Delhi District Court
State vs . 1. Krishan Kumar, on 16 July, 2011
1
IN THE COURT OF MS. SANGITA DHINGRA SEHGAL,
SPECIAL JUDGE, ANTI CORRUPTION BRANCH, DELHI
CC No. 2/10
Unique Case ID number 02401R0274822006
State Vs. 1. Krishan Kumar,
S/o, Sh. Bhagwat Prasad,
R/o, Flat no. 505, Timarpur,
Delhi - 6
2. Shyam Babu,
S/o, Sh. Khushi Ram Sharma,
R/o, E124, West Jyoti Nagar,
Shahdara,
Delhi
3. Shammi Kumar,
S/o, Sh. Luda Ram,
R/o, 7/28A, Vijay Nagar,
Delhi
FIR No. : 10/05
Under Section : 7 & 13 (i) (d) of Prevention of
Corruption Act, 1988 & 120 B
IPC
Police Station : Anti Corruption Branch.
FIR No. 10/05 1/35
2
Date of filing of chargesheet : 01/04/2006
Date on which order was reserved : 05/07/2011
Date of decision : 16/07/2011
JUDGMENT
The case of the prosecution is that Complainant Ajay Kumar (PW7) lodged a Complaint Ex.PW1/A in the Anti Corruption Branch that he was involved in case FIR no.738/04, Under Section 307/34 IPC, Police StationModel Town, Delhi in which he was granted Anticipatory bail on 23.12.2004 from the Court of Sh. I.S. Mehta, Additional Sessions Judge, Tis Hazari, Delhi and SI Krishan Lal, Investigating Officer of the case was demanding Rs.15,000/ for furnishing and accepting his bail bond. Beat Constable H.C. Shyam Babu was continuously threatening to implicate him in a false case, if he failed to pay the bribe. Both SI Krishan Lal and HC Shyam Babu had called him to Hanuman Mandir, Vijay Nagar, Delhi on 11.02.2005 at 9 PM with the demanded bribe money.
2. On the basis of the Complaint Ex.PW1/A a trap was laid by FIR No. 10/05 2/35 3 the Anti Corruption Branch and SI Krishan Kumar (not Krishan Lal) and HC Shyam Babu of Police StationModel Town, Delhi were caught red handed while demanding / accepting Rs.5,000/ as illegal gratification from the Complainant (PW7) through Property Dealer Shammi Kumar in presence of Panch Witness Ravinder Swaroop (PW1), Assistant Collector, Delhi Financial Corporation, New Delhi.
3. Twofold charges were framed against the accused persons (i) that accused SI Krishan Kumar and accused HC Shyam Babu posted in the Police Station - Model Town, Delhi conspired with accused Shammi Kumar, Property Dealer to accept bribe from Complainant and in pursuance of the said conspiracy, accused SI Krishan Kumar and accused HC Shyam Babu demanded and accepted bribe of Rs.5,000/ from the Complainant through accused Shammi Kumar for accepting the bail bond of the Complainant in case FIR No. 738/04, Under Section307/34IPC, Police Station - Model Town, Delhi in which the Complainant had been granted Anticipatory Bail and thereby committed an offence punishable Under Section 7/120B IPC of the Prevention of the Corruption Act, 1988
(ii) that accused SI Krishan Kumar and accused HC Shyam Babu FIR No. 10/05 3/35 4 obtained Rs.5,000/ from the Complainant as a pecuniary advantage for themselves by corrupt or illegal means or otherwise by abusing their position as a public servant and committed an offence of criminal misconduct as specified under section 13(i)(d) and punishable Under Section 13(2) of the Prevention of Corruption Act, 1988.
4. In order to bring home the charges prosecution examined 13 witnesses before the Statements of the accused persons were recorded Under Section 313 of the Code of Criminal Procedure.
5. In defence, the accused persons claimed to be innocent and denied the demand and acceptance of the bribe amount. Besides, the defence raised by accused SI Krishan Kumar is that the Complainant (PW7) was granted Anticipatory Bail by Ld. Additional Sessions Judge during the tenure of SI Krishan Lal who was the Investigating Officer of case FIR No.738/04 registered against the Complainant (PW7) and his identity has been mixed up with the Previous Investigating Officer. In fact, he never demanded or accepted any bribe from the Complainant (PW7) and has been falsely implicated in this case. Accused HC Shyam FIR No. 10/05 4/35 5 Babu took up a defence that he was on patrolling duty in the area of Maurice Nagar, Delhi and was called to assist accused SI Krishan Kumar for his official work and has been falsely implicated in this case. The defence raised by accused Shammi Kumar also is that he has been falsely implicated.
