Delhi District Court
State vs . Pawan Singh Malik Page 1 Of 29 on 25 August, 2014
1
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE
Versus
Pawan Singh Malik
S/o Late Sh. Mangal Singh
R/o Village & PO Makhmoolpur,
PSKhandla, Distt. Muzaffarnagar,
Uttar Pradesh
Corruption Case No. : 16/2013
FIR No. : 21/2010
Case Identification No.: 02401R0355702013
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988
CHALLAN INSTITUTED ON : 17.07.2013
JUDGMENT RESERVED ON : 22.08.2014
JUDGMENT PRONOUNCED ON : 25.08.2014
JUDGMENT
1.1 Pawan Singh Malik, an ASI in Delhi, then posted at PS Mansarover Park has been charge sheeted by PS ACB for offence u/s 7 State Vs. Pawan Singh Malik Page 1 of 29 2 and 13 of Prevention of Corruption Act ( hereinafter called as POC Act ) 1.2 It is the case of the prosecution that one Shiv Karan got registered a complaint on 7.5.2010 alleging that his 26 years old son Ashwani Karan was arrested by ASI Pawan Singh Malik on 13.04.2010 in a false case of motor cycle theft. He was subsequently released on bail . IO of the case i.e. accused ASI Pawan Singh Malik had been regularly demanding money. The money was being demanded for having helped in grant of bail and with a promise to reduce the gravity of case. He had also threatened of getting complainant's son declared BC in case the amount of Rs. 5,000/ was not paid. On the day of complaint ASI Pawan Singh Malik agreed to the request of complainant to accept Rs. 4,000/ and called him to police station at 5.00 PM. Complainant had also brought to PS ACB Rs. 4,000/, which was to be paid as bribe to accused Pawan Singh Malik.
1.3 Complaint was marked by DCPACB to Inspector Dharamvir Singh. Inspector Dharamvir Singh ( hereinafter referred as Raid Officer/RO) associated a panch witness Subhash Chand and after his satisfaction decided to conduct raid. Preraid proceedings were carried out. Complainant and the panch witness were demonstrated the use of phenolphthalein powder. Appropriate instructions were given to both of them to be followed at the time of trap. The trap was conducted at PS Mansarover Park at 5.00 PM wherein accused was apprehended while accepting Rs. 4,000/ in treated GC notes. State Vs. Pawan Singh Malik Page 2 of 29 3 Recovered GC notes were seized. Hand wash and pocket wash of the pant of accused were taken. Case property was seized. FIR was got registered. Further investigation was handed over to Inspector B.K. Singh, IO.
2. After conclusion of investigation, challan was filed by IO/Inspector B.K. Singh in the court on 17.07.2013. Cognizance of the offences u/s 7/13 of Prevention of Corruption Act, 1988 was taken. Accused was summoned to face trial. On appearance of the accused, provisions of sec.207 Cr.P.C. were complied with.
3. After hearing the accused on charge, Charge for offences punishable under section 7 and section 13(2) POC Act was ordered to be framed vide order dated 09.09.2013. Accordingly charge was framed against the accused to which he pleaded not guilty and claimed trial. 4.1 Prosecution, in support of its case, examined 15 witnesses. Complainant Shiv Karan (PW10) proved his complaint, the pre raid and post raid proceedings. Demand, acceptance and recovery of GC notes was also deposed by him. Subhash Chand (PW13) panch witness to the raid supported the case of prosecution.
4.2 HC Anand Prakash (PW2) was also member of the raiding team. He has also briefly deposed about the trap proceedings. He was handed over the rukka by RO/Inspector Dharamvir Singh which he brought to PSACB and got registered the FIR. ASI Ramesh Kumar (PW9) was the duty officer. He has proved recording of FIR in the State Vs. Pawan Singh Malik Page 3 of 29 4 present case at 8.15 PM on 7.5.2010.
4.3 HC Ishwar Singh (PW8) was the MHC(M) at PS Civil Lines on 7.5.2010. Inspector B.K. Singh deposited the case property with him on 7.5.2010. HC Jai Prakash (PW7) was MHC(M) on 9.6.2010. He handed over exhibits to Ct. Kuldeep Singh for being carried to FSL, Rohini. Ct. Kuldeep Singh (PW4) has deposed about collecting of exhibits from MHC(M) and depositing the same at FSL. Ct. Ram Swaroop (PW5) has deposed about collecting the remnants from FSL and the report. He deposited the remnants with MHC(M) and report with the IO. HC Ram Kumar (PW3) was MHC(M), PS Civil Line on 3.12.2010. He has deposed that Ct. Ram Sarup brought back the remnants from FSL and deposited the same with him. All the aforesaid witnesses have stated that the case property was not tampered with as long as it remained in their respective custody. 4.4 C. Arvind (PW1) was posted as Deputy Commissioner (HR), Department of Industries, on 23.04.2010. On that day he had sent amended panch witness duty roaster for the month of May,2010 to DCPACB. HC Devinder (PW12) was posted as Duty Officer at PS Mansarover Park on 14.4.2010. He has proved lodging of FIR No. 88/10 u/s 379/411 IPC against Ashwani Karan, on a rukka having been sent by ASI Pawan Singh Malik (present accused) 4.5 ACP Rakesh Kumar (PW6 ) was posted at Model Town, PCR. He had sent biodata of accused Pawan Singh Malik to PS ACB State Vs. Pawan Singh Malik Page 4 of 29 5 on 15.2.2013. Dheeraj Kumar (PW14) was Additional DCP (GA), PCR, Delhi. He proved grant of sanction to prosecute accused ASI Pawan Singh Malik, having been granted by him.
