Delhi District Court
State vs . Arun Sehrawat on 30 April, 2011
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI
Case ID No. 02401R0791042006
CC NO. 90/09
State Vs. Arun Sehrawat
S/o Sh. Dharam Pal,
R/o H. No. 1245,
Vill. & PO Bawana, Delhi.
FIR NO : 34/2005
U/S : 7 & 13 (1) (d) & 13 (2) POC Act
PS : AC Branch
Date of institution : 05.09.2006
Judgment reserved on : 29.04.2011
Judgment delivered on : 30.04.2011
JUDGMENT
1. As per prosecution, on 12.08.2005, a complaint was lodged against one Asstt. Sanitary Inspector Arun Sehrawat for demanding bribe of Rs. 2000/ for changing the beat duty of the complainant. The complainant Praveen handed over the written complaint to Insp. Satish Sharma (Raid Officer) in the presence of panch witness Mahesh Kumar. Thereafter, complainant and panch witness appended their signatures on the complaint The same was attested by the Raid Officer.
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2. The complainant produced four GC notes in the denomination of of Rs.500/ each before the Raid Officer who recorded the numbers of the same in preraid report. After getting the same checked by panch witness, phenolphthalein powder was applied on the GC notes and right hand of panch witness was touched to the tainted GC notes and thereafter right hand wash of panch witness was taken in colorless solution of sodium carbonate which turned pink. The characteristics of phenolphthalein powder were explained to the complainant and panch witness.
3. The complainant was instructed to keep the panch witness close to him and to talk and to transact with accused in such a manner so that the panch witness would be able to overhear and see the transaction. The complainant was further instructed to give the bribe money to the accused only on his specific demand.
4. The panch witness was instructed to remain close to the complainant and overhear the conversation between complainant and accused and also observe the incident and after the demand and acceptance of money by the accused, he should give a signal to the raiding party by hurling his hand over his head twice.
5. Thereafter Raid officer, in the presence of panch witness, handed over those tainted GC notes to the complainant who kept the same in the left State Vs. Arun Sehrawat Page No. 2/ 27 side pocket of his shirt.
6. The hands of panch witness were got washed with the soap and clean water while the solution was thrown away. The RO recorded pre raid proceedings.
7. At about 6:00 AM., complainant alongwith panch witness, Raid Officer Insp. Hem Chand, IO Insp. Satish Sharma and other members of raiding party left AC Branch in a Government vehicle for Sunder Vihar and reached there at about 7:00 AM whereas govt. vehicle was parked at some distance from Sunder Vihar Bus Stand.
8. The complainant and panch witness were again instructed and sent towards the place where the attendance of employees were marked while the members of the raiding party followed them keeping reasonable distance. The IO Insp. Satish Sharma and driver were left in the vehicle.
9. At about 7:30 AM, complainant and panch witness come to the Raid Officer when complainant informed that his attendance was marked and he was going to his beat for sweeping work. The Raid Officer asked the complainant to inform him if there was any other complaint. The Raid Officer informed the senior officers. The G.C. Notes notes were left with the complainant. The raiding party came back to the A.C. Branch and the raid State Vs. Arun Sehrawat Page No. 3/ 27 was kept in abeyance.
10. On 16.08.2005, at about 4:30 PM, Raid Officer received a telephone call from the complainant Praveen that Arun Sehrawat had called him on 17.08.2005 at 11:00 AM at JE Office Paschim Vihar with bribe amount of Rs.2000/. RO immediately informed his senior officers and called the complainant to Jwala Heri, Red Light Point, Paschim Vihar at about 10:30 AM on 17.8.2005 alongwith the treated GC notes. Panch witness was also informed and bound down for 17.8.2005. RO prepared the proceedings.
11. On 17.08.2005, at about 09:30AM, RO alongwith panch witness, IO Insp. Satish Sharma and other members of raiding party left AC Branch, in a govt. vehicle and reached Jwala Heri Market at about 10:30 AM where the complainant met them. RO compared the numbers of treated GC notes, produced by the complainant, with the numbers recorded in the pre raid report. The complainant and panch witness were again briefed about the instruction. GC notes were given to the complainant which he kept in the left side pocket of his shirt.