6. Accused SI Krishan Kumar was represented by Sh. R.S. Singhal, Advocate, accused HC Shyam Babu by Sh. H.K. Sharma, Advocate and accused Shammi Kumar by Sh. Ashok Soni, Advocate.
7. I heard the arguments and perused the record.
8. The Prosecution examined 3 material witnesses i.e. Complainant Ajay Kumar (PW7), Panch Witness Ravinder Swaroop (PW1) and Raid Officer Hem Chand (PW13).
9. It is contended on behalf of accused SI Krishan Kumar that the Complainant (PW7) turned hostile and failed to identify him and further the sole testimony of the Panch Witness (PW1) has not been corroborated by any other witness and cannot be relied upon. It is argued that in fact accused SI Krishan Kumar had gone to the Office of Vikas FIR No. 10/05 5/35 6 Properties for the purpose of causing formal arrest of the Complainant (PW7) and was present there in connection with his official work. It is argued that the prosecution has failed to lead any incriminating evidence against SI Krishan Kumar who did not demand bribe from the Complainant (PW7) nor received the same and thus deserves acquittal.
10. It is contended on behalf of accused HC Shyam Babu that he is innocent and never demanded or accepted any bribe. In fact, he was on patrolling duty in the respective area and was called by accused SI Krishan Kumar to assist him in his official work.
11. It is contended on behalf of accused Shammi Kumar that Panch Witness (PW1) is a handpicked witness of the officials of Anti Corruption Branch and the trap laying officers were interested in the successful completion of their raid and hence he has been falsely implicated in this case by the officials of Anti Corruption Branch.
12. It is true that Complainant (PW7) turned hostile but it is a settled law that the evidence of a witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness cannot be treated as effaced FIR No. 10/05 6/35 7 or washed off the record altogether but the same can be accepted to the extent the version is found to be dependable on a careful scrutiny thereof.
13. It is useful to refer to the case of Hazari Lal V/s State ( Delhi Admn. ) AIR 1980 Supreme Court 873 wherein it has been held:
"even an uncorroborated statement of a Raid officer can be relied upon. 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 Panch 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 FIR No. 10/05 7/35 8 neighbouring room. He deposed that accused neither demanded the amount from him nor accepted the amount. The Panch Witness who went along with the complainant could not be examined as he became insane and other panch 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."
14. In this background, let me examine in the first instance the FIR No. 10/05 8/35 9 testimony of the material witnesses examined by the prosecution.
Complainant (PW7) deposed that he went to the Police Station-Model Town, Delhi to fill in the Bail Bond as he had been granted Anticipatory Bail by the Ld. Additional Sessions Judge, Delhi in case FIR no. 738/04, Under Section 307/34 IPC, PSModel Town, Delhi and SI Krishan Lal had demanded Rs.15,000/ on which he had lodged a Complaint Ex.PW1/A in his own handwriting in the Anti Corruption Branch and signed the same. He further deposed that he produced 10 GC notes of Rs.500/ each to the Raid Officer (PW13), the numbers of which were noted in the preraid report Ex.PW1/B. The Raid Officer (PW13) had applied some powder on the GC notes and got it touched with the right hand of the Panch Witness (PW1) and then his right hand was dipped in a clear solution, which turned pink. The Raid Officer (PW13) explained the characteristics of the powder to him as well as to the Panch Witness (PW1). The powdered GC notes were given to him and he kept the same in the left pocket of his shirt and he was instructed to give the money on demand. The Panch Witness (PW1) was instructed to give a signal by waiving his hand on his head on the completion of the FIR No. 10/05 9/35 10 transaction. Complainant (PW7) has deposed that a preraid proceedings Ex.PW1/B were recorded by the Raid Officer (PW13) and he signed the same and thereafter the raiding party departed from Police Station - Anti Corruption branch and reached near Vikas Properties, Vijay Nagar, Delhi where he along with the Panch Witness (PW1) were asked to wait outside the Shop of Vikas Properties, Vijay Nagar, near Hanuman Mandir, Delhi and the Raid Officer (PW13) along with his team members took their respective positions. This witness deposed that he along with the Panch Witness (PW1) entered the shop of Vikas Properties where some persons were sitting. He further deposed that he saw Constable Hemant sitting inside the shop who had been demanding money from him on behalf of SI Krishan Lal. The persons sitting inside the shop started moving out and he noticed that the tainted money which he was carrying was missing from his pocket and he brought this fact to the notice of the Panch Witness (PW1), who gave a predetermined signal to the Raiding Party which arrived at the scene. The Complainant (PW7) deposed that he did not give the tainted money to any person nor any person made any demand of bribe from him.
