Delhi District Court
Cbi vs . Kapil Kumar S/O Sh B L Kaul, R/O on 31 January, 2012
1
IN THE COURT OF V .K .MAHESHWARI
SPECIAL JUDGE: (P C Act)03 CBI DELHI
Corruption Case No.12/2009
CBI Vs. Kapil Kumar s/O Sh B L Kaul, r/o
9A/65 Second Floor, WEA, Karol
Bagh, New Delhi.
Date of Institution 30.05.2009
R.C No. 44(A)/08/CBI/ACB/N.D
Under Section U/s 7 and 13(2)r/w 13(1)
(d) of PC ACT 1988
Arguments concluded
on 21.1.2012
Date of order 27.1.2012
JUDGMENT:
FACTS OF THE CASE .
According to prosecution Smt Kamlesh w/o Sh Adesh complainant alleged that Sh. Kapil Kumar, Asstt. Sanitary Inspector MCD Ward No.126/96, South Patel Nagar, New Delhi was demanding an illegal gratification of Rs.2800/ from her for regularization of her service as a substitute Safai Karamchari. She C C No.12/2009 1/75 2 has filed her complaint written in the handwriting of her brother Nanhe Ram, in this regard,as she is an illiterate lady. Complaint was verified on 6.11.2008 in the presence of independent witness Shri Manoj Kumar, Clerk, Corporation Bank, CGO Complex N Delhi and brother of complainant Sh Nanhe Ram. During the verification of complaint, conversation held between complainant and accused Kapil Kumar was recorded. The call details containing incoming calls and outgoing calls of M. No.9212218112 of Kapil Kumar and 9971831506 used by Smt Kamlesh were collected during investigation. A Demand verification cum Recording Memo dt 06.11.2008 was also prepared on the same day. 2 After verification, a regular Case vide RC DAI2008 A0044 dated 07.11.2008 was registered against Shri Kapil Kumar. Two independent witnesses namely S/Shri Om Parkash and Hansraj from DDA were called. Trap team was constituted headed by Shri Amit Vikram Bhardwaj, Inspector of Police as a Trap Laying Officer , including other CBI officers/ officials, complainant her brother Sh Nanhe Ram and two independent witnesses. 3 Complainant produced a sum of Rs.2800/ consisting of 5 numbers of GC notes of Rs.500/ denomination each and 3 numbers of GC notes of Rs.100/ denomination. The number of GC C C No.12/2009 2/75 3 notes were recorded in the handing over memo dated 07.11.2008. A practical demonstration pertaining to the reaction of Phenolphthalein Powder with solution of sodium carbonate was performed by independent witness Om Parkash . 4 Personal search of complainant, Smt Kamlesh was conducted by a Lady Police Constable and she was not allowed to keep anything incriminating except the bribe amount of Rs.2800/ treated with phenolphthalein powder and kept in the small ladies pocket purse of complainant. The complainant was directed to hand over the bribe amount of Rs.2800/ to the accused only on his specific demand and not otherwise or on his specific directions to some other person or by gesture.
5 A Sony Digital voice recorder alongwith few blank audio cassettes for the purpose of recording possible conversation and a compact recorder was arranged. Formal voices of Sh Hans Raj and Shri Om Parkash, independent witnesses were recorded in it. The said digital recorder was handed over to the complainant in 'on' position before she had to approach to accused . All the members washed their hands with soap and water.
6 TLO Inspector Amit Vikram Bhardwaj directed all the trap team member to watch the transaction of bribe money between C C No.12/2009 3/75 4 accused and complainant Smt Kamlesh . The complainant was also directed to give signal to the trap party after the transaction of bribe money was over by removing her spectacles. All the members except complainant mutually searched each other . A handing over memo was prepared which was signed by all the trap team members.
7 After completing the pretrap formalities, the CBI trap team reached at the Patel Nagar Metro Station at about 1250 hours. After parking the vehicles at a safer distance, the complainant was again briefed by TLO and reminded her about the pre appointed signal. The TLO asked the complainant to contact Sh Kapil Kumar on his mobile phone from her phone in order to confirm the presence of accused in his office. Thereafter complainant was given the digital recorder in "on" position with the directions to proceed to the office of Kapil Kumar . At about 01.25, the complainant entered the office of accused Kapil Kumar . After about 2025 minutes, complainant came out from the said office and gave the pre appointed signal by taking off her spectacles. On getting the said signal of completion of transaction of bribe, TLO and other team member including independent witnesses and Nanhe Ram rushed towards the said office. The complainant identified the accused C C No.12/2009 4/75 5 Kapil Kumar. Immediately, right and left hand of Kapil Kumar were caught hold off. On being asked about the demand and acceptance of bribe of Rs.2,800/ from complainant Smt Kamlesh, accused Kapil Kumar kept mum and stated that he had given the loan to her which he asked her to return. On this complainant was asked by the TLO about her dues, which she denied.
8 Complainant Smt Kamlesh narrated the sequence of events and stated that Kapil Kumar by gesture of hands and words had demanded the bribe money and he had accepted the same with his right hand and after counting the same with both hands kept the bribe money in his left upper shirt pocket. After counting the bribe money of Rs.2800/ accused returned Rs.100/ to her from the said Rs.2800/ . She also stated that Kapil Kumar demanded and accepted the bribe of Rs.2800/ in the presence of Sh Mahesh Peon. 9 The hand washes of both the hands of accused Kapil Kumar were taken . The said pink solution were kept in two clean glass bottles marked as 'RHW' and LHW . The said bottles were sealed with CBI seal.
10 On the directions of TLO Sh Hans Raj recovered the said money of Rs.2700/ from left upper pocket of the accused Kapil Kumar. The said currency notes were tallied with the distinctive C C No.12/2009 5/75 6 number as recorded in the handing over memo, which was found same. The wash of left side shirt pocket of accused was taken in a separately prepared colorless solution of sodium carbonate and water . The said solution was poured in a clean glass bottle marked as 'LSSPW' . Rs.100/ which was given to the complainant by accused from said tainted money of Rs.2800/ was taken back from the complainant.
11 The digital recorder which was given to complainant was taken back . Same was played and the recording was transferred into separate cassettes, the cassette was marked as 'Q1' denoting spot conversation.
12 Accused was arrested vide a separate arrest cum personal search memo dated 07.11.08. A rough site plan was prepared depicting position of trap team members, witnesses etc. The trap proceedings were recorded in a separate Recovery memo dt 07.11.2008 on the spot and signed by all the trap team members . 13 Copies required U/S 207 Cr P C supplied to accused. After hearing both the parties vide order dt. 22.7.2009 charge has been framed against the accused U/s 7 & 13 (2) r/w Sec. 13(1)
(d)of P C Act 1988 against accused Kapil Kumar . Accused pleaded not guilty to the charge and claimed trial. Hence, this trial. C C No.12/2009 6/75 7 14 Prosecution, in order to prove its case, has produced following witnesses:
PW1 Sh Raj Pal Singh has proved Muster Roll of Safai Karamchari Ex PW1/A, list of Safai Karamchari Ex PW1/B to Ex PW1/E and attendance sheet Ex PW1/F. PW2 Sh Ram Yadav has also proved the documents Ex PW1/A to Ex PW1/F. PW3 Sh. R D Srivastava has proved sanction order Ex PW3/A for prosecution of accused Kapil Kumar.
PW4 Sh M N Vijayan has proved call details of Mobile No. 9212218112 vide Ex PW4/A, customer application form Ex PW4/B and Ex PW4/C. PW5 Shri Joginder Kumar has also proved Muster roll Ex PW1/F and salary bill Ex PW5/A. PW6 Sh Manoj Kumar has proved the complaint filed by Kamlesh Ex PW6/A, Demand verification cum recording Memo Ex PW6/B, Transcription cum voice identification Memo Ex PW6/C and transcription Ex PW6/D. PW7 Sh Mahesh Kumar, has deposed orally and not proved any document.
PW8 Sh Mukesh Kumar Goel has proved account opening C C No.12/2009 7/75 8 form , specimen signatures card and statement of account of complainant Kamlesh Ex PW8/A to PW8/C. PW9 Sh R K Singh Nodal Officer, has proved call details and subscriber enrollment form alongwith annexures Ex PW9/A to PW9/E. PW10 Smt Kamlesh has also proved complaint Ex PW6/A, verification memo Ex PW6/B. She has also proved handing over memo Ex PW11/A, recovery memo Ex PW10/A, copy of FIR Ex PW10/B , transcription cum voice identification memo Ex PW10/C, copy of transcription Ex PW10/D and recovery memo Ex PW11/D. PW11 Nanhey Ram has also proved complaint Ex PW6/A which was written by him on behalf of complainant, demand verification cum recording memo Ex PW6/B, handing over memo Ex PW11/A, recovery memo Ex PW11/D. PW12 Sh Hans Raj has also proved handing over memo Ex PW11/A, recovery memo Ex PW11/D, personal search cum arrest memo Ex PW14/5, rough site plan Ex PW14/6, voice specimen memo Ex PW14/7, transcription cum voice identification memo Ex PW 10/C, transcription Ex PW10/D. PW13 V B Ramteke Sr Scientific Officer Grade II has proved his report Ex PW13/A. C C No.12/2009 8/75 9 PW14 Sh Om Parkash has also proved handing over memo Ex PW11/A , recovery memo Ex PW11/D, personal search cum arrest memo Ex PW14/5, rough site [plan Ex PW14/6, voice specimen memo Ex PW14/7.
PW15 Sh Deepak Kumar Tanwar Sr . Scientific Officer has proved his report Ex PW15/A .
PW16 Sh Anil Bisht has also proved FIR Ex PW16/A, permission sought by him U/S 17 of P C Act Ex PW16/B. During investigation he has seized documents vide Ex PW16/C, PW9/F, ExPW4/D, Ex PW4/A to Ex PW4/C, Ex PW6/C,Ex PW6/D,Ex PW10/C and Ex PW10/D. He has proved forwarding letter Ex PW16/D and charge sheet Ex PW16/E. PW17 Sh Amit Vikram Bhardwaj has also proved complaint Ex PW6/A, demandcumverification memo Ex PW6/B, handing over memo Ex PW11/B , Ex PW10/A, Ex PW14/5, Ex PW14/6 and Ex PW14/7.
15 Statement of accused recorded U/s 313 Cr. PC, wherein accused has denied all the allegations and the evidence produced by prosecution against him. He has stated that he is innocent and has been falsely implicated in this case. Accused has not led any C C No.12/2009 9/75 10 evidence in his defence.
