/. He has also deposed about the recovery of said GC notes of Rs.5,000/ from the accused and narrated about the Post Raid Proceedings Ex.PW2/E. Regarding the recovery of the bribe money from the accused said PW3 has deposed as under: "On the instructions of Raid Officer, I took the search of the accused and recovered those treated GC notes from the right pocket of the pant of the accused. The sl. no. of those recovered GC notes were tallied with sl. no. mentioned in preraid report which tallied. Those treated GC notes were taken into possession vide seizure memo Ex.PW2/C bear my signature at point B."
Said PW3 further deposed about taking right hand wash and right pocket pant wash of the accused in solution of Sodium Carbonate which turned pink and transferring the said solution in four bottles having labels RHWI, RHWII, RSPPWI and RSPPW II bearing his signature and signature of the complainant and seizure of the same besides pant parcel of the accused vide seizure memo Ex.PW2/D bearing his signature at point B. Said PW3 also deposed C.C. No. 25/12 Page No. 16 of 37 that the IO arrested the accused vide Arrest Memo Ex.PW2/G and carried out his personal search vide memo Ex.PW2/H bearing his signature at point B. Said PW3 has duly identified said GC notes of Rs.5,000/ in the denomination of Rs.500/ each as Ex.P1 to P10 and 4 sealed bottles as Ex.P11 to P14 on identifying his signature on labels affixed therein and the pant of the accused as Ex.P15 and pant pullanda as Ex.P16. Said PW3 Panch witness in his cross examination by Ld. Defence Counsel has denied the suggestion that he had signed the PreRaid Proceedings and Post Raid Proceedings and the Memos without going through the same. He has also specifically denied the suggestion that no transaction took place between the complainant and the accused. He has also denied the suggestion that no money was recovered from the person of the accused or that the washes were tampered.
19. The material part of the deposition of PW3 Panch witness is found corroborated from the deposition of PW7 Inspector Hari Chand, Raid Officer. PW 7 Inspector Hari Chand, Raid Officer is found to have deposed regarding lodging of the complaint Ex.PW2/A by the complainant in the presence of Panch witness on dated 19.6.2006 and thereafter, the preraid proceeding Ex.PW2/F was C.C. No. 25/12 Page No. 17 of 37 carried out by him. Said PW7 further deposed that at about 5:30 p.m. he alongwith the complainant, Panch witness and other members of raiding team left Anti Corruption Branch and reached at TI Office, PS Hauz Khas at about 6:15 p.m. He further deposed that complainant and Panch witness went inside the TI Office but came out from there and informed him that accused had gone alongwith the TI in the area and was to about reach at Red Light IIT Gate, Hauz Khas and accused had called the complainant at that Red Light Point. He further deposed that he alongwith the Raid team reached at about 6:35 p.m. and government vehicle was parked at the Service Road and at about 6:40 p.m. Traffic Police Vehicle make Qualis came and the accused who was driving that vehicle came down from the vehicle and talked to the complainant and on receiving the predetermined signal given by Panch witness, he alongwith raiding team reached the spot and Panch witness informed him that the accused had demanded and accepted bribe money of Rs.5,000/ from the complainant as said PW7 has deposed in this respect as under: "I asked the panch witness, what had happened and he told me that Sukhbir Singh accused present in the Court today (correctly identified) had demanded and accepted bribe money of Rs.5000/ from the complainant with his right C.C. No. 25/12 Page No. 18 of 37 hand and had kept the same in his right pocket of his police uniform pant".