FIR No. 10/05 10/35 11
15. Panch Witness (PW1) deposed that he was on duty in the Anti Corruption Branch on 11.2.2005 and Complainant (PW7) made a Complaint Ex.PW1/A about the demand of bribe of Rs.15,000/ by accused SI Krishan Lal and HC Shyam Babu and the bribe was to be handed over in the office of Vikas Properties, Vijay Nagar, Delhi. Panch Witness (PW1) deposed that Complainant (PW7) lodged a Complaint Ex.PW1/A in his own handwriting and signed the same in his presence and he also appended his signatures on the said Complaint. He further deposed that Complainant (PW1) produced 10 GC notes of Rs.500/ each to the Raid Officer (PW13), numbers of which were recorded in the pre raid report Ex.PW1/B and the GC notes were treated with Phenolphthalein Powder. Thereafter, the Raid Officer (PW13) asked him to touch the GC notes and dipped his fingers in a clear solution and when he dipped his fingers, the solution turned pink. The treated GC notes were handed over to the Complainant (PW7) who put the notes in the left side pocket of his shirt. Thereafter, he washed his hand and the pink solution was thrown away. The Complainant (PW7) was directed to hand over the treated notes to the person who demanded bribe. The FIR No. 10/05 11/35 12 Panch Witness (PW1) deposed that he was directed to remain close to the Complainant (PW7) to hear the conversation, which may take place between the Complainant (PW7) and the person demanding the bribe and to see the transaction and give a signal by waiving his hand twice on his head after the transaction was complete. According to the Panch Witness (PW1), the entire proceedings were recorded in the preraid report Ex.PW1/B and he signed the same. Thereafter, he along with the Complainant (PW7), Raid Officer (PW13) and other officials of Anti Corruption Branch left for raid in a Govt. vehicle at 9.10 PM and reached Maurice Nagar, Delhi. At 9.40 PM, he along with the Complainant (PW7) entered the Office of Vikas Property Dealer, where accused SI Krishan Kumar and HC Shyam Babu were found present. In the office of Vikas Property, Vijay Nagar, Delhi HC Shyam Babu enquired from the Complainant (PW7) about the whereabouts of accused Shammi Kumar the proprietor of Vikas Properties, Vijay Nagar, Delhi. The Complainant (PW7) thereafter called accused Shammi Kumar on phone who reached there immediately. Panch Witness (PW1) deposed that accused SI Krishan Kumar enquired from the Complainant (PW7) about the identity FIR No. 10/05 12/35 13 of the Panch Witness (PW1), who informed accused SI Krishan Kumar that Panch Witness (PW1) was his relative and would stand surety for him, after which accused SI Krishan Kumar opened the police file and started filling in the bail bond. Panch Witness (PW1) further deposed that accused SI Krishan Kumar asked him about his address and on hearing that he was resident of Ghaziabad, asked the Complainant (PW7) to arrange for another surety. Accused SI Krishan Kumar then filled in a fresh bail bond and surety bond and accused HC Shyam Babu went out of the office of the Vikas Properties, Vijay Nagar, Delhi and signaled accused Shammi Kumar and the Complainant (PW7) to come out of the office. Panch Witness (PW1) deposed that he remained in the Office of the Vikas Properties, Vijay Nagar, Delhi and saw that there were some talks between accused Shammi, HC Shyam Babu and the Complainant (PW7), after which he joined them and saw that Complainant (PW7) took out the powdered treated 10 GC notes of Rs.500/ each from his pocket and passed on to accused Shammi Kumar, Proprietor of Vikas Properties, Vijay Nagar, Delhi who received the same in his hand and accused HC Shyam Babu, who was wearing jacket opened the same in a manner that FIR No. 10/05 13/35 14 the pocket of the jacket was visible to accused Shammi Kumar who put the notes in the inner pocket of his jacket by saying "Rakho Ye Theek Hai, Bahut Hain". Thereafter accused HC Shyam Babu settled the GC notes in the inner pocket of his jacket properly by pushing the notes inside the pocket with his right hand. Panch Witness (PW1) deposed that thereafter both accused Shammi Kumar and HC Shyam Babu went inside the office of the Vikas Properties, Vijay Nagar, Delhi while he remained outside and gave the predetermined signal by waiving his hand twice on his head. On seeing the signal, the Raid Officer (PW13) along with two Sub Inspectors came to the Office of Vikas Properties, Vijay Nagar, Delhi. The Raid Officer (PW13) disclosed his identity to all the three accused persons and challenged them that they received bribe amount of Rs.5,000/. Panch Witness (PW1) deposed that he told the Raid Officer (PW13) that