PROSECUTION ARGUMENT 16 Ld. Special Prosecutor Sh. Brajesh Shukla argued that prosecution for bringing home the charges has examined altogether 17 witnesses including independent witnesses and complainant. During argument he submitted that PW1 Sh. Ram Raj Singh, PW2 Sh. Ram Kumar Yadav have proved the documents which were having the nexus with the commission of offence. PW3 Sh. R D Srivastava has proved sanction for prosecution Ex PW3/A which in itself is speaking one. PW4 Sh. M N Vijayam has proved the documents relating to mobile of accused. PW5 Sh. Joginder Kumar has proved the master role of Safai Karamchari relating to complainant. PW6 Sh. Manoj Kumar Nonia was an independent witness who participated in verification of demand and has proved verification memo Ex PW6/B and transcription cum voice identification memo Ex PW6/C. PW7 Sh. Mahesh Kumar, peon in MCD office has proved the single line statement i.e. he heard complainant Kamlesh saying "Lo Babuji". Thereafter he was declared hostile. PW8 Sh. Mukesh Goel has proved specimen signature card relating to account No. 29432 of complainant Smt. Kamlesh. PW9 Sh.R K Singh has proved call details of mobile No. C C No.12/2009 10/75 11 9971831506 and 9871766372. PW10 Smt. Kamlesh, the complainant has proved initial demand and further detailed the incident of demand and acceptance alongwith recovery as per stature of her acumen . PW11 Sh. Nanhe Ram has also deposed the linking evidence of demand and acceptance. PW12 Sh. Hans Raj and PW14 Sh. Om Parkash , both independent witnesses have established the ingredients of offence of Section 7 and 13 (2) of P C Act committed by accused, however PW14 was declared hostile but his evidence has substantially corroborated the story of prosecution deposed by PW10 and 12 on all material points. PW15 Sh. Deepak Kumar Tanwar, PW16 Inspector Anil Bisht, IO of the case and PW17 Sh. Amit Vikram Bhardwaj have also played their role very well in narrating the prosecution story and as such they have established the element of demand, acceptance and recovery of bribe amount from the possession of accused.
DEFENCE ARGUMENTS 17 Arguments of Ld. Defence Counsel Sh. R N Sharma, in nutshell are that shadow witness has not accompanied the complainant to the office of accused at the time of trap. PW17 TLO has stated that shadow witness was not sent as complainant C C No.12/2009 11/75 12 forbade to take independent witness on the plea that accused will become suspicious but he has not been corroborated, in this regard by PW6 Manoj Kumar, PW10 Smt. Kamlesh, PW11 Nanhe Ram, PW12 Hans Raj and PW14 Om Prakash.
18 None has corroborated the claim of PW 17 that raiding party reached the spot at 12.50 PM on 7.11.08 and complainant entered in the office of accused at 1.25 PM. He has submitted that PW10 has deposed that she entered in the office of accused at about 2 PM or 2.15 PM while PW12 has deposed that they had gone inside the office of accused at about 1/1.30 PM. 19 Ld. Defence Counsel argued that prosecution has not been able to prove the alleged pre raid and post raid proceedings were completed in the manner as alleged. In this regard he has referred the deposition/cross examination of PW6 Manoj Kumar, PW7 Mahesh Kumar, PW10 Smt. Kamlesh, PW11 Nanhe Ram, PW12 Hans Raj and PW14 Om Parkash. It is argued that there is world of difference in the version given by all these witnesses in this regard.
20 Ld. Defence Counsel argued that prosecution has failed to prove the alleged demand of bribe by the accused and acceptance of tainted GC notes by him and the recovery of the same C C No.12/2009 12/75 13 from his possession. In this regard, he has also referred the statements of PW6 Manoj Kumar, PW7 Mahesh Kumar, PW10 Smt. Kamlesh, PW11 Nanhe Ram, PW12 Hans Raj and PW14 Om Parkash,PW16 SI Anil Bisht , IO of the case and PW17 A V Bhardwaj, TLO 21 Ld. Defence Counsel also argued that prosecution has failed to prove that case property remained untampered till it was sent to CFSL. It is submitted that prosecution has not produced Mohrar Malkhana to prove that none had tampered with the case proper;ty till it remained in the malkhana. No road certificate has been proved. Malkhana register has also not been produced or proved. Ld. Defence Counsel has also referred the statement of PW16 Anil Bisht IO of this case and PW17 Inspector A V Bhardwaj TLO of this case, in this regard.
21A Ld. Defence Counsel. argued that prosecution has not proved when and by whom the specimen voice of accused was taken which was allegedly sent to CFSL for comparison with the questioned voice of accused in the alleged tape recorded conversation, hence the report of PW15 Sh.Deepak Tanwar cannot be relied upon. It is argued that complainant; and PW14 Om C C No.12/2009 13/75 14 Prakash in their cross examination; by Ld. Sr. PP after declaring them hostile have supported the case of prosecution but the same cannot be relied upon. He has also argued that PW 12 Hans Raj, PW14 Om Prakash and PW17 A V Bhardwaj have deposed the version allegedly described to them by the complainant after the trap proceedings were over. The same cannot be relied upon being the hearsay evidence.
22 He has further argued that sanction for the prosecution of accused Ex PW3/A does not bear any date. Prosecution failed to prove when the documents and file was sent to sanctioning authority. Thus, sanctioning authority granted sanction for the prosecution of accused without going through the documents in a mechanical manner, therefore, the same is invalid. 23 Ld. Defence Counsel has filed detailed written submissions on behalf of accused which are on the judicial file hence I am not reproducing his arguments in detail in this judgment on account of brevity, however I will discuss his argument at appropriate stage, in this judgment. Ld. Defence Counsel placed reliance on following authorities in support of his arguments:
Mangat Ram Vs. State of Punjab 2004 (2) C C Cases (HC)61, C C No.12/2009 14/75 15 Tarlochan Singh Vs.State of Punjab 2003 (2) C C Cases (HC) 348, Karim Bux Vs. Rex AIR (37) 1950 Allahabad 494 and State through CBI Vs. Ravinder Singh Crimes Volume IV 1995(2).
PUBLIC SERVANT AND SANCTION
24 PWs 1, 2, 3 5 & 16 have deposed that on 7.11.2008 and prior thereto accused was working as Assistant Sanitary Inspector , in the Delhi Environment Management Services (DEMS).Ward No. 126/96, South Patel Nagar, Karol Bagh Zone, MCD, New Delhi thus he was a public servant . Even this fact has not been disputed on his behalf during the trial or at the time of addressing final arguments by Ld Defence counsel , thus it is undisputed that he was a public servant at the relevant time.
25 PW3 Sh R. D. Srivastava has deposed that in the year 2009 he was posted as Additional Commissioner, MCD. By virtue of his post he was competent to remove Kapil Kumar, who was the then working as Sanitary Inspector, from his post . After carefully examining the material put before him he had accorded the sanction for the prosecution of accused Kapil Kumar which is Ex PW3/A. Relevant portion of his statement in this regard is as under:
" By virtue of holding the post of Addl Commissioner, C C No.12/2009 15/75 16 MCD I was competent authority to remove Kapil Kumar who was working as Asstt. Sanitary Inspector . After perusing fully and carefully examining the material placed before me including statement of witnesses and documents collected during investigation and after being satisfied that it was a fit case of prosecution I accorded sanction for the prosecution of accused Kapil Kumar running in five sheets. Four sheets bears my initial and last sheet bear my signatures at point A. My official seal is also affixed underneath my signatures on the fifth page at point B. Same is Ex PW3/A."
26 Ld .Defence counsel argued that prosecution has failed to prove as to what documents/ file was sent to the sanctioning authority for his perusal. There is no evidence when the alleged file was sent to the sanctioning authority . The sanctioning authority has granted sanction without going through the evidence and documents pertaining to this case in a mechanical manner which is clear from the fact that even no date has been mentioned in the sanction order when it was accorded. In this regard he has referred the following part of the statement of PW16 Anil Bhist , the IO of the case:
" Sanction for prosecution of accused was obtained by me in this case. Request for granting sanction for the prosecution of accused was sent by S.P. It was not sent by me. However, it is in my personal knowledge that request for sanction was sent through a letter of SP. SP concerned has also taken file of this case from me but now I do not remember the date when he had taken the file from me. Now I do not recollect the duration during which file remained C C No.12/2009 16/75 17 with SP concerned. I had not prepared any memo with regard to handing over of file to S.P concerned. No memo was prepared with regard to receiving of file by me from S.P."
27 PW3 in his cross examination has deposed that he had received file from Vigilance Department of MCD through Dak . He has denied the suggestion that he had not received the file from Vigilance Department or he had passed the sanction order Ex PW3/A mechanically without applying his mind. He has specifically deposed that Ex PW3/A was dictated by him in his office. Relevant portion of his deposition in this regard is as under:
" It is incorrect to suggest that I had not received any file from Vigilance Department of MCD with regard to passing of sanction order Ex PW3/A . It is further incorrect to suggest that I had passed the order Ex PW3/A mechanically without applying my mind and without going through the documents . It is also incorrect to suggest that because of this reason no date is mentioned on Ex PW3/A. I O has not recorded my statement with regard to this case. Ex PW3/A was dictated by me in my office. It was typed by staff. It is incorrect to suggest that IO had brought a already typed order which I had signed without applying my mind."
28 It is correct that not date is mentioned when this order was passed by the sanctioning authority. I have carefully gone through the sanction order Ex PW3/A running in five sheets, it is a detailed order having all the relevant material particulars of this case. A bare perusal of this order reflects that sanctioning authority C C No.12/2009 17/75 18 has passed this order after due application of his mind. In these circumstances, merely because no date with regard to passing of this order is mentioned in Ex PW3/A it cannot be held that it has been passed without due application of mind.
29 Hon'ble Supreme Court has held that where the sanction order itself is a speaking order in such circumstances it is not necessary to prove it by leading evidence that sanctioning authority has applied his due mind. Reliance is placed on C S Krishnamurthy Vs. State of Karnataka 2005 IV AD (S.C.) 141 wherein in para No.9 it is observed as follows:
"Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No.40 and has deposed about his application of mind and after going through the reports of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is C C No.12/2009 18/75 19 justified."
30 In this regard, Hon'ble Supreme Court in Superintendent of police (CBI) Vs. Deepak Chaudhary - 1995 SCC (Crl.) 1095 has held as follows:
''We find force in the contention. The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refused to grant sanction. The grant of sanction, therefore, being administrative act the need to prove an opportunity of hearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice.''
