Delhi District Court
State vs . Sunil Kumar Page 1 Of 31 on 10 July, 2014
1
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE
Versus
Sunil Kumar
S/o Gajraz Singh
R/o 274, Vivekanad Nagar,
Ghaziabad, UP.
Corruption Case No. : 12/2013
FIR No. : 11/2012
Case Identification No.: 02401R0258262013
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988.
CHALLAN INSTITUTED ON : 16.04.2013
JUDGMENT RESERVED ON : 08.07.2014
JUDGMENT PRONOUNCED ON : 10.07.2014
JUDGMENT
1.1 Accused Sunil Kumar S/o Gajraj Singh working as Constable in Delhi Police has been accused of demanding and State Vs. Sunil Kumar Page 1 of 31 2 accepting bribe, by abusing his position as public servant. 1.2 As per the case of the prosecution Sunil was posted as Beat Constable in the area of Aya Nagar, PS Fatehpur Beri. Complainant Aas Mohd. was constructing a house in the area of Aya Nagar and accused demanded Rs. 20,000/ from him as bribe for permitting him to carry on with the construction. On 19.04.2012, accused had come to his under construction house and demanded the aforesaid amount. However, he agreed to accept Rs. 8,000/ on the pleading of complainant. He had repeated the demand on phone and had directed complainant, to keep the amount ready by about 6.00 PM. 1.3 Complainant had then approached PSACB and made a written complaint. On his complaint, raiding team was constituted which associated a panch witness and conducted a raid in the presence of complainant, his friend Bhagwan Singh and panch witness. Accused was apprehended while demanding and accepting an amount of Rs. 5,000/ towards bribe. Raid officer seized the currency notes. On their recovery, both the hands of accused were washed with Sodium Carbonate solution, which turned pink. Exhibits were got examined at FSL. Call Detail Records of the accused and the complainant were seized. Sanction for prosecuting the accused was sought.
State Vs. Sunil Kumar Page 2 of 31 3 1.4 After conclusion of investigation, challan was filed in the court on 16.04.2013. Cognizance of the offence was taken. Accused was summoned to face trial. On his appearance, provisions of sec.207 Cr.P.C. were complied with.
2. After hearing the accused, vide order dated 05.06.2013 charge for offences punishable u/sec.7 & 13 (i) (d) r/w/sec.13 (2) of the Prevention of Corruption Act ( hereinafter called the PC Act ) was ordered to be framed. Accordingly charge was framed against the accused to which he pleaded not guilty and claimed trial. 3.1 Prosecution, in support of its case, examined 16 witnesses. HC Dina Mani (PW2) was the Duty Officer. He proved lodging of FIR Ex. PW2/A. Ct. Jai Krishnan (PW3) had carried rukka from the spot to PSACB and handed over the same to Duty Officer.
3.2 HC Jatinder (PW1) had deposited the exhibits at FSL on 3.5.2012. Ct. Krishan Kumar (PW4) had collected the FSL report and remnants from FSL on 20.06.2012. Both the witnesses have deposed not having tampered with the case property. HC Chander Singh (PW6) was Malkhana Incharge at PS Civil Line. He has also proved safe custody of exhibits which were deposited with him.
State Vs. Sunil Kumar Page 3 of 31 4 3.3 Ct. Parveen (PW8) has proved the posting order of accused Sunil as Constable in South District and his further posting at PS Fatehpur Beri, vide order Ex. PW8/B. Ct. Dilshad Khan (PW5) of PS Fatehpur Beri has proved the DD entry No. 45B exhibited as Ex. PW5/A, vide which accused Constable Sunil and HC Surender had left the PS for evening patrol duty; towards Sati Mandir, on 20.04.2012. HC Kuldeep (PW11) has proved duty roaster of PS Fatehpur Beri as Ex. PW11/A, vide which accused was deputed on Beat duty on 20.4.2012. SI K.L. Meena (PW13) has proved the authorisation of Inspectors PS ACB to investigate FIR for offences punishable under PC Act. DCP Ms. Chhaya Sharma (PW10) proved the sanction for prosecution of the accused.
3.4 Complainant Aas Mohd. (PW12) was cited and examined to prove his complaint Ex. PW9/A. He deposed about participating in the preraid proceedings and the raid. He identified the case property. Bhagwan Singh (PW14) is a friend of the complainant. He had accompanied the complaint to PSACB and had scribed the complaint on the asking of complainant. He identified the complaint Ex. PW9/A to be in his hand writing. He was also present in the trap proceedings. 3.5 Satish Kumar (PW9 ) was associated by the Raid Officer as State Vs. Sunil Kumar Page 4 of 31 5 panch witness. He proved the entire pretrap proceeding and the trap wherein accused demanded and accepted bribe. Sandeep Kumar (PW7) proved the duty roaster of panch witness duty for 20.04.2012. 3.6 Inspector Megh Raj( PW15) was the Raid officer. He proved the trap proceedings and recovery of treated GC notes from the possession of accused. Inspector Rahul (PW16) was the Investigating Officer. He has proved the investigation at the spot. After the arrest of accused, case property and trap reports were handed over to him. He also collected call detail record of the telephonic conversation between the complainant and the accused. FSL report was collected by him and challan was filed.