Said PW7 deposed that on his instruction Panch witness recovered the bribe amount of Rs. 5,000/ from the accused and on checking, the numbers of the recovered GC notes found tallied with the numbers as noted in preraid report Ex.PW2/F. He also deposed that GC notes were seized vide Seizure Memo Ex.PW2/C bearing his signature at point C. He also deposed about the postraid proceeding Ex.PW2/E bearing his signature at point C and seizure of the four bottles containing right hand wash and right pant pocket wash of the accused vide Seizure Memo Ex.PW2/D. He has clearly identified the said recovered GC notes as Ex.P1 to P 10 and four sealed bottles as Ex.P11 to P14 and Pant of the accused as Ex.P15 and Pant pullanda as Ex.P16. Said PW7 in his cross examination by Ld. Defence Counsel has denied the suggestion that no handing over any tainted money took place between the complainant and the accused.
20. So far as PW2 Manish Kaushik/complainant is concerned, he is found to have supported the stand of the prosecution partly and has turned hostile on certain aspects. Said PW2/complainant has deposed that in the year 2006 his Bus No.DL1PA 5152 used to be C.C. No. 25/12 Page No. 19 of 37 plied from Saket to Mori Gate on route no.501 and one Constable namely Sukhbir and another Constable used to demand monthly Rs. 100/ to Rs.500/ from him under threat of getting his vehicle impounded through ZO. He further deposed that they called him at IIT Gate between 6:30 p.m. to 7:00 p.m. and he went to Anti Corruption Branch where he has given his Complaint Ex.PW2/A in the presence of one witness and said Complaint bears his signature at point A. He also deposed that he had given Rs.5000/ to the Raid Officer who applied phenolphthalein powder on the GC notes. He further deposed that at about 4:30 p.m. he alongwith the Raid Officer and other police officials and one witness left for IIT Gate and reached at about 5:45 p.m. and government vehicle was parked at some distance from IIT Gate. He has also deposed that after sometime one Ravinder and one Driver of the TI came at the spot and on their asking he handed over money to Constable who was standing at the Red Light. He has identified the accused as Driver of TI who asked him to hand over the money to Constable. Said PW2/complainant being found turned hostile, he was cross examined by Ld. Addl. PP in which he admitted to be correct that he has told the Raid Officer who recorded the complaint that one Sukhbir Singh, Driver of TI used to harass him and was demanding monthly. C.C. No. 25/12 Page No. 20 of 37 However, said PW2 denied to have made police statement as per Ex.PW2/B but said PW2/complainant in his cross examination by Ld. Addl. PP has admitted that the Seizure Memo of GC notes Ex.PW2/C, Seizure Memo of the bottles and pant pullanda Ex.PW2/D, Pre Raid Report Ex.PW2/F, Post Raid Proceedings Ex.PW2/E bear his signature at point A. Even PW2/complainant has admitted that said Complaint Ex.PW2/A bears his signature at point A and also found mentioned the name, father's name and address of the complainant correctly.
21. No doubt said PW2/complaint is found turned hostile and has not supported the stand of the prosecution but from the perusal of the record, it is clearly reflected that Raid Officer PW7 has drawn the Post Raid Proceedings Ex.PW2/E which found bear the signature of PW2/complainant at point A, signature of PW3 Panch witness at point B and signature of PW7 Raid Officer at point C.
22. I am of the considered view that said Post Raid Proceedings Ex.PW3/E being in the nature of Panchnama which is duly signed by the complainant and Panch witness is duly admissible and reference can be made to the case of Santa Singh vs. State of Punjab AIR C.C. No. 25/12 Page No. 21 of 37 1956 Supreme Court 526 wherein it was held that mere presence of the police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of the things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him and it would not fall within the mischief of section 162 of the Code.
23. From the perusal of the said Post Raid Proceedings Ex.PW3/E, it is clearly reflected that the accused Sukhbir Singh had demanded and accepted the bribe amount of Rs.5,000/ from the complainant and said amount has been recovered by the Panch witness from right pant pocket of the accused and the serial number of those GC notes found tallied with the serial number as mentioned in the Pre Raid Proceedings Ex.PW2/F and said recovered GC notes were seized vide Seizure Memo Ex.PW2/C.