31 Hon'ble Supreme Court in Kottha Perumal Vs. State Tr. Inspector of Police, Vigilance and Anti Corruption, AIR 2011 Supreme Court 356 has held as follows:
"Prevention of Corruption Act (49 of 1988) - Sanction to prosecute - Legality Examination of material facts by sanctioning authority - Sanction order specifically stating that statement of witnesses have been duly examined - Other materials such as copy of FIR as well as other official documents such as different mahazars were carefully examined Upon examination of statements C C No.12/2009 19/75 20 of witnesses as also material on record, sanctioning authority has duly recorded its satisfaction that appellant should be prosecuted - Sanction order is legal."
32 Ld Defence counsel in support of his arguments placed reliance on State through CBI Vs Ravinder Singh, IV 1995(2) Crimes85 wherein Hon'ble High Court has held as follows:
" (i) Prevention of Corruption Act Section 19 Sanction for prosecution statements recorded u/s 161 Cr P C and material or report u/s 173 Cr P C not placed before sanctioning authority Court rightly came to conclusion that there was total non application of mind while granting sanction."
33 Ld Defence counsel has also placed reliance Karim Bux Vs Rex AIR (37) 1950 Allahabad 494 wherein Hon'ble High Court of Allahabad has held as follows:
" It is correct that the Act does not prescribed any particular form of sanction; but sanction to prosecute a particular person for an offence implies, first a full knowledge of the facts upon which it is sought to prosecute him and, secondly a deliberate decision of the sanctioning authority that he may be prosecuted . These two things are necessary to be proved before it can be said that a particular order amounts to a sanction for prosecution. Furthermore, it is necessary that the sanction should be given after all the facts have been collected against an accused so that the facts have been collected against an accused so that the sanctioning authority has before it the material upon while the prosecution is to be launched."
34 I have carefully gone through both these authorities. C C No.12/2009 20/75 21 Ratio of law laid in these authorities is not applicable to the case in hand, firstly because facts and circumstances of this case, as discussed above, are entirely different from the facts and circumstances of these authorities, secondly both these authorities are of Hon'ble High Court while the authorities relied upon by this court, above, are of Hon'ble Supreme Court. It is well settled legal proposition that law laid down by Hon'ble Supreme Court will prevail over the law laid down by Hon'ble High Courts. 35 In view of above discussion, this Court is of opinion that prosecution has proved valid sanction for the prosecution of accused in this case.
DEMAND ACCEPTANCE AND RECOVERY.
36 Complainant Smt. Kamlesh was the then working as substitute Safai Karamchari under the supervision of accused Kapil Kumar who used to prepared muster roll of substitute Safai Karamchari . ASI has discretion to call any substitute Safai Karamchari as per PW1 Rajpal Singh and PW 2 Ramesh Kumar Yadav .
37 I have gone through the complaint Ex PW6/A, it is specifically mentioned in it that ASI Kapil Kumar was demanding Rs.2800/ as illegal gratification for allowing her to work as C C No.12/2009 21/75 22 substitute Safari Karamchari . This complaint is in the hand writing of Nanhay Ram, who is brother of complainant as complainant is illiterate and can only sign.
38 Complainant has appeared in the witness box as PW 10 she has proved her complaint Ex PW6/A. In her cross examination by Ld P.P she has stated that accused was insisting for one month salary which she has got incorporated in her complaint written by her brother . She lodged her complaint with CBI accordingly CBI after registering the case laid a trap . She had gone to the office of accused alongwith tainted GC notes of Rs.2800/ . Accused demanded money by gesture thereafter she handed over Rs.2800/ to him . Accused after counting the money had returned Rs.100/ to her . After coming out of the office of accused she had flashed the signal by removing her spectacles. CBI officers rushed in the office of accused, and caught hold him . Tainted money was recovered from his upper shirt pocket vide recovery memo Ex.PW11/D. Both the hands of accused were washed in the solution which was turned pink and sealed in two separate bottles. Wash of shirt pocket of accused was also taken and preserved by CBI similarly. 39 In her cross examination by Sr.PP she has fully corroborated the case of prosecution.
C C No.12/2009 22/75 23 40 PW11 Nanhe Ram has also corroborated the version given by complainant. Relevant portion of his statement, in this regard, is as under:
" From the the CBI office we had proceeded at 12 noon towards the office of accused in Patel Nagar and assembled at Metro Station. From there my sister Kamlesh had given a telelphone call from my mobile phone to accused Kapil. My sister informed accused that she had reached and standing near Metro Station and inquired from the accused where he is. Accused had told my sister that he is sitting in this office and she can come there. These conversations were recorded in my presence. After hearing the conversation CBI officers had asked my sister to go to the office of accused. They had also given a recording device to her in, on condition. My sister was directed to go to be accused with the instructions not to give the bribe amount without the specific demand of bribe by the accused. Thereafter she proceeded for the office of accused. The team members had taken position round about 1.5 noon. She remained inside the room of accused for 10/15 minutes. After coming out of the room of accused my sister flashed signal by removing her spects and thereafter CBI officials rushed in the room of accused after receiving of signal. CBI official caught hold of accused by his both hands. CBI officials had challenged the accused that he had accepted the bribe from complainant. He was inquired by the CBI Officer where the bribe money is. Accused told that he was not having money thereafter he was slapped. Accused had informed that money is in his front shirt pocket. Some officer accompanied the CBI officer had taken out the money from the front shirt pocket of accused.
Wash of both the hands were taken,colour of the wash was turned pink. Wash of front shirt pocket of accused was taken which C C No.12/2009 23/75 24 also turned pink. Wash of pant pocket was also taken as accused has put his hand in the pant pocket, that wash also turned pink. Currency notes worth Rs.2700/ were recovered from the front shirt pocket of accused.
My sister after coming out had told CBI Officer that when she entered in the room of accused he had demanded bribe money by making gesture in the presence of Mahesh who was working as Peon. My sister had told that she had taken alongwith Rs.2800/ which she had given to accused on his demand out of that amount accused had returned her Rs.100/. This was told by my sister to CBI Officer when they enquired from her that he was given Rs.2800/ tainted currency notes while the amount recovered was Rs.2700/ only. The 100/ were returned by my sister to the CBI Officer. "
41 PW12 Hans Raj in his examination in chief has also supported the version given by this witness. Relevant portion of his examination in chief in this regard, is as under:
"Thereafter CBI trap team including witnesses, complainant, her brother reached at Patel Nagar Metro Station at about 12.45 pm . After alightening from the vehicles all concerned were rebrief in respect of their roles to acted upon at the place of occurrence . Accordingly complainant and her brother shadowed by Sh Om Parkash proceeded in the office of Kapil Kumar situated at ground floor of MCD office in Patel Nagar. There was telephonic conversation between complainant and accused before proceeding towards the office of accused. Complainant was given the digital recorder in on position with the directions to proceed to the office of accused Kapil Kr. All the members including myself were alter and C C No.12/2009 24/75 25 having vigil eyes on the incident that was likely to emerge and waiting for pre appointed signal which was taking off spectacles from the face of complainant. After some time when we noticed the pre appointed signal we rushed towards the spot deeming the fact that transaction of bribe amount had been completed. On reaching at the place of occurrence i e office of Kapil Kr , one of the CBI after disclosing his identity had challenged accused for having demanded and accepted illegal gratification from complainant on which accused became perplexed ; tendered pardon by saying " Ghalti Ho Gai" and started weeping. Accused was caught hold by two CBI officers."
"Accused Kapil Kumar as accepted an amount Rs.2800/ as bribe from complainant Smt Kamlesh. In CBI Office Smt Kamlesh has further disclosed that Kapil Kumar had demanded a bribe . In CBI office, the CBI officer had communicated this fact. I can identify accused Kapil Kumar today he is present in Court. Hand wash of the accused was taken which was turned pink . Now I do not remember whether the hand wash of both the hand were taken separately or together. Rs 2800/ was recovered from the Kapil Dev which was given to us by the CBI in CBI office. No of currency notes were tallied."..........
.... " After receiving the signal flashed by Kamlesh we all rushed to the room of accused Kapil Kr. Kapil Kr was caught hold by his wrist by the CBI officer. Wash of both the hands of accused were taken separately by dipping his hands into the solution colour of which turned pink. That pink colour solution was packet in two separate bottles, the same were sealed and labelled as LHW and RHW,( Ex as P15 and P16 respectively) bears my signatures at point B and duly wrapped in cloth wrappers Ex PW14/1 and 2 which bears my signatures at point B. C C No.12/2009 25/75 26 Kamlesh narrated the sequence of events that Kapil Kr demanded the bribe money by way of gesture of hands and words and she extended the same after keeping it out from her ladies purse . Kapil Kr counted the money of Rs.2800/ with his right hand and he returned 100/ that to Kamlesh and put rest of 2700/ in the pocket of his shirt in the presence of Mahesh Peon. Om Parkash recovered 2700/ from the shirt pocket of accused Kapil Kr. And counted the same and after tallying the numbers as mentioned in handing over memo handed over the same to Amit Bhardwaj . Further Rs100/ which was given to Smt Kamlesh was also returned back to CBI Official.
Further the pocket wash of the shirt of accused was also taken after dipping the same in colorless solution which also turned pink.
The same solution was also put into a glass bottles and was labeled as LSSPW bears my signatures at point B tightly sealed and wrapped in cloth wrapper, which P14 which bears my signatures at point B . The digital recorder which was given to the complainant was handed over back to CBI official and same was played and recording was transferred in cassette. I can identify my signatures."......
42 PW14 Om Parkash in his cross examination by Ld. Sr. PP has also corroborated the version given by complainant. Relevant portion of his statement in this regard is as under: C C No.12/2009 26/75 27
"Thereafter Smt Kamlesh proceeded towards the office of accused and the trap team including myself had taken suitable position near the office of accused . I was standing about 100/150 ft away from gate of office of accused. I had seen Kamlesh Kumari entering a room on which MCD office , Ward 126, South Patel Nagar was written at about 1.25 pm. Thereafter she had came out of that room after 5 to 6 minutes and flashed the pre appointed signal . I had also noticed the signal flashed by her. After receiving the signal all the trap team members including myself. Hans Raj and Naney Ram rushed to the room of accused. In the room of accused two persons were sitting. One of them was Peon Mahesh Kr and other was accused , today present in the Court. Accused was caught hold by CBI officer however I came to know his name afterward.