accused HC Shyam Babu had received the bribe. The Raid Officer (PW13) challanged accused HC Shyam Babu and offered his search, which he declined. The search of the inner pocket of jacket of accused HC Shyam Babu resulted in the recovery of 10 GC notes of Rs. 500/ each and the serial numbers of the recovered GC notes when tallied FIR No. 10/05 14/35 15 with the serial numbers mentioned in the preraid report Ex.PW1/B were found to be the same. The right hand wash of accused HC Shyam Babu was taken in a colourless solution, which turned pink. Similarly, the wash of the inner pocket of his jacket and the wash of the pocket of his shirt was taken in a colourless solution, which also turned pink. All these solutions were transferred in six empty small clean bottles and marked paper slips were pasted on these bottles which were signed by him, the Complainant (PW7) and the Raid Officer (PW13). The solutions were taken into possession vide memo Ex.PW1/C. Thereafter the right hand wash of accused Shammi Kumar was also taken in a colourless solution, which turned pink and the solution was sealed in two empty small clean bottles and labels were pasted on these bottles which were signed by him, Complainant (PW7) and the Raid Officer (PW13). These two bottles were taken into possession vide memo Ex.PW1/D. Panch Witness (PW1) further deposed that the police file pertaining to case FIR 738/04 was also seized from accused SI Krishan Kumar vide memo Ex.PW1/E, which bears his signatures at Point A. The 10 GC notes of Rs.500/ each were also taken into possession vide memo Ex.PW1/F. The personal FIR No. 10/05 15/35 16 search of accused HC Shyam Babu, SI Krishan Kumar and Shammi Kumar was conducted vide memo Ex.PW1/G, PW1/H and PW1/J respectively. The Panch Witness (PW1) deposed that numbers of the 10 GC notes mentioned in the memo Ex.PW1/F were tallied with the numbers of the GC notes produced by the Complainant (PW7) in the Anti Corruption Branch and the recovered GC notes have been proved as Ex.P1 to P10 and 8 bottles sealed with the seal of CFSL have been proved as Ex.P11 to P18.
16. The other witnesses examined by the prosecution are Sh. R.K. Budhiraja, SHO PSKeshav Puram (PW2) who proved the attested copy of the file pertaining to FIR no. 738/04, PSModel Town as Ex.PW2/B. Head Constable Shaukat Ali (PW3) collected the exhibits i.e. four sealed bottles with the seal of HC from MHC(M), PSCivil Lines and deposited the same in the FSL, Rohini. Constable Kapil Dev (PW4) took the Rukka from Inspector Hem Chand and went to PSAnti Corruption Branch for registration of the case. HC Kartar Singh (PW5) deposed that the case property was deposited in the Malkhana vide entry Ex.PW5/A. SI Sumer Singh (PW6) collected a sealed envelope from FIR No. 10/05 16/35 17 MHC(M) PSCivil Lines and deposited the same in FSL Rohini. Constable Rajesh Kumar (PW8) proved the Duty Roaster dated 11.2.2005 as Ex.PW8/A1 & Ex.PW8/A2. Sh. Sanjay Kumar (PW9) proved the specimen handwriting of accused SI Krishan Kumar and accused HC Shyam Babu as Ex.PW9/A1 to PW9/A6 and PW9/B1 to PW9/B4. ASI Ashiq Ali (PW10) proved the original case file of FIR No. 738/04, U/S 307/34 IPC as Ex.PW10/A. ACP R.C. Singh (PW11) proved the biodata of accused SI Krishan Kumar and accused Shyam Babu as Ex.PW11/A and Ex.PW11/B. Inspector Hari Chand (PW12) member of the raiding party took the custody of the accused persons, bribe money of Rs.5,000/, sealed bottles with the seal of HC and the sample seal, copies of rukka and the raid report. He prepared the site plan Ex.PW12/A and conducted personal search of accused Shyam Babu, Krishan Kumar and Shammi Kumar vide memo Ex.PW1/G, PW1/H and PW1/J respectively and got the accused persons medically examined. Sh. Rajesh Khurana (PW14) proved the sanction order Ex.PW14/A. FIR No. 10/05 17/35 18
17. IDENTITY OF ACCUSED SI KRISHAN KUMAR The defence raised on behalf of accused SI Krishan Kumar is that in fact FIR No. 738/04 was investigated by SI Krishan Lal and he has been implicated in the present case due to wrong identity. The prosecution examined Sh. R. K. Budhiraja, SHO Police Station Keshav Puram (PW2) who deposed that he had handed over the record pertaining to file of FIR No. 738/04, Under Section307/34 IPC, Police Station Model Town, Delhi to accused SI Krishan Kumar who was posted as SubInspector in Police Station Model Town, Delhi at the relevant time and the same was under his investigation. Even in the crossexamination PW2 reiterated that though the initial investigation of case FIR No. 738/04 was done by SI Krishan Lal, on his transfer on 27.12.2004 the investigation of this case was assigned to accused SI Krishan Kumar.