4.6 RO/ACP Dharamvir Singh (PW11) proved the trap proceedings. He has deposed about marking of complaint to him, association of panch witness, demonstration of use of phenolphthalein powder, issuance of instructions to the complainant and panch witness. He has deposed about trap proceedings and receipt of predetermined signal from the panch witness, where after the accused was apprehended and treated GC notes were recovered from the pocket of his pant. He also proved the proceedings of hand wash and pant pocket wash turning pink. Seizure of washes, currency notes and pant of accused is proved by him. IO/Inspector B.K. Singh (PW15) has proved preparation of site plan, recording of statement of witnesses, collecting the FSL report and sanction to prosecute the accused.
5. Incriminating evidence was put to the accused. He did not dispute being posted as ASI at PS M.S. Park. However, he denied having demanded bribe from Shiv Karan for reducing the gravity of case against his son. He stated complaint Ex. PW10/A dated 7.5.2010 to be false. He denied any knowledge of treated GC notes having been brought by complainant. He denied knowledge of constitution of raiding party or its arrival at PS M.S. Park. He stated that complainant came to reader's room of PS M.S. Park at about 5.00 PM and thrust his State Vs. Pawan Singh Malik Page 5 of 29 6 right hand in left pocket of his pant. Immediately RO reached there and complainant Shiv Karan produced GC notes from his left hand. He denied having demanded any bribe from the complainant at the time of trap. He denied recovery of treated GC notes from him. He denied left hand wash and pant pocket wash to have been done in his presence and preparation of bottles Ex. P9 to Ex. P12. He disputed the FSL report and stated that sanction to prosecute was wrongly granted. He stated that he was IO in a case against complainant's son. Complainant had been putting pressure on him for showing favour to him which he had declined. Complainant is misusing his position as union leader of DTC worker's union. Annoyed with him for having opposed the bail of his son, he had threatened to falsely implicate him. He further stated that after being apprehended he was taken to SHO room on the ground floor where SHO/Inspector Netra Pal Singh made inquiries from the raiding party and directed him to change into civil dress. He went to PP GTB Hospital and changed into his civil dress, leaving the uniform at police post. Accused sought opportunity to lead defence evidence and examined five witnesses.
6.1 Harish Kumar (DW1), LDC from Record Room of Karkardooma Courts produced copies of status reports filed by accused opposing the bail application of complainant's son. Inspector Netra Pal Singh (DW2) was SHO, PS M.S. Park, on 7.5.2010. He deposed that on 7.5.2010 officials of PS ACB came to PS MS Park. State Vs. Pawan Singh Malik Page 6 of 29 7 RO/Inspector Dharamvir Singh told him that Pawan Singh Malik has been trapped on a complaint of Shiv Karan. Complainant and accused were brought to his room. Shiv Karan told the witness that there was no demand of money by ASI Pawan Singh Malik but he had handed over treated GC notes to him. No proceedings were conducted by officials of PS ACB in his presence. Accused went to PP GTB Hospital for changing his uniform. During this period Inspector Dharamvir singh (RO) and complainant remained seated in his room The ACB team left PS M.S. Park at about 5.15 PM taking the accused with them as he was supposed to be produced before DCPACB. The witness on being cross examined by Ld. Additional PP deposed that he has not made any DD entry regarding inquiry from Shiv Karan. He also deposed that he was not in a position to produce any documentary proof of his availability at PS MS Park at 5.15 PM of 7.5.2010. He did not communicate to any superior officer that Shiv Karan had told him that there was no demand of bribe by ASI Pawan Singh Malik. 6.2 Retired SI Badlu Singh (DW3) has deposed that he was working as a pairvi officer at PS MS Park on 7.5.2010. On that day he returned from the court at about 4.30 PM and was sitting with Reader to SHO, when accused came to the room to discuss some matter. In the meantime one person entered the room and shook hands with the accused. The said person tried to push his fist towards the pocket of the accused but accused resisted and pushed him away. In the State Vs. Pawan Singh Malik Page 7 of 29 8 meantime officials of PS ACB came and apprehended the accused and took him to the room of SHO, PS M.S. Park. Accused then went to PP GTB Hospital and returned after changing his dress. He was taken away by those persons. SHO briefed the entire staff at about 5.15 PM. On being cross examined by Ld. Additional PP, he deposed that he did not possess any documentary proof of his presence in the reader's room on 7.5.2010 at about 4.30 PM. He had not reported to any senior officer or to any court that accused has been falsely implicated in a corruption case.