CBI officer told the accused that they are from CBI and also told him that he had accepted money. I do not remember whether accused had told that he had lended the money to complainant and she had returned that borrowed money to him. While the CBI officers were holding the accused and inquiring from him whether he had accepted the money but accused has refused that he had not accepted the money at that time complainant had told that she handed over to him Rs.2700/ on his demand. Rs.100/ were return by the accused to complainant to keep with herself. It is correct that I had stated in my statement that complainant had handed over Rs.2800/ to the accused on his demand and accused after receiving Rs.2800/ returned Rs100/ to complainant. It is the correct version of the incident occurred there. Kamlesh Kumari had told that accused after counted the tainted GC notes kept the same in his shirt pocket. Complainant had also told that accused has demanded the amount by making gesture. Mahesh was also present in the room at the time when money was given by the complainant to the accused.C C No.12/2009 27/75 28
Wash of both the hands of accused was taken separately in a separate solution prepared, colour of which had turned pink. That wash was sealed in two separate empty bottle on which RHS and LHW had written. Both the bottles were sealed and my signatures were taken on the cloth wrapper as well as on the paper slip affixed on the bottle.
Rs.2700/ were recovered by the CBI officer from the pocket of accused. Now I do not remember whether I had told to CBI in my statement that I had recovered the tainted money of Rs.2700/ from the pocket of accused on the directions of Amit Bhardwaj Confronted with portion D to D1 in Ex PW14/PA where it is so recorded.
I had tallied the number of recovered currency of Rs.2700/ notes with the handing over memo which were correctly tallied. Rs. 100/ currency note was handed over by the complainant to Amit Bhardwaj . Number of this note was also tallied with the handing over memo and found to be correct.
Wash of the shirt pocket of accused was also taken by dipping the same in colorless solution of sodium carbonate which turned pink. That wash was also sealed in a separate bottle and kept with the cloth wrapper and sealed and I had signed on the label pasted on the bottle and on cloth wrapper.
Witness after seeing all the three wash bottles, identified his signatures on paper slip pasted on all the three bottles at point B. .... " The digital recorder was played and matter was transferred in two cassettes and one cassette Q1 was labelled already exhibited as P11 which contains my signatures at point B on cassette inlay card and cloth wrapper in which the same was sealed , the same contains my signatures at point B. Thereafter personal search cum arrest memo Ex PW14/5 on which I can identify my signatures at point A . The same was read by me before C C No.12/2009 28/75 29 putting my signatures. Rough site plan Ex PW14/6 was prepared on which I put my signatures on point A. I can also identify recovery memo the same was prepared in my presence which is already exhibited as PW11/D and it bears my signatures on each page at point C. I can also identify my signatures on voice specimen memo dt 10.11.08 at point A, the same is Ex PW14/7. It was prepared when Sh Kapil Kumar voluntarily gave his specimen voice for comparison purposes the same was preserved in cassette marked as S, already exhibited as P13 , which contains my signatures at point B on cassette inlay card and cloth wrapper already exhibited as P14 bears my signatures at point B . I can also identify my signatures on transcription cum voice identification memo already exhibited as PW 10/C at point C. At this stage Ld SPP made a request that cassette marked S1 Ex P13contianing specimen voice of this witness may be allowed to played to this witness to identify his voice. Request allowed. Cassette S1 Ex P13 has been produced by Asst Malkhana Narender in unsealed condition. Cassette is played after hearing his sample voice witness identify the same and tallied with the transcription subscribed on the top at W1 to W1 on Ex PW10/D. The transcription bears my signatures at point C on each page .
At this stage Ld SPP made a request that cassette marked S1 Ex P13contianing specimen voice of this witness may be allowed to played to this witness to identify his voice. Request allowed. Cassette S1 Ex P13 has been produced by Asst Malkhana Narender in unsealed condition. Ca settee is played after hearing his sample voice witness identify the same and tallied with the transcription subscribed on the top at W1 to W1 on Ex PW10/D. The transcription bears my signatures at point C on each page ."....
43 PW17 Inspector AV Bhardwaj, TLO of this case has C C No.12/2009 29/75 30 also fully corroborated the case of prosecution with regard to complaint verification conducted on 6.11.2008 and pre trap proceedings and post trap proceedings conducted on 7.11.2008. He has also deposed that shadow witness was not sent alongwith the complainant because she had requested that if witness will be sent alongwith her Kapil Kumar will get suspicious and might not talk to her regarding demand of bribe, hence it was decided not to sent shadow witness alongwith the complainant. He has also deposed that recorded conversation between complainant and accused primafacie established demand of bribe by the accused. Relevant portion of his statement in this regard is as under:
" The distinctive numbers of the said GC notes were noted in the handing over memo already exhibited as PW11/A which bears my signatures at point D on each page. The said treated notes were kept in the small pocket purse of the complainant with the direction to hand over the same on demand of bribe by Kapil Kumar. She was also directed to give the pre appointed signal on completion of transaction of bribe by removing her spectacles. A digital recorder was also arranged to record the possible conversation between the complainant and accused Kapil Kumar. The practical demonstration to the working of the said instrument was given to all present. It was decided to handover the said recorder to the complainant at the spot. On her request that Kapil Kumar will get suspicious on seeing any third person with her, it was decided not to send the shadow witness alongwith her. The witnesses were directed to try C C No.12/2009 30/75 31 to see and if possible hear the conversation. An investigation kit was arranged which includes FIR, complaint, glass bottles, tumblers, sealing material etc. All the team members were searched mutually and no body was allowed to keep anything incriminating except the official Icards. All these proceedings of pretrap were in detail recorded in the handing over memo. The complainant, Nanhe Ram, the independent witnesses, the CBI team, all signed on the said memo.
Thereafter, the CBI team reached the spot i.e. Patel Nagar Metro Station, which is near to the MCD, CSE, Patel Nagar office in official vehicle and in the vehicle of the complainant at about 12.50 pm. The vehicles were parked at safer distance, the complainant was again reminded of the preappointed signal and she was given the digital recorder in the on position to record the possible conversation between her and Kapil Kumar. The witnesses were also briefed to see and hear, if possible the transaction of bribe and the conversation between the accused and the complainant. The said digital recorder was kept under the kurta of complainant by L/Ct.Champa. As directed, the complainant proceeded towards the office of the accused Kapil Kumar and the witnesses, CBI team members positioned themselves in a discrete manner around the said office."....
"Before the complainant was directed to proceed the office of the accused Kapil Kumar complainant was asked to call the accused on his mobile in order to confirm the presence of accused. The conversation was recorded. Thereafter the digital recorder in on position was handed over to the complainant. The said digital recorder on direction was kept inside the kurta of complainant by lady constable Champa. Then at about 1.25 PM she entered the office of accused. Then after 2025 minutes she passed the pre appointed signal which is removing her spectacles. On receiving the C C No.12/2009 31/75 32 signal trap team rushed towards the office of accused and on entering the same it was found that two persons were sitting in the said office. The complainant identified the accused, the right and left hand of accused was caught hold by SI Vivek and Gaurav. The identities of trap team members and witnesses were disclosed to the accused and he was asked whether he had demanded and accepted the bribe of Rs.2,800/ from the complainant Smt. Kamlesh. Accused stated that it was the loan amount which he was asking from the complainant. The complainant on being asked narrated the sequence of events wherein he stated that by words and gestures of hands accused Kapil Kumar demanded the bribe amount of Rs.2,800/ from her which she gave to him after taking out from her purse. She further stated that on extending the demanded amount accused accepted the same with his right hand and after counting the same with both his hands, kept in his left shirt pocket. Complainant also stated that accused after counting the said amount gave her Rs.100/ out of the said Rs. 2,800/. The other person who was found sitting with the accused was identified as peon Mahesh working in the said office. Thereafter the witness was asked to recover the tainted amount from the said left shirt pocket of accused. Witness after recovering the same counted. On counting the recovered amount found to be Rs.2,700/. Rs.100/ was further taken from the complainant.
The washes of both the hands and the shirt pocket wash were separately taken and the pink solution was marked as LSW, RHW and LSSPW. The solutions were kept in the glass bottles and were sealed with CBI seal using cloth wrapper. The witnesses signed on the paper label pasted on the bottles. The recovered amount was also seized. The recording on the digital recorder was transferred C C No.12/2009 32/75 33 into the normal audio cassette marked as Q1 and copy of the same was prepared for investigation purpose. Before transferring the said recording was played which confirms the demand and acceptance of bribe amount by accused. Accused was arrested.
The office search and the scooter search of accused was taken vide separate memos. The rough site plan was also prepared showing the positions of complainant, accused and trap team members and witnesses. The detail memo i.e. recovery memo was prepared on the spot. It was signed by all present. Witness after seeing the material confirmed that Ex PW13/E15, Ex PW13/E16 & Ex PW13/E17 are the same bottles in which left hand wash, right hand wash and left side shirt pocket wash respectively were kept which had turned pink in my presence and the same were duly sealed and signed by witnesses. Witness has also identified the shirt Ex PW14/O from which bribe amount was recovered in my presence and pocket wash was taken. Witness has also identified his signatures at point E on all the seven sheets of recovery memo (D5) already Ex PW11/D which was read over and explained to all concerned, thereafter they had signed on each page in my presence after understanding the meaning of the same. I identify my signatures at point Z on Ex PW10/A, Ex PW14/5, Ex PW14/6, Ex PW14/7. I can identify recovered GC notes if shown to me (GC notes have not been produced from Malkhana, however the same have already been exhibited). Accused is present in court. (Witness has correctly identified the accused). Thereafter further investigation of the case was transferred to SI Anil Bisht after obtaining permission from the court and under order from the then branch SP."
44 The law is that even if the complainant and independent witness have turned hostile, conviction can be C C No.12/2009 33/75 34 made on the solitary statement of the trap officer without corroboration if it inspire confidence. Reference is placed on case on Hazari Lal Vs 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 the 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 neighboring room. He deposed that accused neither demanded the amount from accepted the amount. The panch witness who went along with the C C No.12/2009 34/75 35 complainant could not be examined as he became insane and other panch witness turned hostile. The conviction was based on the statement of the 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 not rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence , which requires that the evidence of such officer 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 accept the evidence of such an officer."
45 The Hon'ble Supreme Court in case of State of UP Vs Zakaullah AIR 1998 SC 1474 held " that the evidence of trap officer can be relied upon even without corroboration if it inspire confidence."
46 Testimony of a police officer cannot be rejected merely they happened to be police officer as observed by Hon'ble Supreme Court in Tahir Vs. State, (1996) 3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the C C No.12/2009 35/75 36 police force. It was observed in Aner Raja Khima Vs. The state of Saurashtra, AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof."