From the testimony of Sh. R.K. Budhiraja (PW2), it is proved beyond reasonable doubt that accused SI Krishan Kumar was the Investigating Officer of the FIR no. 738/04, Under Section-307/34 IPC, Police Station-Model Town, Delhi and had taken charge of the same on FIR No. 10/05 18/35 19 the transfer of SI Krishan Lal on 27.12.2004.
The Complaint Ex.PW1/A was lodged on 11.02.2005 and the incident regarding the demand and acceptance of bribe also took place on 11.02.2005 when Accused SI Krishan Kumar was the Investigating Officer. He has been identified by the Panch Witness (PW1) as the person who was sitting inside the office of Vikas Properties and filling in the bail bond on the relevant day. Accused HC Shyam Babu in his statement Under Section 313 Code of Criminal Procedure said "I am innocent and I never demanded or accepted any bribe and no one demanded or accepted any bribe in my presence. Being a person on patrol duty in the respective area, I was called to assist SI Krishan Kumar for his official work. I have been falsely implicated in this case". Accused SI Krishan Kumar has himself admitted his presence in Vikas Properties, Vijay Nagar, Delhi in the statement made by him Under Section 313 Cr.P.C. and said "I was present in the said office because I was called for the purposes of causing formal arrest of the Complainant of the present case and his release on bail bond / surety bond as per the orders, granting him anticipatory bail".
FIR No. 10/05 19/35 20
It is, therefore, abundantly clear that accused SI Krishan Kumar, Investigating Officer of the case FIR No. 738/04 was present on 11.2.2005 in the Vikas Properties, Vijay Nagar, Delhi and his identity has by no means been mixed up with the previous Investigation Officer SI Krishan Lal.
18. Unlawful Agreement The accused persons have been charged Under Section 120B IPC read with Section 7 & 13(i)(d) of Prevention of Corruption Act, 1988 that accused SI Krishan Kumar and HC Shyam Babu both posted in Police Station - Model Town, Delhi along with accused Shammi Kumar, a Property Dealer entered into criminal conspiracy to accept bribe from the Complainant (PW7) and in pursuance of the conspiracy both accused SI Krishan Kumar and accused HC Shyam Babu went to office of Vikas Properties, Vijay Nagar, Delhi whether Shyam Babu demanded and accepted the bribe of Rs.5,000/ from the Complainant (PW7) through coaccused Shammi Kumar which were demanded by SI Krishan Kumar for accepting the bail bond of the Complainant (PW7) in pursuance to the anticipatory bail granted in case FIR no. 738/04, Under Section 307/34 FIR No. 10/05 20/35 21 IPC, Police Station - Model Town, Delhi in which SI Krishan Kumar was the Investigating Officer.
19. Criminal conspiracy is a partnership in crime and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them and this joint responsibility extends not only to what is done by one of the conspirators.
20. It is a settled law that for an offence under Section 120B IPC, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done the illegal act; the agreement may be proved by necessary implication. It is not in dispute that mere presence is not sufficient to bring home an offence under Section 120B IPC unless it is shown that the accused is guilty of some overt act.
21. It is also well settled that a conspiracy ordinarily is hatched FIR No. 10/05 21/35 22 in secrecy and the evidence of conspiracy can be gathered from the chain of events and the circumstances which throw light on the conspiracy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence.
In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra (2008) 10 SCC 394 : (2009) 1 SCC (Crl.) 51 : (2008) 6 Scale 469, a Division Bench of Hon'ble Supreme Court held that :
"Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement."FIR No. 10/05 22/35 23
22. From the evidence on record it has emerged that Complainant (PW7) made a Complaint Ex.PW1/A in his own handwriting in the presence of the Panch Witness (PW1) and the Raid Officer (PW13) in the Anti Corruption Branch. It is also proved on record that Complainant (PW7) produced 10 GC notes in the denomination of Rs.500/ each which were treated with Phenolphthalein Powder to be handed over to the person who demanded bribe and the pre raid report Ex.PW1/B was prepared wherein the serial numbers of the GC notes were also recorded and it bears the signatures of Complainant (PW7), Panch Witness (PW1) and the Raid Officer (PW13).