6.3 HC Rishi Kumar ( DW4) proved DD No. 35A dated 7.5.2010 as Ex. PW4/A regarding briefing by SHO, PS MS Park, Inspector Netrapal Singh at 5.30 PM. HC Dhir Singh (DW5 ) proved DD No. 69B as Ex. PW5/A regarding entry having been made by SHO, PS Shahdra that one Ashwani S/o Shiv Karan R/o 1/3867, Bhagwanpur Khera, Delhi, was brought to the police station along with the stolen motor cycle. Father of Ashwani came to the police station and requested for release of his son, threatening that he had got apprehended one Inspector of PS MS Park and that if his request is not acceded to, he will make false allegation and get the Inspector implicated. On being cross examined, both the aforesaid witnesses deposed that they were not authors of DD entry and did not know as to who wrote the entry.
7. 1 Shri Sanjay Soni, Ld. Additional PP for the State has State Vs. Pawan Singh Malik Page 8 of 29 9 argued that the testimony of Shiv Karan (PW10) and panch witness Subhash Chand (PW13) proved the entire case of demand, acceptance and recovery of bribe. The witnesses made unequivocal statements which are corroborative of each other. Recovery of treated GC notes was also proved in the testimony of RO/Inspector Dharamvir Singh (PW11). Presence of Phenolphthalein powder on the left hand and on the pocket of trouser of accused further corroborated the prosecution version that treated GC notes were accepted by the accused and recovered from his possession. Formal witnesses have proved the sanctity of case property and no tampering with the same. Grant of sanction to prosecute the accused has also been proved. 7.2 Responding to the defence evidence, it is argued by Shri Soni that presence of Inspector Netra Pal (DW2), SHO PS MS Park in his room at the time of raid is not proved. The DD No. 35A Ex. PW4/A should have been put to Netra Pal Singh by the defence to establish that the DD was actually made by him. Similarly DD No. 69B ( Ex. PW5/A ) cannot be said to have been proved, as its author has not been examined.
8.1 Shri Arun Sharma and Shri D.K. Sharma, Ld. defence counsels have argued at length and submitted that it is a false case, wherein complainant implicated the IO of the case registered against his son, so that he would not investigate the case thoroughly. Complainant Shiv Karan (PW10) is a union leader of DTC workers, State Vs. Pawan Singh Malik Page 9 of 29 10 who misused his position as union leader and threatened the IO i.e. accused to help complainant's son. Since in his capacity as IO in FIR No. 88/10 u/s 379/411 IPC, accused did not oblige the complainant he has been falsely implicated in this case. The basic premise of complainant that bribe was demanded for having helped complainant's son in procuring his bail is false, as accused in both the status reports submitted by him before the trial court has strongly opposed the grant of bail. The other two reasons cited by complainant for demand of bribe i.e. promise to reduce the gravity of case and threat to declare his son as BC, are totally conjectural. It is also argued that complainant's son had been bailed out on 04.05.2010 and the complaint was made on 7.5.2010, there could have been no ground for demand of bribe on this count. IO and the RO did not verify the date of release of complainant's son on bail. It is next argued that the alleged time and place of negotiation of bribe has been differently stated by the complainant in his complaint and while appearing as witness in court. Phenolphthalein powder was readily available to the RO and was also carried in the raid box at the time of raid and, therefore, creation of false evidence of washes cannot be ruled out. Prosecution has with held from the case, persons who were present in the reader's room, where the alleged trap took place. No witness from PS M.S. Park has been cited, despite the claim of prosecution that they remained at PS M.S. Park from 5.00 PM to 10.45 PM. SHO, PS M.S. State Vs. Pawan Singh Malik Page 10 of 29 11 Park in whose room most of the proceedings were allegedly carried out has been with held by the prosecution, though examined by defence. His presence at PS M.S. Park at 5.30 PM is proved by way of documentary evidence. There is no explanation as to why his presence was withheld by prosecution. Challenging the testimony of panch witness Subhash Chand (PW13), it is argued that he was a stock witness who had been associated in various raids for about 15 to 20 times and he has given a totally parrot like statement in examination in chief. However, on being cross examined he contradicted the prosecution case on material aspects. He deposed that recovery, hand wash and pant wash proceedings etc. were conducted in the room of SHO.