PHENOLPHTHALEIN TEST 47 As discussed above accused after receiving the tainted money from the complainant counted the same by his both the hands and kept it in his upper left side shirt pocket. It is also proved that hand wash of both the hands of accused was taken which had turned pink. Wash of left side shirt pocket of accused was also taken which was also turned pink. All the washes were preserved and sealed in the bottles on the spot and sent to the CFSL for the chemical examination. PW13 Sh. V B Ramtek Sr. Scientific Officer, CFSL has chemically analysed all the washes and opined in his report that all the washes gave positive test for the presence of Phenolphthalein. He has proved his report dt. 28.1.2009 Ex.PW 13/A. Relevant portion of his statement is as under: C C No.12/2009 36/75 37
" Vide letter No. DAI2008A0044/DLI/2646 dt. 28.11.2008 of Superintendent of Police, SPE/CBI/ACB/New Delhi my office has received three sealed bottles on 28.11.2008. Three sealed bottles sealed with the seal impression 23/2007/CBI/ACB/ND. The seals were intact and tallied with the specimen seal impression forwarded. The sealed bottles were marked as Ex RHW, Ex LHW and Ex LSSPW for the purpose of examination on the part of CFSL. The contents of exhibits bottles were analysed by chemical test and thin layer chromatographic technique. All the three exhibits gave positive test for the presence of phenolphthalein. Above said three bottles were resealed with my official seal and put my signature at points A on Ex. LHW, Ex RHW & Ex.LSSPW . These material exhibits are exhibited as Ex PW13/P15, Ex PW13/P16 and Ex PW13/ P17. Thereafter, report dt. 28.1.2009 signed by me at point A on both the side of the sheet was prepared after affixing my official seal at point B. The same is Ex PW13/A The report alongwith exhibits were sent to SP/CBI, New Delhi."
48 Ld. Defence Counsel argued that bottles were empty when produced in this court during the examination of witnesses. It is correct that bottles were empty when produced in the court, however, no adverse inferences can be drawn on this ground against the prosecution because the solution was used by the chemical analyst for chemical analysis, hence the bottles were empty when produced in the court. PW13 Sh.V B Ramtek has specifically deposed that he had analysed the contents of all the bottles which C C No.12/2009 37/75 38 proves that bottles were containing hand wash when opened by PW13 This witness has been cross examined on behalf of accused in detail. His entire cross examination is as under:
"Exhibits were not received by me personally. I am not aware who had received the exhibits in the office. I had only received letter dated 28.11.2008 alongwith exhibits and nothing else. I examined the exhibits between 22.01.2009 to 28.01.2009. It is correct that in my report Ex.13/A it is not mentioned that the examination on the exhibits was carried out between 22.01.2009 to 28.01.2009. It is also not mentioned therein which exhibits examined on that date. In our examination we don't check the percentage of phenolphthalein. it is incorrect to suggest that I did not carry out the examination of exhibits personally and there was no positive test for the presence of phenolphthalein or that I submitted a wrong report at the instance of CBI officials."
49 From the above cross examination it is clear that not given even a single suggestion has been given to this witness that bottles were empty when the same were produced before him. 50 The importance of phenolphthalein test was underline by the Hon'ble Supreme Court in Som Parkash Vs State of Delhi AIR 1974 Supreme Court 989, where in para 10 it is held as under:
" ............... of course, the oral evidence of PWs 1and 4 by itself, if believed as rightly believed by the High Court , proves C C No.12/2009 38/75 39 the passing of the money to the accused and its production by him when challenged by P.W 7 . The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the State counsel argues that on no hypothesis except that the notes emerged from the accused's Pocket or possession can the triple colour change be accounted for . The evidence furnished by inorganic chemistry often outwits the technology of corrupt officials, provided no alternative reasonable possibility is made out. The appellant offers a plausible theory. PW 1 kept the notes with him and his hands thus carried the powder. He gave a bottle of cake to the accused and the bottle thus transmitted particles of phenolphthalein to the latter's hands. He ( the accused ) wiped his face with the handkerchief and put it into his trouser pocket thus contaminating the lining with the guilty substance. Moreover, the inner lining was dipped by PW 7 with his hands which had the powder . Thus, all the three items stand explained, according to him. These recondite possibilities and likely freaks have been rejected by both the courts and we are hardly persuaded into hostility to that finding. It is put meet that science oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency then swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt."
51 In Raghbir Singh Vs State of Punjab (1976) 1 SCC 145 while discarding the oral and documentary evidence laid on C C No.12/2009 39/75 40 behalf of the prosecution is not such as to inspire confidence in the mind of the Court, the Supreme Court observed in para No.11 as follows: " We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked current notes, which are used for tte purpose of trap, are treated with phenolphthalein power so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is something of a dubious character for the purpose of deciding the fate of the public servant." 52 In para no.11 of this authority it is further held as follows, by Hon'ble Supreme Court:
"Even if the statutory presumption under Section 4 is unavailable when the charge is under Section 5 (1) (d) read with section 5 (2) Courts may presume what may in the ordinary course be the most probable inference. That an Assistant Station Master had in his hand a marked currency note made over to him by a passenger whose bedding had been detained by him for which no credible explanation was forthcoming, and he was caught redhanded with the note is a case of res ipsa loquitur. The very thing speaks for itself in the circumstances."
53 From the above discussion demand of bribe money, its acceptance and recovery of the same from the conscious possession of accused is also proved on the judicial file. C C No.12/2009 40/75 41 CONDUCT OF ACCUSED AT THE TIME OF TRAP.
54 PW 12 Hans Raj has deposed that when accused was challenged that he had accepted illegal gratification he became perplexed and tendered pardon by saying Galti Ho gai and started weeping. Relevant portion of his statement, in this regard, is as under:
" One of the CBI officer after disclosing his identity had challenged the accused for having demanded and accepted illegal gratification from complainant on which accused became perplexed; tendered pardon by saying 'galti ho gai and started weeping' ."
55 Not even a single suggestion has been given to this witness in his cross examination on behalf of accused. No cross examination on a substantive point amounts to the admission of the same.
56 In a prosecution for the offence of bribery the conduct of accused is relevant U/S 8 of Evidence Act. When accused was challenged regarding acceptance of bribe amount he started weeping and tendered pardon.
57 Hon'ble Supreme Court in Parkash Chand Vs Delhi C C No.12/2009 41/75 42 Admn AIR 1979 SC 400 in para No.8 has observed as follows:
" It was contended by the ld. Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by section 162 Criminal Procedure Code. He relied on a decision of the Andhra Pradesh Hingh Court in D.V. Narisimhan V.State,(AIR 1969 andh Pra 271). We do not agree with the submissions of Sh. Anthony. There is a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by sec. 162 Criminal Procedure code. What is excluded by sec. 162 Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person ( not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstances, simpliciter,that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence where found hidden, would be admissible as conduct, u/s 8 of the evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act(vide Himachal Pradesh Administration Vs. Om Prakash AIR 1972 SC 975.
58 The above discussion also corroborates the prosecution version that accused Kapil Kumar had voluntarily and consciously acceptedRs.2,800/ as bribe which was also recovered from his C C No.12/2009 42/75 43 possession.
PRESUMPTION U/S 20 OF P C ACT, 1988 59 When it is proved that there was voluntary and conscious acceptance of the money by the accused, there is no further burden cast on the prosecution to prove by direct evidence the demand or motive, in view of Section 20 of PC Act, 1988. It has been held so by our Hon'ble Supreme Court in B. Noha Vs. state of Kerala, 2006 IV AD 465.
60 Our Hon'ble Supreme Court in State of Andhra Pradesh Vs. R Jeevaratnam, 2004 (2) JCC 1161 has held as follows in this regard:
"Prevention of Corruption Act, 1988 - Sec. 20 (1) Presumption under - Respondent caught redhanded with the marked money in a briefcase carried by him - Presumption that he accepted illegal gratification arose".
61 Our Hon'ble Supreme Court in Madhukar Bhaskarrao Josi Vs. State of Maharashtra (2000 (8) SCC 571) has held as follows in this regard:
"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 C C No.12/2009 43/75 44 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 premises 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 received it".
62 This decision was followed by Hon'ble Supreme Court in M. Narsinga Rao Vs. State of A.P. (2001 (1) SCCC 691). wherein it has been held that " There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW1. It was held in the decision in State of A P Vs. Kommaraju Gopala Krishna Murthy (2000 (9) SCC 752), that when amount is found to have been 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."
63 Accused has not given any explanation as to how the C C No.12/2009 44/75 45 tainted GC notes reached in his hands/shirt pocket. He has not led any evidence in his defence to rebut the presumption U/s 20 of P C Act.
TAPE RECORDED CONVERSATION BETWEEN ACCUSED AND COMPLAINANT.
64 PW4 M N Vijayan Nodal Officer, Tata Telly Service has deposed that mobile phone No.9212218112 has been allotted to Kapil Kumar. He has also produced the I D Proof of Kapil Kumar submitted alongwith the application. He has proved the call details of mobile phone No.9212218112 Ex PW4/A. PW9 R K Singh, Nodal Officer, Bharti Airtel Ltd. has proved call details of mobile phone No.9971831506 w.e.f. 5.11.08 to 8.11.08 which was used by the complainant for talking with the accused. 65 Prosecution has also proved transcription of tape recorded conversation between complainant and accused dt 6.11.2008 Ex.PW 6/C recorded during the complaint verification and of the spot dt. 7.11.2008 Ex.PW 10/D. A reading of both these transcriptions also corroborates the demand of illegal gratification made by accused from the complainant.
C C No.12/2009 45/75 46 66 PW15 Sh. Deepak Tanwar Sr. Scientific Officer CFSL has compared the questioned voice of accused with his sample voice recorded in cassette Q1 and Q1 (A) in both these conversations and confirmed that questioned voice of accused tallied with his specimen voice. In this regard, he has proved his report Ex PW1/A. 67 From the above discussion demand of bribe money by accused, its acceptance and recovery of the same from the conscious possession of accused is proved on the judicial file. LEGAL AND FACTUAL ANALYSIS OF DEFENCE ARGUMENTS 68 Ld. Defence Counsel argued that prosecution has not proved the taking of sample voice of accused, neither IO nor TLO has deposed that either of them had taken the sample voice of accused. In these circumstances report of PW15 Ex PW15/A with regard to comparison of questioned voice of accused in recorded conversation with the alleged specimen voice is of no use. Specimen voice of accused was taken on 10.11.2008 vide memo Ex PW14/7. It has been proved by PW14 in his examination in chief recorded on 22.2.2011. Relevant portion of his statement in this regard, is as under:
C C No.12/2009 46/75 47
"I can also identify my signatures on voice specimen memo dt 10.11.08 at point A, the same is Ex PW14/7. It was prepared when Sh Kapil Kumar voluntarily gave his specimen voice for comparison purposes the same was preserved in cassette marked as S, already exhibited as P13 , which contains my signatures at point B on cassette inlay card and cloth wrapper already exhibited as P14 bears my signatures at point B . I can also identify my signatures on transcription cum voice identification memo already exhibited as PW 10/C at point C."