It has further emerged from the evidence on record that Complainant (PW7) was called to the Vikas Properties, Vijay Nagar, Delhi to hand over the bribe money and that Complainant (PW7), Panch Witness (PW1) and the Raid Officer (PW13) went to Vikas Properties, Vijay Nagar, Delhi. The Panch Witness (PW1) identified accused SI Krishan Kumar and accused HC Shyam Babu and deposed that they were in the Office of Vikas Properties, Vijay Nagar, Delhi. Accused Shammi Kumar, the owner of the Vikas Properties, Vijay Nagar was FIR No. 10/05 23/35 24 telephonically called to his office by accused HC Shyam Babu. It has been proved from the testimony of the Panch Witness (PW1) that accused SI Krishan Kumar made enquiries from the Complainant (PW7) about his identity and he was introduced as a surety. The Panch Witness (PW1) has deposed that his surety bond was rejected being a resident of Ghaziabad and the Complainant (PW7) was asked to furnish another surety. This fact is admitted by accused SI Krishan Kumar in his Statement Under Section 313 Code of Criminal Procedure also. The Panch Witness (PW1) has deposed that another surety bond was furnished by Complainant (PW7) and while the procedural work was done by accused SI Krishan Kumar inside the Office of Vikas Properties, Vijay Nagar, Delhi, accused HC Shyam Babu went out of the office and called the Complainant (PW7) and accused Shammi Kumar to come out one by one. There were some talks between them after which the Panch Witness (PW1) saw that the Complainant (PW7) gave the powdered treated GC notes to the accused Shammi Kumar who received the same in his hand and thereafter passed on the GC notes to accused HC Shyam Babu, who opened his jacket in a manner that the inner pocket of his jacket was visible to FIR No. 10/05 24/35 25 accused Shammi Kumar, who put the notes in the inner pocket of his jacket and said "Rakho Ye Thik Hai Bahut Hai".
23. From the testimony of the Panch Witness (PW1), it is further proved that accused HC Shyam Babu settled the GC notes in the inner pocket of his jacket and returned inside the Office of Vikas Properties, Vijay Nagar, Delhi. The Panch Witness (PW1) gave a predetermined signal to the Raiding Party which arrived and the Raid Officer (PW13) got recovered the GC notes from the possession of accused HC Shyam Babu through Panch Witness (PW1). The serial numbers of the recovered GC notes when tallied with the serial numbers recorded in the preraid report Ex.PW1/B were found to be the same.
The right hand wash of accused HC Shyam Babu SBRHWI & II, wash of the inner pocket of his jacket JLNPWI & II and wash of the pocket of his shirt SLNPWI & II and that of right hand wash of accused Shammi Kumar SKRHWI & II support the version of the Panch Witness (PW1) that the tainted money was accepted by accused Shammi Kumar and passed on to accused HC Shyam Babu.
24. No doubt, the Complainant (PW7) did not support the case FIR No. 10/05 25/35 26 of the prosecution that he handed over the tainted GC notes to accused Shammi Kumar who in turn give them to accused HC Shyam Babu, but the Panch Witness (PW1) has proved beyond reasonable doubt that the tainted GC notes produced by the Complainant (PW7) in the Anti Corruption Branch were given by him to accused Shammi Kumar, who in turn give them to accused HC Shyam Babu. The Panch Witness (PW1) has stood the test of crossexamination.
25. The Raid Officer (PW13) corroborated the testimony of the Panch Witness (PW1) on all material aspects and I find no reason to disbelieve the version of the Panch Witness (PW1) and the supporting deposition of the Raid Officer (PW13) that both accused SI Krishan Kumar and HC Shyam Babu were present at the scene of occurrence and the bail bond of the Complainant (PW7) in case FIR No. 738/04, Under Section 307/34 IPC, Police Station - Model Town, Delhi was accepted in the Office belonging to accused Shammi Kumar and that the bribe money was handed over to accused Shammi Kumar, who transferred the same to accused HC Shyam Babu.