4. Incriminating evidence was put to the accused and his statement u/sec.313 Cr.P.C. was recorded. He denied demand of bribe but admitted his posting as Constable at PS Fatehpur Beri. He denied demand & acceptance of treated GC notes at the time of trap. He denied the same to have been recovered from his right hand. He stated that he had been falsely implicated as he had directed complainant to stop unauthorised construction and to remove encroachment from road. Bhagwan Singh, friend of complainant had some contacts at PS ACB and he misused his contacts to implicate him at the instance of complainant. Though, accused sought opportunity to lead evidence in State Vs. Sunil Kumar Page 5 of 31 6 defence; but he did not avail the opportunity offered and defence evidence was closed by his statement dated 24.04.2014
5. Sh. Sanjay Soni, Ld. Addl. PP for the State has argued that Ct. Jai Krishnana (PW3) deposed in examination in chief that accused was caught red handed from the spot. The witness has not been cross examined by Ld. defence counsel and his testimony shall, therefore, be read as uncontroverted. Shri Soni has further referred to the statement of Satish Kumar, Panch witness (PW9) who has fully supported the case of prosecution. Referring to the testimony of complainant Aas Mohd. (PW12) and his friend Bhagwan Singh (PW14), it is argued by Shri Soni, that though both these witnesses have faltered in their testimonies before the court viz a viz their statements recorded by the IO; however, the prosecution case is materially supported by them. The demand of bribe is proved by both the witnesses in as much as contents of complaint Ex. PW9/A are not disputed by them. Complainant Aas Mohd. (PW12) has deposed having handed over 10 GC notes in the denomination of Rs. 500/ each to the Raid Officer for the pretrap proceeding. The serial numbers of those GC notes have matched with the recovered GC notes. He has also identified his signatures on the preraid report, post raid report and memos prepared during the raid. He has also admitted his presence with the raiding team and also presence of panch witness at the time of raid. It State Vs. Sunil Kumar Page 6 of 31 7 is, therefore, argued that even if complainant Aas Mohd. (PW12) is not fully supporting the case of prosecution, he supports the prosecution case on material aspect, which have been proved beyond doubt in the testimony of panch witness Satish Kumar (PW9). It is further argued that raid reports which are record of proceedings, prepared simultaneous to the raid, are admissible in evidence and is sufficient evidence to prove the guilt of the accused. 6.1 Sh. Yogesh Verma, Ld. defence counsel has strongly contested the case of the prosecution. It is argued that the preraid report Ex. PW9/B cannot be read in evidence as the same was not prepared at the time indicated therein. It is argued that the same is typed document which has been fabricated by the RO and spaces meant for time were left blank and subsequently filled in, to create evidence of continuity of the proceedings. It is next argued that DD entries No. 28, 30 and 31 contain overwritings as regards time and DD numbers, which have been manipulated by the IO. It is next contended that the testimony of complainant Aas Mohd. (PW12) does not indict the accused. The witness has denied material piece of prosecution case regarding demand and acceptance of bribe, through him. Witness has deposed contrary to the prosecution case and testified that bribe was demanded from his mason and the treated GC notes were also handed over by the mason. The said mason has not been State Vs. Sunil Kumar Page 7 of 31 8 cited or examined by prosecution as a witness. There is thus no evidence of demand or acceptance of bribe. It is next argued that, as per complainant Aas Mohd. demand was made by the accused by way of telephonic call and the call details record have not been proved by a witness from mobile service provider. There is no certificate u/s 65B of Indian Evidence Act on record to verify the correctness of call details records. Referring to the testimony of Bhagwan Singh ( PW14) it is argued that the witness was introduced to the record prepared by the IO when complainant had left the proceedings. It is next argued that the witness has not deposed about the demand and acceptance of bribe by accused Sunil. He has rather referred to one Ct. Sandeep. As regards the testimony of panch witness Satish Kumar (PW9), it is argued that the witness is silent about the presence of scribe Bhagwan Singh. He claims to have entered the room of Raid Officer after preraid proceedings had been concluded. The preraid report proved by this witness was actually not prepared before him, as he has not able to state that the same was type written. The witness has deposed the preraid report to have been prepared in handwriting. 6.2 It is next argued by Shri Verma, that neither the complainant nor his friend who had accompanied him, have proved the case of the prosecution. The testimony of panch witness, who is a government official, apparently under the influence of IO and RO State Vs. Sunil Kumar Page 8 of 31 9 cannot be blindly trusted to record a finding of conviction. There are material inconsistencies in the statements of complainant and panch witness, as regards demand and acceptance of bribe. 6.3 Sh.Yogesh Verma, ld. counsel for the accused has relied upon the law laid down in Hari Singh Yadav Vs. State reported as Crl. A. No.464/2004 decided on 18.02.2014, M.P.Singh Vs. State reported as Cr. A. No.81/2008 decided on 23.01.2014, B.Jayaraj Vs. State of Andhra Pradesh reported as 2014 STPL (WEB) 214 SC, Raj Kishore Vs. State reported as Criminal Appeal no.33/2003 decided on 06.05.2013, Rakesh Kapoor Vs. State of Himachal Pradesh reported as 2013 (1) Crimes 92 (SC) & Devesh Kumar Vs. State reported as 2010 (1) JCC 762. 7.1 I have heard the Ld. counsels. Grant of sanction for prosecuting the accused has been proved by DCP Ms. Chhaya Sharma (PW10). Competence of Ms. Chhaya Sharma (DCP) to remove the accused from service has not been disputed. There is no cross examination of this witness that she was not the competent authority to grant sanction. I, therefore, hold that there was no error in taking cognizance of the offence against the accused.