69 In view of above discussion there is no merit in the argument of Ld. Defence Counsel that recording of specimen voice of accused has not been proved.
70 Ld. Defence Counsel argued that PW7 Mahesh Kumar who was present in the office of accused alongwith him at the time of trap and the bribe amount was allegedly given to accused by the complainant in his presence, has not supported the case of prosecution at all. It is correct that PW7 Mahesh Kumar has not supported the case of prosecution at all. It is also correct that according to the prosecution transaction of bribe was completed in his presence. I have carefully gone through his statement. From his deposition in the court it is clear that he was/is working as a peon in MCD. It has also appeared in his evidence that he is still working under Kapil Kumar and marking his attendance with Kapil Kumar. C C No.12/2009 47/75 48 Even he, in his statement, has confirmed the fact of presence in the office of accused and exchange of money at the relevant time. Relevant portion of his statement is as under:
"On 7.11.2008 I was present and working in my office. On that day I was sitting in office chamber of Kapil Kumar. At about 1.15 PM to 1.30 PM Smt. Kamlesh, a substitute Safai Karamchari came in the chamber of Kapil Kumar and both were talking. I asked for water from Smt. Kamlesh. She refused to take water. I was engaged in bringing out some file from almirah which was standing beside the chair of Kapil Kumar. I heard complainant Kamlesh Kumari Saying "Lo Babuji"......."
71 In his cross examination by Ld. Sr. PP this witness has further deposed as follows:
"My pay bill are signed by ASI Kapil Kumar and SI R K Yadav. Salary is paid to me from MCD. I used to mark my attendance with the Kapil Kumar in attednance register. At the time of this incident no other ASI was sitting there. I had gone to take out outer sheet from the almirah at the instance of Kapil Kumar and the outer sheet was given to Kapil Kumar by me after taking out from Almirah."
72 From the above discussion it is well established that he was/is under the control of accused. In these circumstances there are all chances of his turning hostile, however prosecution has corroborated this fact from other evidence as discussed above. C C No.12/2009 48/75 49 73 It is argued by Ld. Defence Counsel that accused has been falsely implicated in this case. Independent witness Manoj Kumar Nonia, who had joined the raiding party during the complaint verification conducted on 6.11.2008, was working as a clerk in the bank. Independent witness Hans Raj was working as UDC in DDA, independent witness Om Prakash was also working a s LDC in Vikas Sadan DDA.
74 Hans Raj and Om Prakash have partly supported the case of prosecution and nothing such has come out in their cross examination conducted by Ld Defence counsel that they were under the pressure of CBI or have any enmity or motive to falsely depose against accused . They were directed by their senior officers to join the investigation of CBI in this case, hence they cannot be termed as witness of the choice of CBI. They were neither knowing the complainant nor the accused prior to this case. They have no affinity with the complainant and no enmity with the accused. In these circumstances, no motive can be imputed to them to depose falsely against accused.
75 According to accused he has been falsely implicated in this case by CBI at the instance of complainant . CBI is the Prime C C No.12/2009 49/75 50 Investigating Agency of this country. Kamlesh, complainant in this case is a poor illiterate lady who is working as substitute Safai Karamchari, how can she be in the position to influence the CBI. In any manner she is not such a personality so as to influence a prime investigating agency like CBI. There is no reason to believe that CBI would falsely implicate the accused at the instance of complainant.
76 TLO Inspector A V Bhardwaj is a public servants unknown to accused and complainant, there is no reason why he will depose falsely against accused. He was not alone in the trap team. There were many other CBI officers in the trap team who were also public servant. All the CBI officers were unknown to complainant. There is no reason why the TLO and other trap team members who were also public servants will falsely implicate a public servant in this case. No enmity/ ill will has been alleged against the TLO even by accused, therefore he was having no motive to falsely implicate the accused in this case. In these circumstances the argument that accused was falsely implicated, at the instance of complainant does not appeal even to common sense.
C C No.12/2009 50/75 51 77 During arguments Ld. defence Counsel has tried to impress upon the court that non joining of shadow witness to accompany the complainant to the office of accused at the time of transaction reflect adversely on the procedure claimed to have been adopted by the TLO. TLO has deposed that on the request of complainant that accused will got suspicious and might not talk to her regarding demand of bribe, it was decided not to send the shadow witness alongwith her. Normally procedure signify value based priorities exercised in official course of dealings with regard to launching system in discharge of official duties. However, in the process of implementing procedure circumstantial priorities are adhered to, keeping in view the responsibilities, assigned job impartially. Hence, a bit deviation in implementing procedure, as raised by defence by citing the reference of PW10, PW11, PW12 & PW17, do not give support to accused.
78 Ld. Defence Counsel also thrashed on timings of incident connecting with the evidence of PW10, the complainant and PW17 TLO of the case. He also pointed out the contradictions in documents tallying with the deposition of complainant, TLO and other witnesses. Expecting perfection from common parallance with regard to documentation is always considered under the C C No.12/2009 51/75 52 umbrella of flexibility which may not respond appropriately because of linguistic ignorance. On the other hand, other PWs like TLO, IO and independent witnesses have categorically explained even minor details being corroborated by complainant on all material points including the proceeding of preraid and post raid. 79 In this case, complainant is an illiterate, rustic woman working as a Safai Karamchari. While analysing the evidence of witness the stature of his or her capability to understand the question is required to be considered. Normally people of ordinary prudence do not keep eye on the watch at the time of accomplishing the assignment, moreover defence has not put the question with regard to wearing watch by the witnesses during his cross examination. An ounce of loyalty to the fact is worth than one pound of cleverness with reference to keeping eye on watch for declaring correct time; as ability is important but dependability is crucial. As such oral testimony of PW10, the complainant as a whole supported the prosecution story.
80 Hon'ble Supreme Court with regard to contradictions appearing in the evidence of illiterate rustic woman in Boya Ganganna Vs. State of Andhra Pradesh, AIR 1976 SC 1541, in para No.6, has held as follows:
C C No.12/2009 52/75 53
"Minor contradictions are bound to appear when ignorant and illiterate woman are giving evidence. even in case of trained and educated persons, memory sometimes plays false and this would be much more so in case of ignorant and rustic women. it must also be remembered that the evidence given by a witness would very much depend upon his power of observation and it is possible ;;that some aspects of all incident may be observed by one witness while they may not be witnessed by another though both are present at the scene of offence."
81 Delhi High Court in the case of Jai Pal Singh Vs. State, 1996 Cr.LJ 4097 has held as follows:
"We are very sorry we are unable to agree with the contention of the Learned Counsel. Human memory is very short and fleeting. Everything sinks into oblivion with the passage of time. Every event as soon as it has happened starts fading in the memory. Present impinges on the past. Days, dates and events run into one another with the result that recall becomes difficult. We feel the minor contradictions as pointed out above go a long way to show that the statements of the prosecution witnesses are natural, spontaneous and not crammed and have been made with the help of the memory. Admittedly, the occurrence in the instant case took place on March, 6, 1990. The statement of the prosecution witnesses were recorded towards the close of the year 1991 i.e. in August, November, 1991. Thus, there is nothing strange if some minor contradictions have crept in their statements."
82 The law regarding contradiction was considered by the Hon'ble Supreme Court in case of Bharuda Broginbhai Harjibhai V/S State of Gujrat AIR 1983 SC 753 where in it was held that C C No.12/2009 53/75 54 discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for arriving of this conclusion:
i) " By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.\
ii) Ordinarily, it is so happen that a witness is over taken by events the witness could not have anticipated the occurrence which so often has an element of surprise.
Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.
iii) The powers of observance differ from person to person, but one may noticed another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.
iv)By and large people cannot accurately recall a conversation and reproduced the very words used by C C No.12/2009 54/75 55 them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
v) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimate by guess work as spare of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimate in such matter. Again it depends upon the time sense of individuals which varies from person to person.
vi) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession of in a short time span. A witness is liable to get confuse or mixed up when interrogated later on.
vii) A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and out of nervousness mixed up facts, get confused regarding sequence of events., or fill up details of imagination at the spur of moment. The sub conscious mind of the C C No.12/2009 55/75 56 witness sometime so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and an honest account of the occurrence witnessed by him perhaps it is a sort of physiological movement".
83 In view of the law discussed above it cannot be said that the contradiction pointed out by Ld. Counsel for accused are very vital contradictions. These are contradiction which are likely to occur with the passage of time. The Hon'ble Supreme Court in case State of UP V/S M.K. Anthony, AIR 1985 SC 48 has laid down the principle for appreciating the evidence of a witness as under:
" While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor C C No.12/2009 56/75 57 of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole."
" Their Lordships further observed:
" Unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations of infirmities in the manner of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross examination is an unequal dual between the rustic and refined lawyer."
84 PWs 10,11,12,14 & 17 have proved recovery of bribe C C No.12/2009 57/75 58 amount from accused. In the case of M Sunderswami Vs. State of Tamil Nadu AIR 1990 SC 1269 has held as follows:
"The appellant is guilt of offfence U/s 13 (1) (d) and (2) as recovery of currency notes from the appellants proves the guilty conduct of the accused in view of presumption arising u/s 20 which has not been rebutted."
85 In the case of B Hanumant Rao Vs. State of Andhra Pradesh AIR 1992 SC 1201 Hon'ble Supreme Court has held, "Once the amount is found in the possession of accused, the burden shifts on him to explain the circumstances to prove his innocence as contemplated u/s 20 of P C Act."
86 In the case in hand accused has not rebutted the situation of presumption arisen u/s 20 of P C Act. 87 In this case defence could not prove any such evidence which may disprove the version of "shall be presumed". However, defence has also pointed out the deposition of PW6, 7 and 10 and tried to put forth that demand of bribe has not been properly substantiated by prosecution. In this regard it is submitted that tape recorded version, duly proved in the court and transcription prepared to this effect has very categorically proved the demand of bribe raised by the accused. In the case of Mubarak Ali Vs. State, C C No.12/2009 58/75 59 AIR 1958 MP157 it is held that "a mere demand of solicitation or solicitation by a public person amounts to the commission of offence.