8.2 It has also been argued by Ld. defence counsels that there is ambiguity in the prosecution case as regards the visibility of spot from where panch witness allegedly gave signal to the police party, from the place where raiding team was stationed. The site plan placed on record does not describe the location of staircase, the place where raiding party was stationed and the point from where signal was given by panch witness. Panch witness Subhash Chand ( PW13) in his cross examination has deposed the recovery to have been effected in the SHO's room, which is contradictory to the prosecution case of recovery having been effected at reader's room. Persons present in the reader's room have not been associated as witnesses. The manner of State Vs. Pawan Singh Malik Page 11 of 29 12 seizure of pant of accused has also not been sufficiently proved by the prosecution. Various witnesses have differently deposed about the time of leaving PS M.S. Park. Shri Sharma has relied upon the law laid down in Rakesh Kumar @ Babli Vs State of Haryana AIR 1987 SC 690, G.V. Nanjundiah Vs State AIR 1987 SC 2402, Rao Saheb Vs State of Maharastra 1994 Cr. Law Journal 3792, Gulam Mahmood A. Malek Vs State of Gujrat AIR 1980 SC 1558,Bal Kishan Syal Vs State of Punjab AIR 1987 SC 689.
9. I have heard the Ld. counsels and perused the evidence on record and documents proved by witnesses. Formal witnesses examined by the prosecution have proved sanctity of case property after being deposited at malkhana of PS Civil Lines. Biodata of accused and sanction for prosecution has also been proved. Lodging of present FIR and FIR No. 88/10, PS M.S. Park against Ashwani Karan has also been sufficiently proved. On the basis of arguments raised, following questions arise, for adjudication by this court.
(i) Whether there was demand of bribe by accused from the complainant prior to trap?
(ii) Whether accused demanded Rs. 4,000/ as bribe at the time of trap?
(iii) Whether treated GC notes were handed over by
complainant to accused?
(iv) Whether treated GC notes were recovered from the
pant pocket of accused?
State Vs. Pawan Singh Malik Page 12 of 29
13
I shall answer these questions one by one.
(i) Whether there was demand of bribe by accused from the
complainant prior to trap?
10.1 Complainant Shiv Karan (PW10) is ofcourse the sole
witness to the initial demand of bribe by the accused. He deposed that accused lodged a false case of motor cycle theft against his son Ashwani Karan. Accused used to demand Rs. 5,000/ as bribe stating that he would reduce the gravity of case and also that he had helped his son being released on bail. Accused also used to threaten him that in case the bribe is not paid, his son would be implicated in more cases and declared a BC. On the request of witness, accused had reduced the bribe amount and agreed to accept Rs. 4,000/. On being cross examined by Ld. defence counsel he deposed that he had not made any complaint to any senior police officer prior to the raid that his son had been falsely implicated. He had met SHO, PS M.S. Park on 14.4.2010. He did not remember the date when his son was bailed out in motor cycle theft case. Demand of bribe was initially made on 14.4.2010 itself. The amount had been negotiated to Rs. 4,000/, 4/5 days prior to 7.5.2010 at the barracks of PS Nand Nagri. 10.2 Ld. defence counsel has demonstrated that complaint Ex. PW10/A does not mention that the demand was initially made on 14.4.2010. It also does not mention that the amount was negotiated to Rs. 4,000/, 4/5 days prior to 07.05.2010. It has been pointed out by State Vs. Pawan Singh Malik Page 13 of 29 14 Ld. defence counsel that in complaint Ex. PW10/A, it is mentioned that the amount had been negotiated to Rs. 4,000/ 'today' i.e. on 07.05.2010 It is thus rightly argued that the witness has improved his initial version regarding demand of Rs. 5,000/ and also regarding the date when the amount was negotiated to Rs. 4,000/. A deeper study of complaint Ex. PW10/A reveals that complainant stated 'IO has been demanding money constantly. He has been saying that he has helped in grant of bail'. This part of the complaint is inconsistent to the testimony made in court that demand was initially made on 14.4.2010 itself, i.e. day next to arrest. The demand as indicated in complaint Ex. PW10/A 'for having helped in grant of bail' could have been made only after grant of bail. Bail in this case was granted on 4.5.2010. (The date has not been strictly proved but so stated by defence counsel in argument and it matches with the prosecution story.) Thus the occasion to demand bribe for having helped in grant of bail could not have arisen on any date prior to 4.5.2010. The date of negotiating the amount to Rs. 4,000/ has also been inconsistently deposed by the witness. In complaint Ex. PW10/A this date has been indicated as 'today' i.e. 7.5.2010, whereas on being cross examined by Ld. defence counsel PW10 stated this to have happened 4/5 days prior to 7.5.2010. If it was 4/5 days prior to 7.5.2010, it shall in any case prior to 4.5.2010 i.e. the date of grant of bail to complainant's son; even this would be inconsistent to complainant's case, as demand is State Vs. Pawan Singh Malik Page 14 of 29 15 stated to have been for having helped in grant of bail, which event happened on 04.05.2010.