24. During the course of the argument, it is submitted by Ld. Defence Counsel that PW3/Panch witness is a stock witness of the police as he has participated several times as Panch witness in the Raid Proceedings at Anti Corruption Branch and therefore, his C.C. No. 25/12 Page No. 22 of 37 deposition cannot be treated as trustworthy and reliable. No doubt, PW3/Zubair Ahmad in his cross examination by Ld. Defence Counsel has added that he was assigned duty as Panch witness in Anti Corruption Branch 45 times and had participated in two Raids including the present one but said fact itself cannot brand him as a stock witness of police in view of the fact that he has been asked to join as a Panch witness not as per his sweet will but as per the Official Roaster as prepared by the Anti Corruption Branch in usual course of official nature and therefore, I do not find any force in the submission of Ld. Defence Counsel in this respect.
25. It is also revealed from the record that the right hand wash and right pant pocket wash of accused with colourless solution of sodium carbonate were taken and the same turned into pink colour and said wash vide Ex.RHWI and RSPPWI have given positive test for the presence of phenolphthalein and sodium carbonate as per FSL Report Ex.PW10/A which establish that the said treated 10 currency notes of Rs.500/ each were handled and accepted by the accused and ultimately it was recovered from him.
26. I do not find any force in the submission of Ld. Defence C.C. No. 25/12 Page No. 23 of 37 Counsel to the effect that since PW2 complainant has turned hostile and therefore, his deposition cannot be considered at all. In the Judgment reported as AIR 1991 SC 1853 Khujji @ Surender Tiwari vs. State of M.P., it was observed as under: Para 6: ".................................... Counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this court "Bhagwan Singh vs. State of Haryana (1976) 2 SCR 921 : (AIR 1976 SC 202): Rabinder Kumar Dey vs. State of Orissa, (1976) 4 SCC 233 :(AIR 1977 SC 170) and Syed Akbar v. State of Karnataka, (1980) 1 SCR 95: (AIR 1979 SC 1848) that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two C.C. No. 25/12 Page No. 24 of 37 eye witnesses was challenged by the prosecution in cross examination because they refused to name the accused in the dock as the assailants of the deceased. We are in agreement with the submission of the learned counsel for the State that the trial Court made."
27. In view of the above material as available on record, I am of the considered view that the factum regarding the demand and acceptance of bribe of Rs.5,000/ by the accused from the complainant have been found established from the deposition of PW2 Manish Kaushik, complainant, PW3 Zubair Ahmad, Panch witness, PW7 Inspector Hari Chand, Raid Officer coupled with the content of Complaint Ex.PW2/A, Seizure Memo of the GC notes Ex.PW2/C, Seizure Memo of four bottles marked as Ex.RHWI, RHWII, RSPPWI and RSPPWII, sample seal vide Ex.PW2/D, Post Raid Proceedings Ex.PW2/E. Said fact is also found corroborated from the content of the DD No.28 dated 19.6.2006, copy of which is Ex.DX whereby establishing the presence of the accused at the spot.
28. During the course of the argument, it is submitted by Ld. Counsel for the accused that as the Raid Officer is an interested C.C. No. 25/12 Page No. 25 of 37 witness for success of his raid and therefore, his deposition cannot be treated as trustworthy and reliable. I do not find any force in the submission of Ld. Counsel for the accused in this respect. Reference is placed on case of Hazari Lal V/s State ( Delhi Admn ) AIR 1980 Supreme Court 873. In that case the allegations against the accused who was a police officer was that he demanded bribe from the complainant for release of his scooter rickshaw which was seized by the police. The trap was laid and the accused was caught red handed. However, during trial complainant turned hostile and deposed that when he went to the police station on first occasion to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar was present and it was not the accused but that Hawaldar who demanded bribe of Rs. 60/ from him and when he went to the police station along with punch witness he found accused there and asked him to take a sum of Rs. 60/ and return the scooter rickshaw. He stretched his hand with the money towards the pocket of accused 's trouser but accused said the money might be paid to the person for whom it was meant for. He refused to receive the money and jerked complainant's hand with his hand as a result of which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the amount from his nor accepted the C.C. No. 25/12 Page No. 26 of 37 amount. The punch witness who went along with the complainant could not be examined as he became insane and other punch witness turned hostile. The conviction was based on the statement of trap officer and the Hon'ble Supreme Court held as under: "We are not prepared to accept the submission of Shri Frank Authony that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case, the Court may unhesitatingly agent the evidence of such an officer."