12. At about 11:54 AM, all the members of raiding party left in a government vehicle and reached JE site, Paschim Vihar at about 12:05 PM. The govt. vehicle was parked at about 400500 meters away from the JE site State Vs. Arun Sehrawat Page No. 4/ 27 office. IO Insp. Satish Sharma and driver were again left in the govt. vehicle.
13. The complainant and panch witness were sent inside the boundary of JE site office while the raiding party followed them by keeping reasonable distance and took suitable positions near the spot.
14. At about 12:15 PM, panch witness gave the preassigned signal and Raid Officer alongwith the raiding party reached inside the boundary wall of JE site and found one person sitting alongwith complainant and panch witness.
15. On asking, the panch witness told the RO that the accused Arun Sehrawat had demanded and accepted bribe money of Rs. 2000/ from the complainant in his right hand and had kept the same in the left side pocket of his shirt.
16. The Raid Officer disclosed his identity as an AC Branch official to the accused Arun Sehrawat and challenged him. The Raid officer also offered the accused to take search of the members of raiding party including himself (Raid Officer) before taking the search of the accused but the accused declined.
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17. On the instruction of the Raid officer, panch witness recovered the bribe money from the left pocket of shirt of the accused. The numbers of the recovered GC notes were tallied with the serial numbers recorded in pre raid report. Thereafter, the recovered GC notes were taken in possession vide seizure memo.
18. The right hand wash of accused was taken in the colorless solution of sodium carbonate which gave positive result of the presence of phenolphthalein. The same was transferred into two clean glass bottles and sealed with the seal of HC.
19. Similarly, the wash of left side shirt pocket of accused was taken in the colorless solution of sodium carbonate which also gave positive result. The solution was transferred to two clean glass bottles and sealed with the seal of HC. The shirt was converted into parcel and sealed with the same seal.
20. Sealed bottles containing washes and the sealed parcel containing shirt of accused were taken in possession vide seizure memo. Accused Arun Sehrawat was arrested. Thereafter Raid Officer prepared post raid report.
21. IO Insp. Satish Sharma was called to the spot and exhibits / case property as well as accused Arun Sehrawat, copy of raid report and related State Vs. Arun Sehrawat Page No. 6/ 27 documents were handed over to him for investigation.
22. The case was registered and chargesheet filed and charges were framed.
23. As per the charge, on 17.08.2005 at B4, Paschim Vihar, Delhi accused Arun Sehrawat while posted as Asstt. Sanitary Inspector, MCD, West Zone, Delhi and as such being a public servant demanded and accepted bribe of Rs. 2000/ other than legal remuneration from the complainant for posting of the complainant in a smaller beat/area and not to be posted in the larger beat of the circled alongside Jwala Heri, Paschim Vihar and thereby he committed an offence punishable u/s Prevention of Corruption Act, 1988.
24. Secondly, on the abovesaid date and place, accused Arun Sehrawat being employed as above public servant obtained bribe of Rs. 2000/ from the said complainant as a pecuniary advantage for himself by corrupt or illegal means or otherwise by abusing his position as such public servant and thereby he committed an offence of criminal misconduct as specified u/s 13(i)(d) and punishable u/s 13(2) of the Prevention of Corruption Act, 1988.
25. Accused pleaded not guilty and claimed trial.
26. In evidence, the prosecution had examined ten witnesses to State Vs. Arun Sehrawat Page No. 7/ 27 substantiate the charge whereas the accused had examined one witness in his defence.
27. I have heard the arguments on behalf of prosecution wherein Sh. Abdul Aleem, Addl. PP for state has stated that the accused had been caught redhanded while accepting the bribe. The hand wash including the pocket wash, have all resulted in positive indicating that the accused had handled tainted GC notes. The fact that the accused had the occasion to ask bribe from the complainant has been proven who was his subordinate. The law, in regard to the demand, acceptance and consequential recovery, have been complied with in the present case and as such the accused be held guilty.