10.3 Thus an element of doubt is introduced in the complainant's version regarding the purpose of demand of bride, the date of demand of bribe and the date of negotiation of bribe amount from Rs. 5,000/ to Rs. 4,000/.
(ii) Whether accused demanded Rs. 4,000/ as bribe at the time of trap?
11.1 To prove demand of bribe at the time of trap, prosecution has examined complainant Shiv Karan (PW10) and panch witness Subhash Chander (PW13) . Shiv Karan has deposed that on reaching the reader's room at PS M.S. Park, accused was found sitting in the room. On seeing the witness he immediately asked, 'if he had brought the money'. Subhash Chand (PW13) in his examination in chief deposed that he and complainant climbed the staircase, reached first floor of the building and entered in a room which was on left side of staircase. He maintained a short distance from the complainant, so that he could hear the conversation between the complainant and the accused. About 2/3 minutes after entering the aforesaid room, he came out and gave predetermined signal. RO and members of the raid party immediately came to spot. On inquiry by the RO, he told him that accused had demanded and accepted bribe of Rs. 4,000/. A court question was asked whether demand and acceptance of bribe State Vs. Pawan Singh Malik Page 15 of 29 16 was only told by him to the RO or if the same had actually happened before him. Witness gave an answer that accused had demanded the bribe and handed over treated GC notes and only then he had come out of the room and given the predetermined signal. On being cross examined by Ld. defence he deposed that there was no conversation between him and the accused and the conversation was only between accused and the complainant. He also admitted that accused did not object to his presence. He denied the suggestion that there was no demand of bribe by the accused. He has also admitted the presence of 2/3 other officials in the reader's room.
11.2 Defence has challenged the testimony of panch witness on the ground that he did not depose regarding the demand in the same words as the complainant has deposed. The panch witness deposed about the demand only on a court question having been put to him. Even answering the court question he did not describe any details regarding the manner of demand or the conversation at the time of demand.
11.3 It is correct that the panch witness has not described the exact conversation between complainant and the accused. He has merely deposed that demand was made. Failure of panch witness, who had been strictly instructed to remain close to the complainant and hear the conversation between accused & complainant to depose the exact conversation raises some doubt about his testimony regarding demand State Vs. Pawan Singh Malik Page 16 of 29 17 of bribe this lapse of panch witness is more glaring in the facts of present circumstances when his testimony in examination in chief as almost a replica of his statement u/sec.161 Cr.P.C.. A witness who has described the entire incident in a parrot like manner, is silent on the most crucial aspect of the case; especially when he has deposed that he was just a few steps behind the complainant and has heard the conversation between the two. This slip is also significant in the present case because the panch witness as a veteran of 1520 raids. Thus, demand of bribe to, as deposed by him is not totally corroborative to the complainant's version. In similar circumstances, the Hon'ble Supreme Court in Bal Kishan Syal Vs State of Punjab (Supra) gave benefit of doubt to the accused, when one of the outsider witnesses did not speak as to what transpired in the conversation between the bribe giver and the accused. The other witness too was not very clear as to what talk preceded the passing of currency notes.
11.4 The Ld. defence counsels have also challenged the trap on the ground that presence of a stranger i.e. the panch witness was not even questioned by the accused. Relying upon the law laid down in Rao Saheb Vs State of Maharastra (Supra), it is argued that accused would not have accepted bribe amount in presence of a stranger. The very fact that accused did not enquire about the panch witness, who was present, demonstrates his behaviour to be consistent with his innocence. This argument of Ld. defence counsel cannot be lightly State Vs. Pawan Singh Malik Page 17 of 29 18 brushed aside as there is no evidence that complainant explained the presence of a stranger to the accused, at the time of handing over of bribe. Similar to the fact situation of present case, in Gulam Mahmood A. Malek Vs State (Supra) Hon'ble Supreme Court gave benefit of doubt to the accused when persons present in the room where bribe had been demanded and paid, were not examined by the prosecution. 11.5 It can thus be concluded that there is a shadow of doubt on the evidence of demand of bribe at the time of trap.
(iii) Whether the treated GC notes were handed over by complainant to accused?
12. To prove acceptance of bribe, prosecution has relied upon statement of Shiv Karan (PW10) and Subhash Chand (PW10). Both the witnesses have deposed that on demand by the accused, complainant handed over treated GC notes to him which he accepted by his left hand and kept the same in left pocket of pant of his uniform. Both the witnesses have thus corroborated each other as regards the acceptance of bribe by the accused.
(iv) Whether the treated GC notes were recovered from the pant pocket of accused?