26. The fact that accused SI Krishan Kumar remained inside the FIR No. 10/05 26/35 27 Office of Vikas Properties, Vijay Nagar, Delhi and both accused HC Shyam Babu and Shammi Kumar came outside the Shop of Vikas Properties to accept the bribe money from the Complainant (PW7) does not absolve accused SI Krishan Kumar of the offences for which he has been charged. Ramesh Kumar (DW1) produced by accused SI Krishan Kumar does not come to his rescue as he introduced a new story altogether by deposing that at the time of acceptance of bail bond, accused HC Shyam Babu asked his brother Ajay Kumar, Complainant (PW7) to give his search and take out all the belongings available on his person. At that time, accused Shammi Kumar told HC Shyam Babu to mention 'Nil' in the personal search memo of Complainant (PW7) and the articles available on his person be kept aside. According to Ramesh Kumar (DW1) his brother handed over the money, papers to him, which he in turn gave to accused Shammi Kumar who kept those articles including the money on the table, when suddenly some police officials came to the Office of Vikas Properties, Vijay Nagar, Delhi and apprehended the accused persons.
The Defence Witness Ramesh Kumar (DW1) has rather FIR No. 10/05 27/35 28 identified accused SI Krishan Kumar as the police official who accepted his bail bond and confirmed the presence of all the accused persons at Vikas Properties, Vijay Nagar, Delhi.
The story introduced by Defence Witness (DW1) is palpably false as the recovery of the tainted money was made from the possession of accused HC Shyam Babu by the Panch Witness (PW1) in the presence of the Raid Officer (PW13).
27. The acts performed by accused Shammi Kumar and accused HC Shyam Babu are evident from the testimony of the witnesses examined by the prosecution. Even though, accused SI Krishan Kumar did not go out of the Office of the Vikas Properties, Vijay Nagar, Delhi to accept the bribe from the chain of events only one conclusion discussed above can be drawn from the conduct of accused SI Krishan Kumar that he along with accused HC Shyam Babu and accused Shammi Kumar entered into criminal conspiracy to do an illegal act and there was meeting of minds. The evidence of conspiracy can be gathered from the chain of events & circumstances detailed below which throw light on the conspiracy.
FIR No. 10/05 28/35 29
i) Complainant (PW7) was an accused in case FIR no. 738/04, Under Section 307/34 IPC, Police Station - Model Town, Delhi.
ii) SI Krishan Lal was the Investigation Officer of the abovesaid case till 27.12.2004.
iii) The anticipatory bail was granted by the court concerned vide order dated 23.12.2004.
iv) The bail bond was yet to be accepted. v) The Complainant (PW7) lodged a Complaint Ex.PW1/A
naming Sub Inspector Krishan Lal (Not Krishan Kumar) and HC Shyam Babu for demand of bribe of Rs.15,000/ to accept the bail bond.
vi) The Complaint Ex.PW1/A was lodged on 11.2.2005.
vii) The Complainant (PW7) was called to Vikas Properties, Vijay Nagar, Delhi, which fact has been proved from the testimony of the Complainant (PW7) and the statement of Ramesh Kumar (DW1) brother of the Complainant (PW7).
viii) The Complainant (PW7) had accompanied the Panch Witness (PW1) and the raiding party to the place of occurrence on 11.2.2005 and had carried the treated GC notes in his pocket. FIR No. 10/05 29/35 30
ix) Accused SI Krishan Kumar remained seated inside the office of Vikas Properties, Vijay Nagar, Delhi and kept doing the procedural work in the relevant file and accused HC Shyam Babu went outside and called accused Shammi Kumar and the Complainant (PW7).
x) There were some talks between accused HC Shaym Babu, the Complainant (PW7) and accused Shammi Kumar.
xi) The Complainant (PW7) gave the treated GC notes to accused Shammi Kumar who thereafter placed the tainted money in to the pocket of the jacket of accused HC Shyam Babu. Accused HC Shyam Babu thereafter settled the tainted money in his pocket with his own hands.
xii) The accused HC Shyam Babu and Shammi Kumar returned inside the office of Vikas Properties, Vijay Nagar, Delhi.
xiii) The raiding party arrived and recovered the tainted GC notes from the possession of accused HC Shyam Babu. The hand washes of accused HC Shyam Babu and accused Shammi Kumar and wash of the pocket of Jacket of accused HC Shyam Babu and that of wash of the pocket of his shirt were taken which were found positive. The FIR No. 10/05 30/35 31 handwriting and specimen signature of accused SI Krishan Kumar Ex.PW9/A1 to Ex.PW9/A6 and that of accused HC Shyam Babu Ex.PW9/B1 to Ex.PW9/B4 were taken and the same connect both the accused to the commission of the crime.
xiv) Accused SI Krishan Kumar was found sitting inside the Office of Vikas Properties. The identity of the accused SI Krishan Kumar has been proved from the testimony of the Panch Witness (PW1) and the Raid Officer (PW13). Even the Defence Witness (DW1) produced by the accused SI Krishan Kumar deposed that when the bail bond was furnished by him, the same was accepted by none else but accused SI Krishan Kumar.