28. Sh. R. S. Singhal, counsel for accused has vehemently controverted the contention raised by the Ld. PP in as much as Ld. Counsel states that the Safai Karamchari Union had inimical relations with the accused and as such they had sought the present means to remove the accused. The contention that accused was not the authority who could transfer the accused nor was the place where the alleged bribe amount was received fixed in as much as there was a contradiction in the different testimonies of the witnesses. The accused is entitled to benefit of doubt and as such acquittal.
29. Prior to the determination of the complicity of the accused in State Vs. Arun Sehrawat Page No. 8/ 27 commission of the offence it is imperative to determine whether the prosecution had procured the sanction under the provision of POC Act which is sine quo non for prosecution of the accused under POC Act.
30. For the said purpose Devender Singh, DTTDC has been examined as PW2 who has testified that in March 2006 he was posted as Deputy Commissioner, West Zone when a request has been received from AC Branch with copy of FIR, raid report, Statement u/s 161 Cr.PC, report of FSL, to grant sanction u /s 19 of POC Act to prosecute the accused posted as Assistant Sanitary inspector in MCD in circle 39. The witness has gone through the documents placed before him and after carefully examining facts and circumstances of the case, he was of the view that accused should be prosecuted and he had accorded sanction u/s 19 of POC Act on 30.03.06 vide sanction order Ex.PW2/A bearing the signature of witness at point A, The said sanction order sent to DCP, AC Branch vide covering letter Ex.PW2/B through HPS Saran who has signed at point A.
31. The witness was cross examined. It was inquired whether brief facts were sent by the AC Branch to the Chief Vigilance officer MCD along with a request which is admitted by the witness The witness has admitted that he had also gone through the same. However, the witness has denied that the sanction was accorded without due application of mind and in a mechanical manner.
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32. Sanction U/s 19 of POC Act is not an idle formality, but it is a sacrosanct act as the future and career of a Government official is involved. Hon'ble Supreme Court in Ram Kishan Prajapati Vs. State of U.P., (2000) 10 SCC43 has stressed that the person according sanction should be a competent person and a sanction accorded by the person not competent to grant the same cannot be held to be a valid sanction. This fact has not been challenged by the accused.
33. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the court has to see is whether or not the Sanctioning Authority, at the time of giving sanction, was competent to accord sanction and whether it had applied its mind. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
34. Sanction lifts the bar for prosecution. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. The validity of the sanction would, therefore, depend upon the material placed before the State Vs. Arun Sehrawat Page No. 10/ 27 Sanctioning Authority and the fact that all the relevant facts, material and evidence have been considered by the Sanctioning Authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the Sanctioning Authority had considered the evidence and other material, placed before it. This fact can also be established by the extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority.
35. Since the validity of "sanction" depends on the application of mind by the Sanctioning Authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution. State Vs. Arun Sehrawat Page No. 11/ 27
36. The Hon'ble Delhi High Court in the case of Bhisham Kumar Vs. State 1999 (iii) AD (Delhi) 177, has also applied the test as prescribed in the enunciation of the Hon'ble Supreme Court in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh 1979 Chandigarh Criminal Cases 113 (SC) and the view taken by the Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622 (supra). Hence, we can say that a valid and tenable sanction had been accorded.
37. In view of the fact that a proper and valid sanction had been accorded it remains to be seen whether the complaint made by Pw6 Praveen has been proven on record subsequent to which a raid was constituted and the accused apprehended.