29. Besides that in the case reported as AIR 1998 SC 1474 C.C. No. 25/12 Page No. 27 of 37 State of U.P. Vs. Zakullaha it was held by the Hon'ble Supere Court of India that the evidence of trap officer in a bribe case can be acted upon even without the help of any corroboration and similar view was held in following judgments: (1) Prakash Chand vs. State (Delhi Administration) AIR 1979 SC 400 (2) Hazari Lal vs. Delhi Administration AIR 1980 SC 873.
30. I do not find any force in the submission of Ld. Counsel for throwing out the case of the prosecution merely on account of the fact that the IO has not collected the detailed call report of the mobile phone of the accused as well as the complainant and has not examined any other persons available at the spot and for not collecting any evidence for establishing the factum of plying of Bus from Saket to Mori Gate by the complainant, in view of the availability of the adequate material on record regarding demand and acceptance of the bribe of Rs.5,000/ by the accused from the complainant. Besides that I am of the considered view that mere lapse on the part of the IO cannot be a escape ground for the accused specifically when adequate incriminating material for the charged offence is available on record. I am of the considered view that criminal justice should not be made C.C. No. 25/12 Page No. 28 of 37 casualty of wrongs committed by the IO and my said view is found nourished from the judgment as rendered by Hon'ble Delhi High Court in the case reported as "2000 (I) A.D. (Delhi) 67 Manoj @ Manu Vs. State of Delhi." In the case reported as "State of Rajasthan Vs. Kishore (1996 SCC (Crl) 646)" it was observed by Hon'ble Supreme Court of India that mere fact that the investigating officer committed irregularity or illegality during the course of investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. Furthermore, in another case reported as "Ram Bihari Yadav Vs. State of Bihar and Ors. (1998(4) SCC
517)" it was observed by Hon'ble Supreme Court of India as under: "If primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice". The view was again reiterated in "Amar Singh Vs. Balwinder Singh and Ors. (2003 (2) SCC 518)."
31. During course of arguments, it is submitted by Ld. Defence Counsel that as this accused was merely working as Driver of Traffic C.C. No. 25/12 Page No. 29 of 37 Inspector, Hauz Khas Traffic Circle and he was not competent to impound the Bus of the complainant and therefore, there was no occasion on the part of this accused to demand any bribe from the complainant. I do not find any force in the said submission of Ld. Defence Counsel. Law is well settled that it does not matter whether the public servant was competent to do the work or not and reference can be placed in the case reported as Chaturdas Bhagwandas Patel Vs. State of Gujrat, 1976(3) SCC 46 as referred in State of Andhra Pradesh Vs. C. Uma Maheshwar Rao and Anr. 2004, V AD (SC) 176, wherein it has been held by Hon'ble Supreme Court of India that the question whether a person has an authority to do the act for which bribe is accepted, is of no consequence. In the case reported as Gopal Singh Vs. CBI, ILR (2005) II Delhi 35, It was observed by the Hon'ble Delhi High Court in Para 22 as under: "It has to be added that in cases under PC Act, the prosecution is under no obligation to prove that a public servant demanding bribe was in a position to help the person from whom the bribe was being demanded. The prosecution succeed the moment it is shown that a public servant had accepted some money from someone which was not legal C.C. No. 25/12 Page No. 30 of 37 remuneration. The presumption U/S 20 of the Act comes into play shifting the burden upon the public servant to explain as to why he had received the money. A public servant may misguide, mislead or befool his victim to pay him illegal gratification knowing fully well that he is not in a position to help him and as such it can be no defence for him to say that since he was not in a position to help the complainant/victim the money received by him does not amount to illegal gratification."