7.2 Sanctity of exhibits sent to FSL for detecting the presence of phenolphthalein powder is proved by HC Malkhana Incharge, PS Civil State Vs. Sunil Kumar Page 9 of 31 10 Line, HC Chander Singh (PW6), HC Jatinder (PW1) and Ct. Krishan Kumar (PW4). HC Jatinder (PW1) and Ct. Krishan Kumar (PW4) have deposed that case property was not tampered with so far as it remained under their control. HC Chander Singh (PW6) has proved the malkhana register entry to show that the exhibits remained in the malkhana, except when the same were sent to FSL, Rohini on 03.05.2012 through HC Jatinder (PW1). There is thus nothing to indicate that case property was tampered with.
7.3 On the basis of evidence led by parties and the arguments raised, following questions arise which need to be answered by this court.
(i) Whether there was initial demand of bribe of Rs. 20,000/, subsequently reduced to Rs. 8,000/ by accused Sunil, from the complainant Aas Mohd. for permitting him to raise construction of his house?
(ii) Whether accused demanded Rs. 8,000/ from the complainant at the time of trap on 20.04.2010?
(iii) Whether accused accepted Rs. 5,000/ from the complainant on 20.04.2010 in pursuance of his demand of Rs. 8,000/?
(iv) Whether the treated GC notes of Rs. 5,000/ were recovered from the possession of the accused.
I shall answer these questions one by one.
(i) Whether there was initial demand of bribe of Rs.
20,000/, subsequently reduced to Rs. 8,000/ by accused Sunil, from the complainant Aas Mohd. for permitting State Vs. Sunil Kumar Page 10 of 31 11 him to raise construction of his house?
8.1 To prove demand of bribe by the accused, prior to day of trap, prosecution has examined two witnesses namely Aas Mohd. (PW12) and Bhagwan Singh (PW14). Prosecution case as propagated in the final investigation report suggests that accused Sunil Kumar met the complainant Aas Mohd. at the latter's house on 19.04.2010 and demanded Rs. 20,000/ as bribe, for permitting him to carry on construction of his house. The amount was negotiated and settled at Rs. 8,000/. This fact was discussed by Aas Mohd. with his friend Bhagwan Singh.
8.2 Aas Mohd., when examined as witness in the court, as PW12 did not depose in the same terms as stated by him during investigation. He has deposed on oath in the court that on 19.04.2010, 4/5 officials came at his house and demanded Rs. 7,000/ to Rs. 8,000/ as bribe for allowing him to carry out with the construction. In the same breath he again said, that aforesaid 4/5 police officials had demanded the bribe amount from his mason and he was not present at that time. He told this fact to his friend Bhagwan Singh and they went to PSACB on the next day and lodged complaint Ex. PW9/A which was signed by him. He has further deposed about the preraid proceeding having been carried out at PSACB and also the raid wherein accused Sunil was apprehended at the spot and other police State Vs. Sunil Kumar Page 11 of 31 12 officials accompanying him had escaped. The witness was declared hostile and cross examined by Ld. chief prosecutor but did not revert to his statement made before the IO. There was no cross examination of the witness by the ld. defence counsel.
8.3 Bhagwan Singh (PW14) has deposed that his friend Aas Mohd. told him about demand of Rs. 40,000/ by police officials, who was carrying out construction of his house. He had then volunteered to accompany Aas Mohd. to the site of construction, where he spoke to Beat Constable Sandeep but could not convince him for not demanding bribe. He had advised Aas Mohd to go to PSACB and they both reached PSACB on 20.04.2012 at about 1.00 PM where he wrote complaint Ex. PW9/A on behalf of the complainant Aas Mohd.. The complaint is in his handwriting. This witness was also declared hostile and cross examined by the Ld. Chief Prosecutor. He also did not tow the prosecution line. This witness was also not cross examined by the ld. defence counsel.