38. In the testimony of PW6 the initiator of the case against the accused, the complainant has testified that in February, 2002 he was appointed as safai karamchari on compassionate ground as his father had died in harness and that the witness had undergone surgery of his appendix and as a result thereof was unable to perform his duty in an area which was large in dimension. The witness had also requested other officials of the department for changing the area of duty. The accused was also asked but he demanded a sum of Rs.2000/ for changing the duty area. State Vs. Arun Sehrawat Page No. 12/ 27
39. Being averse to the concept of bribe the witness had lodged a complaint at AC Branch which is Ex.Pw6/A with the inspector in presence of panch witness by the name of Mahesh. A sum of Rs.1000/ was brought by the witness in the denomination of Rs. 500/ each and handed over to the RO Inspector Hem Chand who recorded the number of GC notes and applied powder on the GC notes. Demonstrations of the purpose and consequence of said application was given. After throwing away the pink residue instructions were given to panch witness to remain close to the complainant and to observe and hear the conversation and on being satisfied that the bribe amount had actually been given, the panch witness was required to give signal by hurling his hand over his head. Similarly the complainant was also instructed. Pre raid proceedings were drawn which is Ex.PW6/A on which the signatures of complainant are appended.
40. In the afternoon the complainant alongwith panch witness, RO and other members of raiding team left the AC Branch in a government vehicle and reached Paschim vihar where the attendance of safai karmacharis used to taken place. The vehicle was parked at some distance and members of the raiding team proceeded towards the spot. The complainant met the accused and told him that he had brought Rs.2000/ as demanded by him at which the accused stated that the complainant come later. This was divulged to the raiding team who recorded the proceedings Ex.Pw6/C. State Vs. Arun Sehrawat Page No. 13/ 27
41. On 16.8.05 the accused asked the complainant to arrange the bribe amount for 17.8.05. This fact was divulged to the Raid Officer on the telephone. The complainant met the raiding team at about 7.00am and GC notes were handed over. Accused was informed that the money had been brought by the complainant but the complainant asked the accused to go to his duty first. While he was on his duty at about 10.00am the accused demanded the amount from the complainant and as the amount was not with him he could not pay the said amount. However the accused asked the complainant to give the money at the time of second attendance at about 11.30am. At about 11.30am the complainant alongwith raiding team went to the JE office where the complainant was required to meet the accused. The GC notes were kept by the complainant in his shirt pocket. Complainant, panch witness and the raiding team reached the office of JE. The complainant and the panch witness went to the said place where the accused was sitting. The accused told the complainant that he had brought the bribe amount as demanded which the accused asked the complainant to hand over. The GC notes were taken out from his shirt pocket and handed over to accused. The same was kept by accused in his shirt pocket. The panch witness gave predetermined signal and the accused was apprehended by the Raid Officer.
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42. On the query by the raid officer, panch witness divulged that accused had demanded Rs.2000/ from complainant and kept the same in his shirt pocket. Search was taken on the instruction by the panch witness, GC notes were recovered from shirt pocket of accused. Serial numbers were tallied and on being found identical same were taken in possession vide memo Ex.Pw6/D. The right hand wash was also taken which gave positive result of presence of phenolphthalein. Same was transferred into two bottles and sealed, preserved and identified vide memo Ex.Pw6/E. Left shirt pocket wash was also taken, the same was converted into parcel. Post raid proceedings were prepared Ex.PW6/F and the accused was arrested vide arrest memo Ex.Pw6/G. The witness had identified the GC notes as Ex.P1 to P4 and hand wash as RHWi, RHWii and LSPPWi, LSPPWii as Ex.P5 to P8. The shirt seized at the spot was also identified which is Ex.P9 and the parcel as Ex.P10.
43. The witness was cross examined by the accused in which the witness had maintained that the accused had demanded bribe amount first on 9/10.08.05 and that the accused had demanded the same 23 times and demand made on 09.8.05 culminated into complaint according to which the complainant went to AC Branch on 12.8.05. It is also testified that after the raid, on 12.8.05 and between 1315.8.05 no demand was made and it was only on 16.8.05 when accused demanded the money in the morning attendance that the complaint was lodged. Despite the endeavors of the State Vs. Arun Sehrawat Page No. 15/ 27 accused to dislodged the testimony of the complainant, the complainant has withstood the rigors of cross examination and has maintained his stand barring minor discrepancies which do not go to the merit of the case.