13.1 The evidence of recovery of treated GC notes from the possession of accused has actually created such a great doubt in the mind of court that corroborative testimony of complainant and panch witness as regards acceptance of bribe at the time of trap, has also lost its sheen. The prosecution armour have been exposed, by the State Vs. Pawan Singh Malik Page 18 of 29 19 defence to such an extent that the evidence of acceptance and in fact the entire prosecution case becomes doubtful. Shiv Karan (PW10) has deposed that RO took the search of the accused and recovered GC notes from the left pocket of pant of his uniform. He again stated that on instructions of RO possibly panch witness took the search of the accused and recovered treated GC notes from left pocket of his uniform pant. He has further deposed that left hand of the accused and his pant pocket were washed and washes were transferred in small bottles. Pant of accused was got removed and seized. On being cross examined, he deposed that seizure memo Ex. PW10/C of currency notes was prepared before the hand wash and the same was prepared in the SHO room on the ground floor. He further deposed that on instructions of accused, a constable of PS M.S. Park brought his spare trouser which he changed. He did not know where the said trouser was kept or brought from. If the testimony of this witness is propagated and taken to its logical end; it would suggest that on effecting recovery of treated GC notes from the pocket of accused, the entire team shifted to ground floor in the SHO's room where seizure memo of GC notes Ex. PW10/C was prepared. Meaning thereby, that all subsequent proceeding of hand wash, pocket wash, their sealing and seizure was done in SHO's room. He also seems to indicate that pant pocket wash was taken prior to pant being removed from the person of accused.
State Vs. Pawan Singh Malik Page 19 of 29 20 13.2 Subhash Chand (PW13) has deposed that on arrival of raiding team, he took the search of accused on instructions from the RO and recovered treated GC notes from left pocket of uniform pant of accused. The GC notes were seized. Left hand wash of accused was taken in two bottles which were marked. Accused was asked to remove his uniform and change into civil clothes. He wore civil clothes, which were lying in the police station itself. The left pocket wash of pant was then taken and transferred to bottles. Pocket of pant of accused was dried and thereafter pant was seized. On being cross examined by ld. defence counsel, he deposed that after apprehending the accused he was brought to the room of SHO where all the proceedings were conducted, which included recovery, hand wash and pant pocket wash etc. SHO Netra Pal, PS M.S. Park was present in his room.
13.3 The import of testimony of this witness is, that, even the recovery of GC notes seem to have taken place in the ground floor room of SHO, PS M.S. Park. He has deposed that on being apprehended accused was brought to the room of SHO. Testimony of this witness when read with the testimony of Shiv Karan (PW10) indicates contradiction in place of recovery of treated GC notes. This witness has taken the proceeding which happened in the room of SHO, a step behind, to what was deposed by Shiv Karan (PW10). 13.4 Raid Officer ACP Dharamvir Singh (PW11) has deposed State Vs. Pawan Singh Malik Page 20 of 29 21 that currency notes were seized in the room of accused but seizure memo was prepared in the room of SHO. They remained in the room of reader to SHO for about 5 to 10 minutes and left the same at 5.15 PM for SHO's room. SHO was not present in his room till 7.40 PM. 13.5 Contrary to the evidence of RO/ACP Dharamvir Singh (PW11) and Shiv Kumar (PW10) is the testimony of an other police official, though not cited by the prosecution. Inspector Netra Pal Singh, the then SHO PS M.S. Park (DW2) has caused a serious doubt on the prosecution version, regarding the proceeding in his room, after the raid. Though RO/ACP Dharamvir Singh (PW11) and complainant Shiv Karan do not even acknowledge his presence at PS M.S. Park; however, panch witness Subhash Chand (PW13) has deposed that SHO Netra Pal Singh was present in his room. Documentary evidence regarding his presence at PS M.S. Park could not be produced by the witness in his own testimony but was proved in the testimony of HC Rishi Kumar ( DW4) who brought the DD register containing DD entry No. 35A dated 7.5.2010, proved as Ex. DW4/A. A study of Ex. DW4/A reveals the same to be in the hand writing of SHO Netra Pal Singh, who had conducted a staff briefing at 5.30 PM. Ld. Additional PP disputed the entry to be in the hand writing of SHO. But comparison of signatures of Netra Pal Singh made before the court in his testimony as DW2 and his name in column No. 1 of DD No. 35 indicates uncanny similarity between the hand writings, leading this State Vs. Pawan Singh Malik Page 21 of 29 22 court to the opinion that DD No. 35A is in the hand writing of DW2 himself. Thus the inescapable conclusion is that SHO Netra Pal Singh was present at PS M.S. Park at 5.30 PM. The testimony of complainant Shiv Karan ( PW10) and RO Dharamvir Singh (PW11) lose their sanctity when they are established to be deliberately misstating about the absence of SHO from his room or from the police station, during or after the trap. This also causes a serious doubt on the proceedings allegedly conducted in his room, after the accused had been apprehended. Thus the entire prosecution case as regards recovery of GC notes, their seizure, hand wash of accused and its seizure, pant pocket wash of accused and its seizure are pushed to the margins of doubtful proceedings. Had the proceedings been conducted in the room of SHO as deposed by complainant and RO, till 7.40 PM; there was no reason not to have associated him in the proceedings as witness as his presence at PS M.S. Park at 5.30 PM is established Alternatively, if the RO and his team had left PS M.S. Park after apprehending accused at about 5.15 or 5.30 PM, then the prosecution case of having conducted the proceedings at PS M.S. Park is proved false. In both situation the proceedings commencing from recovery of GC notes onwards become doubtful.