8.4 One common thread in the depositions of both the aforesaid witnesses is the sanctity of contents of complaint Ex. PW9/A. Aas Mohd. ( PW12) has deposed that he lodged complaint Ex. PW9/A at PS ACB. He identified the complaint on the basis of his signatures at point A on Ex. PW9/A. Bhagwan Singh (PW14) has also deposed that State Vs. Sunil Kumar Page 12 of 31 13 on 20.4.2010 both of them went to PS ACB, where he wrote complaint on behalf of the complainant in his hand writing. He also identified the complaint. The court is thus faced with a situation where both the witnesses who have authored complaint Ex. PW9/A are not deposing in the same terms as the contents of the complaint, but have both identified complaint Ex. PW9/A to have been submitted by them at PS ACB. Aas Mohd. has identified the same on the basis of his signatures and Bhagwan Singh has identified the same on the basis of his hand writing. As the old adage goes, ' Men may tell a lie, but documents do not'. Both the witnesses who identified the complaint Ex. PW9/A to have submitted by them cannot wriggle out of the contents of the same. A study of complaint Ex. PW9/A clearly and unambiguously narrates demand of bribe by accused Sunil from complainant Aas Mohd. on 19.04.2012 for permitting him to raise construction of his house. It is also stated in the complaint that the amount initially demanded was Rs. 20,000/, which negotiated at Rs. 8,000/.
9. For the aforesaid reasons, I reject the oral testimonies of Aas Mohd. (PW9) and Bhagwan Singh (PW14), as regards the demand and acceptance of bribe on 19.04.2012 and accept the contents of complaint Ex. PW9/A admitted by both of them to be correct. There is thus sufficient evidence to hold beyond doubt that accused had demanded bribe of Rs.8,000/ from Aas Mohd. on 19.04.2012 for State Vs. Sunil Kumar Page 13 of 31 14 permitting him to raise construction of his house.
(ii) Whether accused demanded Rs. 8,000/ from the complainant at the time of trap on 20.04.2010?
10.1 To prove the demand of bribe at the time of trap, prosecution has relied upon the depositions of complainant Aas Mohd. (PW12), his friend Bhagwan Singh (PW14) & panch witness Satish Kumar (PW9). Aas Mohd. (PW12) has made statement on oath, which is inconsistent and contrary to statement made during investigation. He has deposed that on reaching EBlock, Aaya Nagar along with the raiding team, he made a phone call from his mobile phone on the mobile phone number given to him by his mason. The person, at the other end of the phone, who was a police official, agreed to come to his under construction house for collecting the bribe. He has then deposed that he handed over the treated GC notes to his mason Raju to be handed over to the person, who had demanded the bribe. On being crossexamined by Chief Prosecutor, he did not support the previous statement made by him to IO. Bhagwan Singh (PW14), who had accompanied the complainant to PSACB and subsequently for the raid, has deposed that on reaching the spot, Raid Officer asked complainant to make a phone call to the Beat Constables, who were demanding bribe. On speaking to said Police official, Aas Mohd informed the Raid Officer that he would arrive at the construction site to collect the demanded bribe. After about 510 minutes, accused Sunil, one beat constable Sandeep and two other State Vs. Sunil Kumar Page 14 of 31 15 constables arrived. Complainant, then, told accused Sunil, as well as other police officials accompanying him that he could arrange only Rs. 5,000/. On being crossexamined by Ld. Chief PP, he did not supplement his statement any further.