28. It therefore falls that accused SI Krishan Kumar along with accused HC Shyam Babu went to the Office of Vikas Properties, Vijay Nagar, Delhi and called the Complainant (PW7) in the Office belonging to accused Shammi Kumar. Accused SI Krishan Kumar was the Investigating Officer in case FIR no. 738/04, Under Section 307/34 IPC, Police Station - Model Town, Delhi wherein the Complainant (PW7) had been granted Anticipatory Bail and the bail bond was to be furnished. FIR No. 10/05 31/35 32 The bail Bond Ex.PW10/A was furnished by the brother of Ajay Kumar Complainant (PW7) i.e. Ramesh Kumar (DW1) in the Office of Vikas Properties, Vijay Nagar, Delhi. It has also been proved on record that the bribe was accepted by accused HC Shyam Babu through accused Shammi Kumar and after accepting the bribe money outside the Office of Vikas Properties, Vijay Nagar, Delhi both accused HC Shyam Babu and Shammi Kumar had returned inside the Office of Vikas Properties, Vijay Nagar, Delhi. Accused SI Krishan Kumar, accused HC Shyam Babu and accused Shammi Kumar were part and parcel of the criminal conspiracy hatched to obtain bribe from the Complainant (PW7). No explanation has come forth to explain the reason for doing official work at a private place. The bail bond was to be accepted or rejected not in the Office of Vikas Properties, Vijay Nagar, Delhi but in the Police Station-Model Town.
Accused SI Krishan Kumar and accused HC Shyam Babu in furtherance of their common intention to take the bribe from Complainant (PW7), obtained the same through accused Shammi Kumar and the accused persons pursued their acts for the same object, each FIR No. 10/05 32/35 33 performing one part of the act and other part of the same act so as to complete it with a view to the attainment of the object which they were pursuing.
29. Conclusion: As a result of the above discussion, I am of the considered view that prosecution has been able to prove beyond reasonable doubt that accused SI Krishan Kumar, accused HC Shyam Babu and accused Shammi Kumar entered into criminal conspiracy for extracting Rs.15,000/ from the Complainant (PW7) and thereby all committed an offence punishable Section 120B IPC.
30. The prosecution has been further able to prove beyond reasonable doubt that pursuant to the criminal conspiracy both accused SI Krishan Kumar and accused HC Shyam Babu while being employed as a public servant obtained illegal gratification of Rs.5,000/ other than legal remuneration and thereby both committed an offence punishable under section 7 of the Prevention of Corruption Act, 1988 read with Section 120B IPC .
31. It is also proved beyond reasonable doubt that in furtherance FIR No. 10/05 33/35 34 of the criminal conspiracy both accused SI Krishan Kumar and accused HC Shyam Babu obtained illegal gratification of Rs.5,000/ as a pecuniary advantage by corrupt or illegal means by abusing their position as a public servant and thereby both committed an offence of criminal misconduct as specified under section 13 (1)(d) punishable 13 (2) of the Prevention of Corruption Act, 1988 read with Section 120B IPC.
32. Result:
As a result of the above, the Court is left with no option but to convict accused SI Krishan Kumar, accused HC Shyam Babu and accused Shammi Kumar under section 120 B IPC.
Accused SI Krishan Kumar is also convicted for committing an offence punishable under section 7 of the Prevention of Corruption Act, 1988 read with Section 120B IPC and also for offence under section 13 (1)(d) punishable under section 13 (2) of the Prevention of Corruption Act, 1988, read with Section 120B IPC.
Accused HC Shyam Babu is also convicted for committing an offence punishable under section 7 of the Prevention of Corruption FIR No. 10/05 34/35 35 Act, 1988 read with Section 120B IPC and also for offence under section 13 (1)(d) punishable under section 13 (2) of the Prevention of Corruption Act, 1988 read with Section 120B IPC. Ordered accordingly. Let all the accused be heard on the point of sentence.
Announced in the SANGITA DHINGRA SEHGAL
Open Court on 16.7.2011 SPL. JUDGE, ACB, DELHI
FIR No. 10/05 35/35