13.6 Prosecution has also not been able to prove beyond reasonable doubt as regards the time, place and manner of taking pocket wash of the trouser of accused and its seizure. Complainant State Vs. Pawan Singh Malik Page 22 of 29 23 Shiv Karan (PW10) has deposed that on instructions of accused, a constable of PS M.S. Park had brought the spare trouser. Panch witness Subhash Chander (PW13) has deposed that accused went to some room and changed into civil clothes. Inspector Netra Pal (DW2) has deposed that accused went to PP GTB Hospital where he used to sit for changing the uniform. Complainant Shiv Karan (PW10) also seems to indicate that pant pocket was taken prior to pant being removed from the person of accused. RO/Inspector Dharamvir Singh (PW11) has choosen not to delineate about the place and manner of change of trouser by the accused. This gap in the prosecution case gives credence to the defence version that pant of accused was not seized immediately after the alleged recovery. If the seizure was done after arriving at PS ACB, then the presence of Phenolphthalein powder in its pocket wash loses its significance. If the pant was seized in the manner deposed by Inspector Netra Pal Singh ( DW2), then also it loses the significance of pocket wash, as Netra Pal Singh has deposed that accused was permitted to go alone to his room at PP GTB Hospital to change into civil clothes.
13.7 From the evidence as notice above, this court is of the firm opinion that prosecution case as regards the recovery of treated GC notes from the possession of the accused and subsequent proceedings pertaining to washes and seizures are not proved beyond reasonable doubt.
State Vs. Pawan Singh Malik Page 23 of 29 24 14.1 The question that now arises for consideration is that why this court should not believe the oral testimony of complainant Shiv Karan (PW10) and panch witness Subhash Chand (PW13), as regards the demand and acceptance of bribe at the time of trap. As per complainant's version bribe was first demanded on 14.4.2010 and not paid till 7.5.2010. All along his son remained in custody and accused had been opposing the bail, by way of filing status reports. Not having paid the bribe amount, when son of complainant was in custody and accused was demanding bribe, it does not appeal to common sense that bribe would be paid after the immediate cause for demanding bribe has ceased to exist. In Raj Kishore Vs State 2013 Vol. 4 LCR 262, the Hon'ble Delhi High court in similar circumstances disbelieved the complainant's version. In cited case demand of bribe was for providing electricity connection. The Hon'ble High Court held that once electricity connection was installed in the house, there was no occasion for the accused to have demanded money.
14.2 Complainant's testimony in cross examination, exposes the falsehood of his case, when he deposed that demand of bribe was initially made by indication on 14.4.2010, itself. That means, the day next to arrest of complainant's son. The main purpose of demand has been stated by him to be for having helped in grant of bail. On 14.04.2010, when the complainant's son was still in custody, there could State Vs. Pawan Singh Malik Page 24 of 29 25 be no occasion to demand bribe for having helped in grant of bail. Complainant seems to be shifting his stand from time to time, as it suits him.
14.3 Complainant who is a Union leader is apparently smart enough to have realised that allegation of demand on this count may not succeed. Therefore, he has gone a step further by making allegations which are totally conjectural and not measurable. He alleged that accused had also demanded bribe for diluting the gravity of case and under a threat of getting his son declared as bad character (BC). As noticed earlier, the complainant's son having been arrested with the stolen motor cycle in the presence of owner of motor cycle itself, there could be no possibility of diluting the gravity of case. Similarly FIR of motor cycle theft case being the first FIR against complainant's son, it was too far fetched to have caused actual threat to the complainant that his son could be got declared a BC. I find merits in the argument of defence counsel that complainant being a union leader of DTC Workers Union was misusing this position and asking favour from the accused who was IO in his son's case. Having opposed the bail application by the status reports Ex. DW1/A and Ex. DW/1B, accused earned the wrath of complainant, who filed a false complaint against him. This argument of Ld. defence counsel is fortified by similar conduct of complainant in subsequent FIR against complainant's son lodged at PS Shahdra. SHO, PS Shahdra recorded State Vs. Pawan Singh Malik Page 25 of 29 26 DD No. 69B (Ex. PW5/A) mentioning that father of accused Ashwani Karan came to the police station and sought favour, threatening that he had got implicated IO of the previous case against his son and that he can make a false allegation against the SHO and IO of said case also. I am thus of the considered opinion that complainant Shiv Karan (PW10) is not a person of unimpeachable credibility. His testimony cannot be accepted as gospel truth.