10.2 Panch Witness Satish Kumar (PW9) has deposed that at the time of trap, while walking towards the house of complainant; complainant spoke to accused on phone and asked him to reach his house in the context of bribe, which he had demanded. Within 5 minutes, accused arrived and asked the complainant if he had brought the money. Complainant answered in affirmative and handed over treated GC notes in the sum of Rs. 5,000/ to the accused. Accused counted the money and said that the demand was for Rs.8,000/ and balance Rs.3,000/ should be paid within 23 days. He also directed the accused to start the construction only after the payment of balance amount of Rs. 3,000/. The witness was crossexamined by ld. defence counsel but could not dislodge the witness from statement made by him in examination in chief. Witness reiterated that accused was alone and that there was no other Constable or Head constable with him. 10.3 From the testimony of aforesaid 3 witnesses, it can be safely gathered that complainant on reaching the spot along with the raiding team made a phone call to the accused asking him to reach the State Vs. Sunil Kumar Page 15 of 31 16 construction site for collecting bribe. Bhagwan Singh (PW14) & Satish Kumar (PW9) have both specifically so deposed. Aas Mohd. accepts having made a phone call to the person, who had previously demanded bribe asking him to reach the spot. He also admits accused to have reached the spot within 5 minutes of the said call. I, therefore, hold that though Aas Mohd. (PW12) is not coming out with the complete truth but his testimony is not inconsistent with the testimony of Satish Kumar (PW9) and also that of Bhagwan Singh (PW14), regarding arrival of accused at the under construction site within 5 minutes of a call having been made to him. Apparently, the accused had arrived in pursuance of bribe demanded by him on the previous day i.e. 19.04.2012. 10.4 It can also be gathered from the testimony of aforesaid 3 witnesses that on arrival at the house of the complainant, accused demanded bribe. Satish Kumar (PW9) has specifically so deposed. Bhagwan Singh (PW14) admits the presence of panch witness Satish Kumar (PW9). He has further deposed that Aas Mohd gave an explanation to accused Sunil Kumar that he could arrange only Rs. 5,000/. The occasion for complainant to tender explanation for arranging only Rs.5,000/ would have arise, only when the accused had made demand of bribe. Panch Witness Satish Kumar (PW9) has ofcourse deposed in the same terms; though much more explicitly, where in he has deposed that on counting the money and finding the State Vs. Sunil Kumar Page 16 of 31 17 same to Rs.5,000/, accused questioned complainant for having arranged only Rs.5,000/ and directed him to arrange the balance amount of Rs.3,000/. Complainant has ofcourse not supported the prosecution as regards this part of prosecution case. I am, however, of the opinion that from the testimony of Satish Kumar (PW9) and Bhagwan Singh (PW14), it can be safely gathered that accused on arrival on the under construction site repeated his demand of Rs.8,000/ as bribe for permitting the complainant to raise the construction.
(iii) Whether accused accepted Rs. 5,000/ from the complainant on 20.04.2010 in pursuance of his demand of Rs. 8,000/?
11.1 To prove acceptance of bribe at the time of trap the prosecution has relied upon depositions of complainant Aas Mohd. (PW12), his friend Bhagwan Singh (PW14) and panch witness Satish Kumar (PW9). Aas Mohd. ( PW12) has again made a statement inconsistent to the statement made by him during the investigation and also to the raid reports duly signed by him. He has introduced Raju (Mason) as bribe giver. On the aspect of acceptance of bribe he is conspicuous by his silence. However, he notes the presence of accused to be one of those who had come to collect bribe and was caught by the raiding team. He has deposed that accused was in uniform. He has ofcourse also introduced certain other persons with the accused, who had allegedly come to collect the bribe. State Vs. Sunil Kumar Page 17 of 31 18 11.2 Complainant's friend Bhagwan Singh (PW14) has also woven a story different from his statement made to the police. The witness has not deposed anything about acceptance of bribe by accused at the time of trap. He has, however, deposed that Aas Mohd. had spoken to accused and tendered explanation for being able to arrange only Rs. 5,000/. He thus supports the prosecution story to the extent that transaction was between complainant Aas Mohd. and accused Sunil. He has also ofcourse spoken about presence of other police officers with the accused.
11.3 The third witness to this part of the transaction, panch witness Satish Kumar (PW9) has fully supported the case of prosecution. He has deposed that on demand made by accused Sunil, complainant Aas Mohd. handed over treated GC notes to the accused, accused counted the money and told the complainant that amount was short by Rs. 3,000/ and that he should pay the balance Rs.3,000/ in two/three days time and only then start the construction. 11.4 It is apparent that complainant Aas Mohd. and his friend Bhagwan Singh have deliberately made part misstatements on oath before the court. Their evidence has to be weighed carefully, to draw support to the extent of broader story of prosecution proved by them. The micro elements of the case have deliberately been State Vs. Sunil Kumar Page 18 of 31 19 concealed or misstated by them. A study of testimony of complainant Aas Mohd. (PW9) reveals that he supports the prosecution story at the macro level, viz (i) as regards the demand of bribe having been made for permitting him to raise construction on his house. (ii) His arranging Rs. 5,000/ for the raid and lodging complaint Ex. PW9/A wherein accused Sunil has been specifically named to be the person who had demanded the bribe. (iii) He has then admitted the presence of Sunil at the spot at the time of trap, who had reached there within five minutes of a call having been made by him to the person who had demanded bribe. Similarly Bhagwan Singh (PW14) also broadly supports the story of prosecution. He admits scribing the complaint Ex. PW9/A on the information submitted by complainant Aas Mohd. He has also deposed about arrival of accused within 5/10 minutes after a call having been made by Aas Mohd to him. He admits discussion between complainant and the accused at the spot regarding the quantum of bribe. Thus, though both the witnesses have tried to help the accused by resiling from their previous statements on certain fundamental aspects; yet their admission of the complaint Ex. PW9/A and admission of presence of accused at the spot and discussion with him regarding the quantum of bribe lends support to the prosecution story, which is fully supported by panch witness Satish Kumar (PW9). I have no reasons to disbelieve the testimony of Satish Kumar (PW9) who is an independent witness and was associated in the trap by the Raid State Vs. Sunil Kumar Page 19 of 31 20 Officers having been deputed by his office to perform the duty as shadow witness.