44. The testimony of Pw6 manifests a complaint by a person having a grievance against his officers who is alleged to have demanded bribe amount for assigning him to an easier area for his duty. As attributed by the defense the same was in retribution to the fact that there was a coterie and the said members did not want the accused in their ward and had found the present means to remove him. It is also suggested that Raj Kumar the maternal uncle of the complainant and Om Prakash were also working under the said accused including one Jeet Ram who were members of Ram Rakha Union. It is suggested that the aforesaid persons would abuse the accused and a complaint had been lodged against the said persons for the dereliction of their duty. However, to verify whether the said complaint is an outcome of any ill will corroboration is required aliunde.
45. For the said purpose, Pw7 Mahesh Kumar UDC was examined who has testified that on 17.8.05 while posted as such he was on panch duty in AC Branch and had been deputed earlier also on 12.8.05 when the complainant had lodged his complaint against one MCD employee by the name of Arun Sehrawat regarding demand of bribe to change the duty of complainant. The signatures of the panch witness are on Ex.Pw6/A. The State Vs. Arun Sehrawat Page No. 16/ 27 panch witness has reiterated the entire sequence of demonstration of the application of phenolphthalein over the GC notes which handed over to the RO.
46. The panch witness (PW7) had also narrated the entire incident of 12.08.2005 when at 6.30am he had joined the raiding party. The raid had failed on said date. The said raid proceedings are Ex.Pw6/C. The panch witness (PW7) has further testified that on 16.8.05 he was informed that he was required to report on 17.8.05 at about 9.30am. And at about 10.30am the panch witness left for Jwala Heri Market, with the raiding team where the complainant met the raiding party. After the proceedings had been drawn subsequent to the demonstration of the purpose and intent of the application of phenolphthalein powder on the GC notes, the panch witness alongwith complainant went to the MCD office where the accused met the complainant and has testified categorically that accused had taken the GC notes and assured that he would change his duty. The accused had accepted the bribe amount in his right hand and had kept the same in the left pocket of his shirt. After apprehension of the accused the panch witness retrieved the GC notes from the pocket of the accused and tallied the number and on finding the same to be identical with pre raid report the same were taken in possession vide Ex.Pw6/D. The hand wash of accused was also taken including that of pocket the same have been identified by the witness. The accused was thereafter arrested vide memo Ex.Pw6/G and the personal State Vs. Arun Sehrawat Page No. 17/ 27 search was taken vide memo Ex.Pw6/H. The raid officer had drawn post raid proceedings Ex.Pw6/F.
47. The witness in the cross examination has maintained that on 17.08.05 the accused had in his presence asked the complainant that he would receive the amount in his office. It is further maintained that the accused was present in the MCD office and predetermined signal had been given. The panch witness had maintained that the accused, in his presence, had infact demanded and accepted the bribe amount from the complainant and has further denied that no proceedings had taken place at the spot.
48. The law in this regard is well defined where the demand and acceptance has been amply proven followed by the recovery of the bribe amount from the person of the accused in Madhukar Bhaskar Rao Joshi vs. State of Maharashtra (2000) 8 SCC 571 wherein the Hon'ble Supreme Court also cited M.Narsinga Rao V State of A.P. 2001 (1) Supreme Court Cases 691, it was held that : "The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean State Vs. Arun Sehrawat Page No. 18/ 27 reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to be public servant who received it".
49. Further in B Noha vs. State of Kerala & Anr. in Crl. Appeal no. 1122/06 (Arising out of SLP (Crl.) No.952/06) it was held that :
" It is not the 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 AP v. Kommaraju Gopala Krshna 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. The accused has not discharged the burden''.
50. Where unimpeachable evidence has come forth through the witnesses Pw5 and Pw6 it is left to Pw9 the Raid Officer to lend further State Vs. Arun Sehrawat Page No. 19/ 27 support to the prosecution case in proving the culpability of the accused beyond reasonable doubt.