88 In the case of Madhukar Bhaskar Vs. State of Maharashtra, AIR 2001 SC 147 Hon'ble Supreme Court has held that "once the premise is established, the inference to be drawn is that the said gratification was accepted as a motive or reward for doing or forbearing to do any official act."
89 Ld. Defence Counsel referring the following portion of cross examination of PW12 argued that he has demolished the entire case of prosecution:
"I had signed all the documents in the CBI Office. Om Parkash had also signed the documents in CBI office. We had reached in CBI Office about 6 PM. Documents were hand written. It had taken about 1/1 ½ hours in CBI office. After 7.11.2008 no interrogation was made from me. I was called once again after 7.11.2008 to sign some documents. I do not remember the exact date but I was called after about a week of 7.11.2008. I do not know what document I had signed at that time. All the bottles were prepared in CBI Office. Bottles were sealed by CBI office, however, I do not remember the particulars of seal now. I had not told in my statement about the particulars of seal affixed on the bottles. After using the seal concerned CBI Officer had kept that seal in his bag. It is wrong to suggest that I had not gone to spot or that no recovery was C C No.12/2009 59/75 60 effected in my presence."
90 This witness in his examination in chief recorded on 22.2.2011 has fully supported the case of prosecution and deposed that all the proceedings were conducted on the spot and he has signed all the memos and wash bottles on the spot, as quoted in the foregoing pages of this judgment, however in his cross examination on 5.72011 he has taken a U turn, that all the documents and wash bottles were prepared in the office of CBI and signed by him there, as quoted above.
91 In such circumstances Hon'ble High Court of Allahabad in Radha Mohan Singh and others Vs. State 2005 Crl. L. J. 167 has held as follows:
"Evidence Act (1 of 1872), S. 154 - Evidence of hostile witness - Credibilt, of Witness giving each and every detail of occurrence in his examination in chief as well as in cross examination of first day - However, in his cross examination on next day, he stated that due to darkness he could not recognise assailant - Perusal of the entire evidence of witness showing that on next day, he was made to say something in favour of assailants, as he was won over - Entire testimony of witness cannot be discarded on that ground."
92 In Ch. Ravindra Babu Vs. State of A P., 2009 Crl. L. J. 4620 Hon'ble High Court of Andhra Pradesh has held as follows: C C No.12/2009 60/75 61
"Criminal P C (2 of 1974), S.311 - Examination of witness - Witnesses in chief examination stating petitioner had driven vehicle but they have subsequently denied same in crossexamination - It shows that they were subsequently won over by accused - There is no need to reject Chief Examination part merely because turned hostile subsequently."
93 In the matter of Khuji @ Surendra Tiwari Vs. State of M.P. AIR 1991 SC 1853 It is further observed in paragraph No. 7 of these authorities are as follows: (F) Penal Code (1860), S. 300 MurdeEye witness Appreciation of evidencewitness residing in locality near place of occurrence sufficiently illuminatedWitness identifying all accused in his examinationinchiefContradictory statement in cross examination Held evidence of witness was reliable as regards time, place manner of incident and identity of accusedStatement made in crossexamination was an attempt to wriggle out.
In this regard, paragraph No. 7 is observed is as follows: That brings us to the evidence of PW 1 Komal Chand. Komal Chand's evidence was not accepted by the Trial Court on the ground that he was not a natural witness and was only a chance witness. PW 1 explained his presence by stating that he had gone to the market to purchase vegetables and while he was returning therefrom on foot with his cycle in hand he heard a commotion and saw the incident from a short distance. Being a resident of Suji Mohalla, the place of occurrence was clearly in the vicinity thereof and, therefore, his presence at the market place could not be considered to be C C No.12/2009 61/75 62 unnatural. It is not unnatural for working people to purchase vegetable a that hour and, therefore, his explanation regarding his presence cannot be ruled out as false The sketch map prepared by PW 11 Gaiser Prasad shows that he had seen the incident from a short distance of hardly 22 feet although PW 1 says he saw it from the square. Since the incident occurred at a public place with a lamppost nearby, the possibility of his having identified the assailants could not be ruled out. The examinationinchief of this witness was recorded on November 16, 1976 when he identified all the assailants by name. He stated that he knew the six accused persons in Court and they were the persons who had surrounded the rickshaw and launched an assault on PW4 and the deceased Gulab. Of them Gopal struck PW 4 with a chain. He also stated that the appellant Khujji and his companions Gudda and Parsu were armed with knives and when Khujji tried to assault PW 4 with a knife, Gopal shouted ''Khujji that man is not Gulab''. Thereupon Khujji and his companions ran after the Gulab, overtook him and the appellant, Parsu and Gudda assaulted Gulabe with their weapons. Gudda struck Gulab from the front on his chest, Parsu stabbed him on the side of the stomach while Ram Kishan and Gopal held him and the appellant attacked him from behind with a knife whereupon Gulab staggered shouting 'savesave' and fell in front of the house of Advocate Chintaman Sahu. Thereafter all the six persons ran away. His cross th examination commenced on 15 December, 1978. In his cross examination he stated that the appellant Khujji and Gudda had their backs towards him and hence he could identify the remaining four persons.
C C No.12/2009 62/75 63 94 In view of above cited authorities there is no merit in this argument of Ld. Defence Counsel .
95 Ld. Defence Counsel argued that complainant and PW14 Om Prakash were declared hostile on the request of prosecution. In their cross examination by the Ld. Prosecutor they have supported the case of prosecution which cannot be relied upon. 96 Now it is well settled legal preposition evidence of hostile witness cannot be rejected in toto. Such evidence of hostile witness which is corroborated by other evidence or documents or circumstances of the case or considered reliable and trustworthy by the court can be taken in consideration against the accused. In this regard in Lella Srinivasa Rao Vs. State of AP, AIR 2004 S C1720 Hon'ble Supreme Court has held as follows:
" Hostile witness - Evidence of - Fact that witnesses were declared hostile by prosecution - Does not result in automatic rejection of their evidence - Even Evidence of hostile witness if it finds corroboration from facts of case may be taken into account while judging guilt of accused."
97 In Bhagwan Singh Vs. The State of Haryana, AIR 1976 S C202 Hon'ble Supreme Court has held as follows:
" Where the Court gives permission to the prosecutor to cross examine his own witness, thus characterising him as a hostile C C No.12/2009 63/75 64 witness, that fact does not completely efface his evidence. The evidence remaiins admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence."
98 In Guru Singh Vs. State of Rajasthan, AIR 2001 S C330 (1) Hon'ble Supreme Court has held as follows:
" It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. In a criminal trial where a prosecution witness is cross examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of the fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be credit worthy."
99 In Syad Akbar Vs. State of Karnataka, AIR 1979 S C1842 Hon'ble Supreme Court has held as follows:
" Evidence Act (1 of 1872) S.3, S.154 - Appreciation of evidence - Witness declared hostile - No ground by itself to reject his testimony in toto - His testimony not shaken on material points in cross examination Cannot be brushed aside."
100 The version given by complainant and PW4in their cross examination by Ld. Prosecutor is duly corroborated by PW11 Nanhe Ram, PW12 Hans Raj and PW17 A V Bhardwaj and the C C No.12/2009 64/75 65 documents proved by the prosecution alongwith the circumstances of this case, hence the same can be relied upon. There is no merit in this argument of Ld. Defence Counsel.
101 Our Hon'ble Supreme Court in Krishna Mochi & Ors vs State of Bihar (2002) 6 Supreme Court Cases 81 has held as follows:
"It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to deposed against an accused because of threats to their life, more so when the offenders are habitual criminals or high ups in the Government or to close to powers, which may be political, economic or other powers including muscle power.
Thus, in a criminal trial a Prosecutor is faced with so many odds. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent time the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if C C No.12/2009 65/75 66 the same are boulders, the court should not make an attempt to jump over the same. These days when when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim " Let hundred guilty persons be acquitted, but not a single innocent be convicted " is, in practice, changing the world over and Courts have been compelled to accept that " society suffers by wrong convictions and is equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time."
102 Hon'ble Supreme Court in Inder Singh Vs State ( Delhi Administration) AIR 1978 Supreme Court 1091 has held as follows:
"Credibility of testimony, oral circumstantial depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect, If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of foolproof concoction. Why fake up? Because the Court asks for manufacture to make truth look true? No, we must be realistic."C C No.12/2009 66/75 67
103 Hon'ble Supreme Court in State of U.P Vs Anil Singh has observed as follows:
"It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also preside to see that a guilty man does not escape. One is as important as the other. But are public duties which the judge has to perform.
104 In the case of State of W.B. Vs Orilal Jaswal it was held that justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice, according to law . In the case of Mohan Singh Vs State of M.P it was held that Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remain, the criminals are clothed with the protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave C C No.12/2009 67/75 68 the case the moment suspicious are created. It is the onerous duty of the Court, within permissible limit to find out the truth . It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should be get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. 105 Complainant narrated the sequence of events to the independent witnesses, TLO and other trap team members, immediately after the trap was over and accused was apprehended by the CBI officers. She had told them that accused had demanded bribe money from her by gesture of hands and accepted the money after counting the same with both of his hands. Out of Rs.2,800/ accused returned Rs.100/ to her and remaining amount he had kept in his left upper shirt pocket. PW 11 Nanhe Ram, PW12 Hans Raj, PW14 Om Parkash and PW17 A V Bhardwaj have deposed the version narrated to them by the complainant immediately after the trap in this court during their examination by the prosecution. Ld. Defence Counsel argued that such version as narrated to them by the complainant after the trap and deposed by them in this court during their examination is inadmissible in evidence against accused being C C No.12/2009 68/75 69 hearsay.
106 Such deposition of the above said witnesses is admissible in evidence U/s 6 of Evidence Act being the part of same transaction covered under res gestae. In this regard, Hon'ble Supreme Court in Bishna alias Bhiswadeb Mahato and Ors. Vs. State of W. B, AIR 2006 SC 302 (1) has held as follows:
"Evidence Act (1 of 1872) S.6 - Hearsay evidence - Murder case - Witnesses came to place of occurrence immediate after incident had taken place - Found dead body of deceased and other injured victim in unconscious state - Also found mother of deceased weeping as also injured witness present there - They heard about entire incident from injured witness and other witness including the role played by each of accused and others - Evidence of said witnesses corroborate evidence of prosecution witnesses as also allegations made in FIR Their evidence would be admissible in terms of S.6."