11.5 Acceptance of bribe by the accused is also proved by the fact of presence of phenolphthalein powder on his hands. Satish Kumar (PW9) has deposed that on acceptance of the treated GC notes accused counted the same and then held them in his right hand. Wash of both of his hands was taken. Aas Mohd (PW12) and Bhagwan Singh (PW14) have also deposed that both hands of accused were separately washed and the washes were collected in separate bottles. As per the FSL report Ex. PW16/J, left hand as well as right hand wash of accused was found to contain phenolphthalein powder. Apparently this is the same powder which was applied on the currency notes brought by the complainant before the raid. The fact of application of phenolphthalein powder on GC notes has been sufficiently proved in the depositions of Satish Kumar (PW9), Aas Mohd. (PW12), Bhagwan Singh (PW14) and the raid officer Inspector Megh Raj (PW15). 11.6 I, therefore, hold that prosecution has successfully proved the allegation of acceptance of bribe of Rs. 5,000/ by the accused at the time of trap.
(iv) Whether the treated GC notes of Rs. 5,000/ were recovered from the possession of the accused.
State Vs. Sunil Kumar Page 20 of 31 21 12.1 To prove recovery of GC notes from the possession of the accused reliance has been placed upon testimony of Satish Kumar (PW9), Aas Mohd. (PW12), Bhagwan Singh (PW14) and the raid officer Inspector Megh Raj (PW15). Aas Mohd. (PW12) has deposed that on the asking of raiding team accused picked up treated GC notes from the ground which were handed over to him by the raiding team and he kept the same with him which were subsequently deposited in PSACB. Bhagwan Singh (PW14) has also deposed that on the instructions of Raid Officer accused lifted GC notes from the ground and the same were taken into police possession vide seizure memo Ex. PW9/C. 12.2 On the contrary, Satish Kumar (PW9 ) has clearly deposed that on arrival of raiding team, raid officer disclosed his identity and offered his search to the accused. Accused declined the offer. On instructions of Raid Officer witness took the search of the accused and recovered treated GC notes from his right hand. Serial numbers of the recovered GC notes were compared with the serial numbers mentioned in the raid report which has matched. Recovered treated GC notes were seized vide seizure memo Ex. PW9/C. Inspector Megh Raj (PW5) has also deposed exactly on same terms. 12.3 This court now has two statements which are consistent with each other and also with the contents of seizure memo Ex. PW9/C. State Vs. Sunil Kumar Page 21 of 31 22 A study of seizure memo Ex. PW9/C indicates recovery to have been effected by panch witness from the rght hand of accused Sunil. Seizure memo bears signatures of all the aforesaid four witnesses including panch witness and RO. Their statements are consistent to the contents of seizure memo. The other two witnesses Aas Mohd. ( PW12) and Bhagwan Singh ( PW14) have also appended and identified their signatures on the seizure memo, but have made contrary statements. As discussed in previous paras, the statement of these two witnesses made on oath in the court is not worthy of credence and is liable to be rejected. They cannot be permitted to wriggle out of the contents of seizure memo which bears their signatures. It is not their case that they were made to forcibly sign the seizure memo. I, therefore, hold that prosecution has proved beyond reasonable doubt that 10 treated GC notes of Rs. 500/ each were recovered from the possession of accused Sunil Kumar.
13.1 I shall now deal with the issues raised by Ld defence counsel in his arguments. The first argument of Sh. Verma Adv. is a challenge to the authenticity of preraid report Ex. PW9/B which is apparently a typed written document and had two blank spaces, wherein time has been written in hand. Prosecution has cited four witnesses to prove the preraid proceeding. Complainant Aas Mohd. ( PW12) and all the three witnesses to the preraid proceeding i.e. State Vs. Sunil Kumar Page 22 of 31 23 Bhagwan singh (PW14), panch witness Satish ( PW9) and Raid officer Inspector Megh Raj ( PW15) have proved the same to the hilt. All the aforesaid four witnesses have also identified their signatures on the same. Merely because one witness i.e. Satish Kumar ( PW9) deposed the same to have been hand written will not vitiate the document and its contents. Also because the time has been written in hand and not typed, would not be fatal to the contents of documents which have been sufficiently proved by oral testimony of three witnesses. RO, who had prepared the document was not cross examined to explain the reason for writing the time in hand, in an otherwise typewritten document. I do not find any suspicious element about the preraid report, so as to reject the documents as a whole.