51. In Dhanvantral Balvantral Desai V. State of Maharashtra 1964 Crl.LJ437, the Hon'ble Supreme Court observed that : "Therefore the court has no choice in the matter once, it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised u/s 114, Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one.
The words unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by ' proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be State Vs. Arun Sehrawat Page No. 20/ 27 so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.....
Something more, than raising a reasonable probability, is required for rebutting a presumption of law. The bare word of appellant is not enough and it was necessary for him to show that upon the established practice his explanation was so probable that a prudent man ought, in the circumstances, to have accepted it."
52. In State of AP 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. The accused has not discharged the burden''.
53. After the initial narration of the procedure and demonstration of the raid proceedings the Raid Officer has testified that on 12.8.05 the witness alongwith complainant and panch witness and Inspector Satish Sharma, SI Om Prakash alongwith member of raiding party left for Sunder Vihar where Inspector Satish Sharma was left behind in the vehicle while the raiding team proceeded to follow the complainant. It is testified that the complainant and State Vs. Arun Sehrawat Page No. 21/ 27 panch witness came to the RO and informed that complainant would be going on his beat. The raid did not fructify.
54. However, on 16.8.05 at abut 4.30pm a phone call was received from the complainant that accused had called him on 17.8.05 at the JE office with the bribe amount. This information was transmitted to the senior officers and the complainant was called at Jwala Heri Market and as the panch witness had been bound down for 17.8.05 raid proceedings were prepared vide Ex.Pw7/A. On 17.8.05 the witness along with inspector Satish Sharma and raiding team including panch witness went towards Jwala Heri market red light and reached at 10.30am where the complainant met the raiding team. The raid officer checked the tainted GC notes including the serial numbers and phenolphthalein powder on the GC notes was applied and further the witnesses were briefed about the instructions.
55. It is testified that at about 11.45pm all the members of raiding party reached the JE site at Paschim Vihar and after leaving the vehicle at a distance with inspector Satish Sharma and the driver the raiding party took their respective position. At about 12.15pm the RO received predetermined signal from the panch witness where the accused was found alongwith the complainant and panch witness. The panch witness was inquired as to what had transpired to which the panch witness replied that accused had demanded and accepted bribe amount of Rs.2000/ from complainant and State Vs. Arun Sehrawat Page No. 22/ 27 had kept the same in left pocket of his shirt. The RO after introduction and offering himself and raiding team for their personal search took the personal search of accused and got the panch witness to retrieve the bribe amount. Serial numbers were tallied which were found to be identical. The same were seized vide seizure memo Ex.PW6/D. The hand wash and the pocket wash was also taken. The residue was preserved, sealed and identified.
56. The shirt was also taken into possession. After preparation of post raid proceedings Ex.Pw6/F, rukka was prepared and sent through Ct. Shaukat Ali. Inspector Satish Sharma was called at about 2.30pm custody of accused, case property etc. the proceedings were handed over to the IO.
57. The cumulative evidence manifest a congruency in its narration and barring a few variations there is no discrepancy whatsoever in the proof of demand, acceptance and the recovery of the GC notes taken as a bribe by the accused. The law recognises the fact that in the course of trial which spans over a number of years there is bound to be variation and discrepancies:
58. As regards the inconsistencies in the testimonies of the prosecution witnesses, the Hon'ble Supreme Court has held :
"Inconsistencies here and discrepancies there but that is the shortcoming from which no criminal case is free. The main thing to State Vs. Arun Sehrawat Page No. 23/ 27 be seen is whether the inconsistencies etc. go the root of the matter (Krishna Pillai Sree Kumar Vs. State of Kerala, AIR 1981 SC 1237).
59. Even though Pw9 is not required to be an ocular witness yet it is testified by the witness that the event was visible from the spot where the accused had handed the bribe amount subsequent to the demand of bribe by the accused. Infact all the relevant witness have proved their testimony inculpating the accused in his demand and acceptance of bribe.