107 In Rattan Singh Vs. State of H P, AIR 1997 SC 768 (1) Hon'ble Supreme Court has held as follows:
"Evidence Act (1 of 1872) S.6 - Resgestae - Murder case - Act of accused intruding into courtyard during night and inflicting gunshot injury - Victim identifying accused - Statement of deceased before death that accused was standing with a gun and his firing gun at her by proximity of time and space becoming part of same transaction - Hence, such statement is admissible under S.6."
108 In Sukhar Vs. State of U P, AIR 1999 SC 3883 Hon'ble Supreme Court has held as follows:
C C No.12/2009 69/75 70
"Evidence Act (1 of 1872) S.6 - Rule of res gestae -'Part of same transaction' Statement of witness that on hearing sound of firing he wen to the scene of occurrence and found the injured lying on the ground and he told him as to who had fired the shot - Is admissible under S.6, being Part of same transaction i.e. act of shotting by accused."
109 In view of above discussion this court has no hesitation in holding that such evidence is admissible u/s 6 of Evidence Act, hence there is no merit in this arguments.
110 In support of his arguments Ld. Defence Counsel has relied upon Mangat Ram Vs. State of Punjab 2004 (2) CC Cases (HC) 61 wherein Hon'ble High Court of Punjab and Haryana at Chandigarh has held as follows "Prevention of Corruption Act, 1988, Section 7 & 13 (2) Plea of false implication - Plea that basic ingredient of demand of money not proved by any independent source as shadow witness did not support prosecution case shadow witness neither went to office of Vigilance Department with complainant nor any demand or payment made by complainant in his presence as stated by prosecution No occasion for appellant to make a demand for bribe - Held: Basic lacuna of independent corroboration with regard to trap is enough to throw doubts over case of prosecution - Appeal allowed."
C C No.12/2009 70/75 71 111 In support of his arguments Ld. Defence Counsel has relied upon Trilochan Singh Vs. State of Punjab 2002 (2) CC Cases (HC) 348 61 wherein Hon'ble High Court of Punjab and Haryana at Chandigarh has held as follows:
"Prevention of Corruption Act, 1988, Section 7 & 13 (2) Bribe - No evidence of demand by the appellant in the statement of the complainant Another public witness was not present as he was not made shadow witness and instead the police official was made a shadow witness - The fact that the appellant had not put amount in his pocket but thrown away shows that he was not prepared to accept the same - Offence u/s 13 (2) not made out as the element of demand is missing - Appellant acquitted Appeal Allowed."
112 I have carefully gone through the above cited authorities by Ld. Defence Counsel. There is no dispute with the preposition of law laid down in these authorities, however every case has its own facts and circumstances. ratio of law laid down in a particular authority is to be applied according to the peculiar facts and circumstances of that case. From the above discussion it is apparent that facts and circumstances of the case in hand are entirely different than the facts and circumstances of these authorities, moreover both these authorities are of Hon'ble High Court of Punjab and Haryana while the authorities relied upon by this court in the case in hand are of Hon'ble Supreme Court . It is well settled legal preposition that ratio of law laid down by Hon'ble Supreme Court being the highest court of the Country, prevails over the ratio of law C C No.12/2009 71/75 72 laid down by Hon'ble High Courts. in views of above discussion , this court is of opinion that these authorities are of no help to the accused.
113 It is argued that it is a criminal case. In a criminal case burden of proof is very heavy on the prosecution for the conviction of accused. Prosecution has to prove its case beyond reasonable doubts. There is no dispute with this preposition of law 114 Proof of the fact depends upon the degree of probability of its having existed. the standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Proof does not mean proof to rigid mathematical demonstration, because that is impossible, it must mean such evidence as would induce a reasonable man to come to a particular conclusion. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to common C C No.12/2009 72/75 73 course of natural events, human conduct, public or private business visavis the facts of the particular case.
115 Prevention of Corruption Act is a social legislation enacted with the object to curb illegal activities of public servants, in these circumstances according to the law of interpretation of Statute, its provision should be interpreted so as to achieve its object. Our Hon'ble Supreme Court in Ram Singh Vs. State of MP (2000) 5 Supreme Court Cases88 has held as follows:
"Prevention of Corruption Act, 1988 - Nature and interpretation of Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance its object and not liberally in favour of the accused - interpretation of Statutes Particular statutes or provisions - Penal statute - Social Legislation - Interpretation of".
116 Hon'ble Supreme Court in State of Punjab Vs. Pohla Singh, 2003 (3) CCC 75 has held as follows:
"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence If crime is to be punished in a glosseme way niceties must yield to realistic appraisal."
117 In case U/S 13 (1) (d) of P C Act 1988 prosecution has to prove that :
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i) That accused should be a public servant.
ii) That he should used some corrupt or illegal means or otherwise abused his position as a public servant,
iii) That the accused should have thereby obtained a valuable thing or pecuniary advantage.
iv) Such benefit for himself or for any other person.
118 In State represented by Inspector of Police, Pudukottal, T.N. v. A Parthiban [(2006) 11 SCC 473] Hon'ble Supreme Court has held that every acceptance of illegal gratification, whether preceded by a demand or not, would be covered by Section 7 of the Act. But, if the acceptance of an illegal gratification is in pursuance of a demand by the public servant then it would also fall under Section 13(1)(d) of the P.C. Act."
119 In view of above discussion it is well proved from the evidence produced by the prosecution that accused Kapil Kumar who was then working as Assistant Sanitary Inspector in MCD Ward No. 126/96, South Patel Nagar, New Delhi, as a public servant, had demanded illegal gratification for allowing complainant C C No.12/2009 74/75 75 for continuing her job/regularising her service as Safai Karamchari. and accepted Rs. 2,800/ from complainant Kamlesh and returned Rs.100/ to her, which was recovered from his possession, thus accused has abused his official position. In these circumstances this court is of opinion that prosecution has proved its case beyond reasonable doubts against accused, hence accused is convicted for the offences punishable U/s 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI) TODAY On 27.1.2012 SPECIAL JUDGE; DELHI C C No.12/2009 75/75 76 IN THE COURT OF V .K .MAHESHWARI SPECIAL JUDGE: (P C Act)03 CBI) DELHI Corruption Case No.12/2009 CBI Vs. Kapil Kumar s/O Sh B L Kaul, r/o 9A/65 Second Floor, WEA, Karol Bagh, New Delhi. R.C No. 44(A)/08/CBI/ACB/N.D ORDER ON SENTENCE:
Vide my separate judgment dated 27.1.2012 accused was convicted for the offence punishable U/s 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988.
Arguments on sentence heard. It is argued on behalf of convict that he is not a previous convict. He is facing this trial since 2009 and is regularly attending this Court. He has never tried to delay the proceedings. He is sole bread earner of his family. He is having two children aged about 12 and 14 years one of his son is suffering from acute Kidney problem, requires transplantation, C C No.12/2009 76/75 77 convict has to donate his Kidney. He has to support his old ailing parents who are aged about 74 years and 76 years. Convict is also suffering from calculus in gall bladder and to undergo surgery for that. He has an unblemished record of service. It is argued that in these circumstances, lenient view may be taken against him.
It is argued on behalf of CBI by Ld Senior PP Sh Brajesh Shukla that plea of the convict that he will donate his kidney to his son appears to be false and frivolous as an adult cannot donate his kidney to a child as per medical jurisprudence. Moreover during the period of entire trial convict has not raised such plea on any count . Convict is involved in a serious corruption case who was working as Assistant Sanitary Inspector in MCD Ward No. 126/96, South Patel Nagar, New Delhi, as a public servant had demanded illegal gratification for allowing complainant for continuing her job/regularizing her service as Safai Karamchari. and accepted Rs. 2,800/ from complainant Kamlesh and returned Rs.100/ to her, which was recovered from his possession, thus accused has abused his official position. Keeping in view deterrent theory of punishment he should be awarded severe punishment and heavy fine may also be imposed on him, so that society may take lession. It is further submitted by Ld Senior PP that in criminal C C No.12/2009 77/75 78 appeal No. 299 of 1997, titled State of Rajasthan Vs Dhool Singh, Hon'ble Supreme Court, on December 18th , 2003 has held that the Courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is controlled by law and to some extent by judicial discretion applicable to the facts of the case. Therefore, there is need for the Courts to apply its mind, while imposing sentence , as to why it should be less then maximum sentence prescribed under law. Convict be awarded consecutive sentence.
This court has carefully considered all the arguments addressed on behalf of both the parties and have gone through the record. In this case, convict was working as Assistant Sanitary Inspector in MCD, Delhi and was supervising the Safai Karamchari. From the transcription of tape recorded conversation between complainant Kamlesh, who was the then working as substitute Safai Karamchari and convict, it is proved that convict was marking complainant presence in the official record in lieu of which he was receiving her salary under the pretext of getting her C C No.12/2009 78/75 79 services regularized as a regular Safai Karamchari from substitute. He was obtaining her thumb impression/ signatures on the withdrawal slips through which he used to withdraw her salary and returning to her nominal amount of about Rs.100/ thus showing his grace also.
It was in news that thousands of such ghost employees in MCD were on roll call and obtaining their salaries without actually performing their duties. This case is a living example of concept of ghost employees prevailing in MCD thus causing huge loss to public exchequer .
Corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the sting of corruption. It has deep and pervasive impact on the functioning of the entire country. Large scale corruption retards the nationbuilding activities and everyone has to suffer on that count. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice.
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Hon'ble Supreme Court in Balkrishna Chhaganlal Soni Vs State of West Bengal (1974) 3 SSC 567 has observed that social and economic offences stood on a graver footing in respect of punishment and if judicial institutions were not to be cynically viewed by the community, the Courts must help the process of conviction."
In Sewaka Perumal Vs State of T N AIR 1991 SC 1463 Hon'ble Supreme Court has held as follows:
" Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime i.e. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and C C No.12/2009 80/75 81 public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view will be counterproductive in the long run and against social interest.
After considering all the arguments raised before me, Convict is sentenced to undergo four years RI along with a fine of Rs.25,000/ (Rs Twenty Five thousand) I D Three months S I U/S 7 and to undergo Four years RI along with a fine of Rs.25,000/ (Rs Twenty Five thousand) I D three months S I U/S 13 (2) R/w Section 13(1) (d) of P C Act 1988. Both the sentences will run concurrently. Benefit of Section 428 Cr P C be also given to accused.
A copy of judgment and this order on sentence be given to convict free of cost. File be consigned to RR.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI)
st
TODAY ON 31 Jan. 2012 SPECIAL JUDGE: DELHI
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