13.2 Next argument raised by Shri Verma Adv. is with respect to overwriting as regards the time in DD No. 28 and overwriting as regards DD No. 30 and 31. Sh. Verma has referred to Ex. PW2/DA, DB and DC to support this argument. A study of the documents reveals that DD No. 28 has an apparent overwriting, wherein minutes of the time have been overwritten. The hours i.e. 12 has no overwriting. The next DD i.e. DD No. 29 bears the time 12.45. Thus manipulation, if any, in timing of DD No. 28 is for a maximum of 45 minutes, between minutes 00 and minutes 45. DD No. 28 is arrival entry of Inspector Megh Raj i.e. Raid Officer of the present case to the police station after State Vs. Sunil Kumar Page 23 of 31 24 the raid. Alleged manipulation of time of a couple of minutes in the arrival entry, after the raid, would not vitiate the raid. Ld. counsel has not been able to establish before this court any prejudice that might have been caused to the accused by over writing on the number of DD entries No. 30 and 31. Merely because there is over writing, would not be a cause to doubt the authenticity of proceeding. This could be an honest/inadvertent error as well; unless the defence is able to indicate even primafacie prejudice to the accused, the same has to be ignored. 13.3 Sh. Verma has laid great emphasis on the inconsistency in the statement of Aas Mohd. and his friend Bhagwan Singh. The evidenciary value and inconsistencies in the statements of two witnesses have been discussed in detail in para 11.4 above. Testimony of Satish (PW9) has been challenged by Ld. counsel on the ground that he is silent about the presence of Bhagwan Singh. It is correct that the witness has not acknowledged the presence of Bhagwan Singh in the entire raid proceeding, in his examination in chief; however, towards the end of cross examination by Ld. defence counsel, he has acknowledged the presence of Bhagwan Singh, to have returned to police station after the raid at 9.00 PM. There was no further cross examination of this witness by ld. counsel, as regards the presence of Bhagwan Singh (PW14) during the raid. This argument cannot, therefore, be permitted to be raised.
State Vs. Sunil Kumar Page 24 of 31 25 13.4 I do not find any merits in the argument of Sh. Verma that because panch witness is a government official, his evidence is influenced by the Raid Officer and the IO. Rather, to the contrary, panch witness being a government official performing his duties on the directions of his office, had no reasons to make a false case against accused Sunil Kumar, who is also a public servant. The witness rather deserve a compliment by the court, who has stood by his principles and not been won over like complainant and his friend. 13.5 Aas Mohd. (PW12) and Bhagwan Singh (PW14) have introduced the presence of more than one police officials with accused Sunil Kumar. Bhagwan Singh (PW14) has gone one step further and has even named one Beat Ct. Sandeep to be present with the accused. However, panch witness Satish Kumar (PW9), Raid Officer Inspector Megh Raj (PW15) and Ct. Jai Krishnan (PW3) who were also present at the spot at the time of raid have not noticed the presence of any other police official with accused at the time of trap. There is no suggestion given to Ct. Jai Krishnan about presence of other police officials with the accused. Satish Kumar (PW9) denied the suggestion that one Head Constable and another constable were also present with the accused, who had directed the complainant to clear encroachment on the road. No suggestion was given to the Raid Officer Inspector Megh Raj that State Vs. Sunil Kumar Page 25 of 31 26 there were other police officials with the accused at the time of his trap. Thus the story of presence of other police officials with the accused, propagated by the complainant and his friend Bhagwan Singh are apparent attempts to mislead the court. I reject this part of their testimony for the reasons stated in para 11.4 above. Moreover the accused in defence evidence, has not examined any witness to support this defence tried to be constructed.
13.6.1 I have gone through the Judgments cited by Sh.Verma. There can be no dispute about the law laid down by Hon'ble Higher Courts, but the cited law does not apply on the facts of the present case and does not help the defence. In the case of Hari Singh Yadav (Supra), the statement of complainant was found inconsistent and un trustworthy and the panch witness had failed to support the case of the prosecution, having resiled from his previous statement. In the present case, as discussed in paras 11.4 above, complainant has deliberately made false statement before the court on oath and is, therefore, not entirely trustworthy. However, he has broadly supported the case of prosecution and has not disputed the correctness of documents prepared during the investigation viz his complaint, seizure memo and raid reports. Contrary to the cited case, panch witness in the presence case has fully supported the case of the prosecution. Law laid down in Hari Singh Yadav's case (supra) is, therefore, not applicable on the facts State Vs. Sunil Kumar Page 26 of 31 27 of the present case.