60. The fact that bribe amount was recovered from the custody of the accused raises the presumption which in rebuttal the accused has not discharged. The Hon'ble Delhi High Court in Sunil Kumar Sharma Vs. State (CBI) 2007 (2) JC 1315 has held the the testimony of the complainant can be relied upon without corroboration to inculpate the accused. In my considered opinion the said fact is sufficient to inculpate the accused of the offence U/s 7 & 13 of the POC Act as has been observed in the enunciation ZakaullahAIR 1998 SC 1474 .
of the Hon'ble Supreme Court in State Vs. In the said case where both the panch witness and the complainant were not forthcoming with support of the prosecution case. The Hon'ble Supreme Court on the basis of the testimony of the Raid Officer had found case against the accused established as in State of West Bengal Vs. Kailash State Vs. Arun Sehrawat Page No. 24/ 27 Chandra Pandey, AIR 2005 Supreme Court 119:
"....... What is material is the acceptance of money by the accused which is more than apparent from the evidence of the prosecution witnesses that the money was recovered from the accused and the accused's hand which accepted the currency notes was washed and the hand was turned into pink color water and likewise the accused's pant pocket which was washed, the water also turned into pink. Therefore, from the chain of circumstances, the prosecution story stands fully substantiated. Consequently, acquittal of accused was unjustified."The definition of demand had earlier been elaborated in Ram Krishan & Anr. vs. State of Delhi AIR 1956 SC 476*(1)
61. PW10 Insp. Satish Sharma had been examined who has testified as to the fact that he was called to the spot at about 2.40pm by Inspector Hem Chand and custody of accused identified by the witness together with bribe amount and exhibits were handed over to the witness who prepared the site plan at the instance of complainant and panch witnesses. Statements were recorded. The FIR and rukka was handed over to the witness subsequent to the registration of FIR by the Duty officer KL Meena. The personal search of the accused was taken and accused was arrested vide memo Ex.PW6/G. The witness was also instrumental in State Vs. Arun Sehrawat Page No. 25/ 27 depositing the residue at FSL through head constable Shaukat Ali and receiving the FSL report Ex.Pw10/C which gave positive result of presence of phenolphthalein. The chemical analysis further corroborates the receipt of the bribe amount.
62. On completion of the prosecution evidence statement u/s 313 Cr.PC was recorded wherein the accused has denied his complicity and culpability in commission of the offence.
63. The evidence of the IO even though does not ipso facto prove that accused had accepted the bribe but nevertheless the said witness has proven on record that infact it was the accused was was arrested subsequent to the demand and acceptance of bribe notwithstanding the statement u/s 313 Cr.PC where the accused has denied his complicity by stating that he was innocent and that he was not competent to change the duty of the complainant and it was infact an outcome of ill will and retribution of the safai karamchari union who were not functioning properly that the complaint had been made. The witness has stated that he did not accept any bribe.
64. From the decisions of the Supreme Court in the above mentioned cases, it is thus clear that the prosecution version on the basis of oral evidence of the complainant and the Police Officers, without corroboration of a public witness can be accepted when besides such evidence, there is State Vs. Arun Sehrawat Page No. 26/ 27 circumstantial evidence which is consistent with the guilt of the accused (Ram Kishan Vs. State of Punjab, 1995 Cr.LJ 2892 page 2896).
65. The statement made by the accused is contrary to the evidence brought on record which as stated is unimpeachable and in consequence the prosecution has successfully proven on record that accused had demanded and accepted the bribe which was subsequently recovered from him. Hence the charges have been proven against the accused. The accused is accordingly held guilty under the provisions of Section 7 & 13 (1) (d) punishable u/s 13(2) of the POC Act.
To come up for arguments on quantum of sentence.
Announced in the open court
th
today on 30 April, 2011 (RAKESH SIDDHARTHA)
SPECIAL JUDGE (PCACT)06
TIS HAZARI, DELHI
State Vs. Arun Sehrawat Page No. 27/ 27
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI
Case ID No. 02401R0791042006
CC No. 90/09
State Vs. Arun Sehrawat
S/o Sh. Dharam Pal,
R/o H. No. 1245,
Vill. & PO Bawana, Delhi.