14.4 The question that needs to be addressed is as to why the panch witness, who was not an interested witness, would tow the prosecution line. As discussed in para 11.1 above, the panch witness (PW13) has broadly supported the prosecution case as regards demand & acceptance of bribe. He has ofcourse missed the finer aspects of demand at the time of trap as discussed in para 3 above. It is also noticed that this witness has departed from the prosecution story, as regards presence of SHO, PSM.S.Park, in his room after the trap. This witness, who has admitted to have been associated in 1520 raids and has made a parrot like statement in his examination in chief, can be labeled as a witness, whose heart & soul was with the prosecution. He may not be a stock witness in the true sense of the word, but his examination in chief does indicate that he made statement not on the basis of his memory of the sequence of events but on the basis of some notice or may be his statement u/sec.161 Cr.P.C. His testimony does not inspire the confidence of any independent witness and, therefore, State Vs. Pawan Singh Malik Page 26 of 29 27 can not be blindly accepted to be true.
14.5 Another major lacuna in the prosecution case, which gose to the very root of trap is the fact that the spot from where panch witness allegedly gave signal to the raiding party and the spot where Raid Officer was located, have not been proved to be in direct line of sight. Various prosecution witnesses were crossexamined by ld. defence counsel as regards the shape of staircase, number of turns in the same and the position of door of the room, from where the signal was given by panch witness. No definite position of the door or the stairs could be ascertained. Site plan drawn by the IO Ex.PW10/DA is an absolute wasteful exercise. It seems to have been prepared only to meet the requirements of filing a site plan, without serving any purpose. The position or existence of stair case or the position of door of room has been forgotten by the IO to be shown in the site plan. In the absence of any satisfactory evidence as regards the visibility of door of room, from the position occupied by raiding team; it is not possible for this court to record a finding that raiding team rushed to the room on getting signal from the panch witness. The testimony of panch witness also draws a flak on this count, as part of his deposition regarding giving the signal to raiding officer becomes doubtful.
15.1 When driven against the wall, Ld. Addl. PP argued that had the accused not demanded the bribe and if the same was pushed into his hand by the complainant; he could have thrown away the same and State Vs. Pawan Singh Malik Page 27 of 29 28 there is no explanation as to why he kept the same in the pocket of his trouser. The argument is devoid of merits, as it presupposes that treated GC notes weer accepted by the accused and kept in his pocket. As discussed in foregoing para 13,this court has disbelieved the testimony of complainant and the panch witness, who had described this part of incident. This court has also disbelieved the prosecution case as regards the pocket of accused's trouser getting traces of phenolphthalein powder by the treated GC notes. Infact, the prosecution story as regards the seizure of trouser of accused has not been accepted to be truly deposed.
15.2 It has further been argued by Sh.Soni, ld. Addl. PP that the DD entries Ex.DW4/A and Ex.DW5/A have not been proved by their authors. I do not subscribe to this argument, as well. Records prepared in ordinary course of business have the presumption of correctness unless proved otherwise. Challenge by the prosecution to the DD entries proved by defence, does not reflect well upon the State, as it is an attempt to doubt the record maintained by its own officers. It has also been argued by Sh.Soni that there is no explanation as to why DW/2 Inspector Netrapal Singh, SHO, PS M.S.Park did not inform senior officers of Police, that his subordinate had been falsely implicated in a corruption case. This argument also needs to be rejected. Firstly, for the reasons that prosecution has to prove its case beyond reasonable doubt, whereas, defence has no such onus and is only required to create a State Vs. Pawan Singh Malik Page 28 of 29 29 bonafid doubt as regards the prosecution version. Secondly, reaction of an individual in particular set of circumstances may not always be as per the rule book or as would pass the test of a very prudent man. 15.3 The testimony of SI Badlu (DW3), who claims to be present with the accused at the time of trap can not be accepted as there is no documentary or oral evidence to corroborate his presence at the time of trap in the room, where accused was present. 16 For the reasons stated, I am of the considered opinion that prosecution case suffers from major lacunae and it has failed to prove beyond reasonable doubt that accused had demanded or accepted bribe from the complainant. Accused, thus, deserves benefit of doubt. Accused is, therefore, acquitted of all the charges for offence punishable u/sec.7 & 13 (2) of the PC Act and offence u/sec.13 (i) (d) of the PC Act.
17. However, in terms of sec.437 (A) Cr.P.C., accused is directed to furnish a bail bond for the amount of Rs.50,000/ with one surety in the like amount, to appear before the appellate court, as and when such notice is issued, in respect of any appeal, which may be filed against this judgment.
File be consigned to record room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 25.08.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
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