32. During the course of arguments, it is submitted by Ld. Defence Counsel that though other persons including the Traffic Inspector were available at the spot and nonjoining of any of them in the raid proceedings is fatal for the case of the prosecution. I do not find any force in the said submission of Ld. Defence Counsel in view of the fact that since an independent witness i.e. PW3/Zubair Ahmad, Panch witness had already been joined in the proceedings by the PW7/Raid Officer, nonjoining of any other person available at the spot cannot be over emphasized. My said view is also found supported from the judgment reported as 2011 V AD (DELHI) 500, Anna Wankhade Vs. Central Bureau of Investigation (Through C.C. No. 25/12 Page No. 31 of 37 State), wherein it was held in Para 21 as under: "21. There is no dispute with regard to the proposition regarding desirability of association of independent witnesses by the police so as to lend more credence and authenticity to the case, but there is also no dispute that nonassociation of the independent witnesses per se for any reason whatsoever was in itself not enough to discard the prosecution witnesses or throw away the case as a whole. In the present case, CBI associated two independent witnesses on the written requisition made to the office of NDMC. Since the prosecution/CBI already had two independent witnesses, who had been informed and apprised about the technicalities involved in the procedure during the trap proceedings, it was not necessary for the IO to have joined other public witnesses at the time of apprehension. May be to avoid the risk of such a raw public person getting won over or being unable to understand the proceedings at the last moment of raid, that the IOs usually avoid associating public witnesses at that stage in such type of cases."
C.C. No. 25/12 Page No. 32 of 37
33. I also do not find any force in the submission of Ld. Counsel for the accused that alleged recovery of the treated GC notes as against the accused is not sufficient to convict the accused for the charged offence. Once the accused is found to have accepted the bribe amount, it is for him to explain as to in which capacity he has accepted the same.
34. In the case of Dhanvantrai Balwantrai Desai V/s State of Maharashtra, AIR 1964 Supreme Court 575 it was held as under: "Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true C.C. No. 25/12 Page No. 33 of 37 one. The words 'unless the contrary is proved' which occurs in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.
35. It is also useful to refer to the decision of Hon'ble Supreme Court in case of M.Narsinga Rao V/s State of A.P. 2001 (1) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble High Court that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demand bribe. The Hon'ble High Court held as C.C. No. 25/12 Page No. 34 of 37 under: "It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under Section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
36. It is also useful to refer to the case of B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) where it was held as under: "that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case."
37. It was held in the case reported as State of AP Vs. Kommaraju Gopala Krishna Murthy 2000 (9) SCC 752, that when C.C. No. 25/12 Page No. 35 of 37 the amount is found to have passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused herein.
38. Once the bribe amount is recovered from the accused it is for the accused to explain as to how the bribe amount landed in his person. In the present case, the accused Sukhbir Singh has not given any justifiable explanation as to how bribe amount of Rs.5,000/ landed in his right side pocket of his pant from which it was recovered. The accused in his statement U/S 313 Cr.P.C.has taken the stand that he is innocent and falsely implicated in this case by the complainant as he has never demanded and accepted any bribe from the complainant but said bare plea of the accused appears to be meritless and can be of no help for the accused.
39. In view of the aforesaid materials as available on the record, I am of the considered view that the presumption as contemplated U/S 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused Sukhbir Singh.
40. In view of the aforesaid discussion, I have no hesitation to C.C. No. 25/12 Page No. 36 of 37 safely conclude that the prosecution has successfully established its case as against the accused Sukhbir Singh for the charged offence and therefore, the accused Sukhbir Singh is held guilty and convicted for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988.
41. Let accused Sukhbir Singh be heard separately on the point of sentence.
Announced in the open court on this 9th day of April, 2012 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 25/12 Page No. 37 of 37