FIR NO : 34/2005
U/S : 7 & 13 (1) (d) & 13 (2) POC Act
PS : AC Branch
Judgment delivered on : 30.04.2011
Order on Sentence announced on : 27.05.2011
ORDER ON SENTENCE
1. It is never too simple and easy to incarcerate a person for his offence and be certain as to whether the sentence so given is commensurate with his act. An overview and humane touch is required when a plea of the plight of the family and the dependents is taken before the court. It is true that we are answerable for our own acts but it is seldom that others are not effected by it. Be it the offence or punishment.
State Vs. Arun Sehrawat Page No. 28/ 27
2. I have heard Sh. Abdul Aleem, Ld. APP for the State and Sh. Ashwini Kumar, Advocate for the convict on the point of sentence.
3. Learned counsel for the convict submits that convict Arun Sehrawat is a young man and in the prime of his youth. The convict has a family including an infant who requires constant parental care which the infant shall be deprived of in event of prolonged incarceration of the convict. The counsel for convict has also prayed that compassion be shown in passing the order of sentence keeping in view the entire facts and circumstances of the case as well as the future of the convict.
3. It is also stated by the counsel for the convict Sh.Ashwini Kumar that the convict has had impeccable service record. He is a man of character without any blemish barring the incident in which he has been convicted.
4. Ld. PP for the State submits that convict Arun Sehrawat does not deserve any leniency. Being a public official, he had to manifest honesty and diligence in his functioning but he had misused his official position for personal gain.
5. After hearing both the sides and upon perusal of the record, I find that it is difficult to accept the prayer of the convict that he deserves any leniency in this case.
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6. In words of Justice I. D. Dua in Ram Sarup Charan Singh Vs. The State, AIR 1967 DELHI 26 it has been held that : "I may before closing draw the attention of the authorities and all concerned to the grave danger to our very existence as a free, honest democratic welfare society when we became indulgent to our police personnel getting habitual to taking bribes."
7. The Hon'ble Supreme Court in Swatantar Singh Vs. State of Haryana 1997 4 SCC 14 observed as under : "Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralizing the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently truthfully honestly and devotes himself assiduously to the performance of the duties of his post".
8. Corruption is all pervading and it is the public service that has to manifest honesty and diligence in its functioning so as to give a clean society. Lest the public service degenerates and become a cauldron of corruption, the courts have to step in and send a message that the society shall not endure this degeneration in public life. Imposition of sentence State Vs. Arun Sehrawat Page No. 30/ 27 without considering its effect on the social order in any cases may be in reality a futile exercise. The social impact of the crime e.g. 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 public interest, cannot be lost sight of an per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. AIR 2005 SC 682, The Principle has been laid down in culpae poenae par esto.
9. The convict does not deserve any indulgence from the court of law and as such custodial sentence of Rigorous Imprisonment alone would serve as a real deterrent because the conduct of the corrupt government servant deserves to be seriously deprecated and no clemency can be shown.
10. Keeping in view the fact and circumstances of this case, I sentence convict Arun Sehrawat to undergo RI for a period of one year with a fine of Rs. 10,000/ u/s 7 of POC Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of three months. The convict is further sentenced to undergo RI for a period of one year with fine of State Vs. Arun Sehrawat Page No. 31/ 27 Rs15,000/ U/s 13(1)(d) punishable U/s 13(2) of POC Act and in default of payment of fine, convict shall undergo SI for a period of three months. Both the sentence shall run concurrently and the convict shall be entitled to benefit u/s 428 Cr.PC.
11. A duly attested copy of the judgment and this order be supplied to the convict free of costs and thereafter file be consigned to record room.
Announced in the open court (RAKESH SIDDHARTHA)
th
today on 27 May, 2011 SPECIAL JUDGE (PCACT)06
TIS HAZARI, DELHI
State Vs. Arun Sehrawat Page No. 32/ 27