13.6.2 In the case of M.P.Singh (Supra), the Hon'ble High Court of Delhi give benefit of doubt to the accused as the raid officer had conducted the raid without verifying the truth in the allegations and had decided to lay a trap. Despite having so observed, the Hon'ble High Court while granting relief to the accused held that prosecution was unable to prove beyond reasonable doubt that accused had made any demand of bribe. Possibility of complainant nurturing a grudge against the accused had also been noticed by the Hon'ble High Court. Thus, acquittal was not for the mere reason that the complaint was not verified before the trap. In the present case, as discussed in paras 8 to 10 above, there is no doubt regarding demand of bribe. There is also no evidence of complainant having a grudge against the accused. I am, therefore, of the opinion that law laid down in M.P.Singh's case (supra) case does not help the accused.
13.6.3 In the case of B. Jayaraj (supra) complainant did not support the case of prosecution and no other witness had been examined to prove acceptance of bribe pursuant to demand. Only on the recovery of tainted currency notes from the possession of the accused, he had been convicted. In the present case, as discussed in paras 8 to 12 above there is ample proof of demand, acceptance and State Vs. Sunil Kumar Page 27 of 31 28 recovery of bribe from the possession of the accused. 13.6.4 In case of Rajkishore (supra), the Hon'ble High Court of Delhi passed an order of acquittal, as the house of the complainant was already electrified and the demand of bribe was allegedly for providing electricity again. There is no such factual position in this case. 13.6.5 Rakesh Kapoor's case (Supra) has been relied upon by ld. defence counsel to argue that the call detail record has not been proved to support the allegation of demand of bribe on phone. Devesh Kumar's case has been relied upon to supplement the above noted argument to say that certificate u/sec.65B of the Indian Evidence Act, with respect to the call detail record has not been proved. The present case does not rest upon telephonic demand of bribe. Prosecution case is primarily of demand having been made by personally visiting the site of construction and making demand at the spot. Complainant has ofcourse deposed that demand was followed up telephonically. Since the prosecution has not principally relied upon followed up demand on phone; non production of call details record through appropriate witness and non production of certificate u/sec.65/B of Indian Evidence Act can not be said to be fatal.
14. For the reasons stated in paras nos. 8 to 13 above, this court State Vs. Sunil Kumar Page 28 of 31 29 holds that prosecution has proved its case beyond reasonable doubt. The charge for offence punishable u/sec.7 of the PC Act for demand of Rs.8,000/ as bribe for permitting him to carry on with the construction on the property of complainant is proved beyond reasonable doubt. Accused is, thus, held guilty for the offence punishable u/sec.7 of the PC Act. Prosecution has also successfully proved the charge against accused Sunil Kumar of demanding & accepting illegal gratification for the amount of Rs.5,000/ other than illegal remuneration, as a pecuniary advantage for himself by corrupt or illegal means by abusing his position as public servant. Accused is, thus, held guilty for the offence punishable u/sec.13 (2) r/w/sec.13 (i) (d) of the PC Act. Accused is accordingly convicted for the offences punishable u/sec.7 & 13 (2) r/w/sec.13 (i) (d) of the PC Act.
Announced in the open Court (NAROTTAM KAUSHAL)
on 10.07.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
State Vs. Sunil Kumar Page 29 of 31
30
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE
Versus
Sunil Kumar
S/o Gajraz Singh
R/o 274, Vivekanad Nagar,
Ghaziabad, UP.
Corruption Case No. : 12/2013
FIR No. : 11/2012
Case Identification No.: 02401R0258262013
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988.
ORDER ON SENTENCE
1. Vide judgment dated 10.07.2014, Sunil Kumar stands convicted for offences punishable u/sec.7 & 13(2) of the Prevention of Corruption Act (hereinafter called as 'the PC Act'). Vide the present order, I shall sentence him for the aforesaid offences.
2. Sh. Sanjay Soni, Ld. Addl. PP has prayed for a stringent sentence. It is submitted that the convict who was a Constable in Delhi Police indulged in corrupt activity. He demanded and accepted bribe from one Aas Mohd. who was trying to raise construction in plot of land owned by him. Convict thus misused his position as public servant. His conduct and action do not deserve any lenient approach. Imposition of high fine, to serve as a deterrent has also been prayed for. State Vs. Sunil Kumar Page 30 of 31 31
3. Sh. Yogesh Verma, Ld. counsel for the convict has prayed for a lenient approach. It is submitted that convict has large family to support which include his ailing parents and two minor sons besides his wife. Convict has no other source of income. Prayer has also been made for taking lenient approach, as regards the imposition of fine. It is further submitted that convict remained in custody from 21.04.2012 to 19.06.2012, during investigation.
4. I have heard the Ld. counsels. Considering the large family of convict which is dependent upon him; I am inclined to take a lenient view. I am of the opinion that interest of justice shall be served by sentencing the convict to undergo rigorous imprisonment for a period of three years, for the offence punishable u/s 7 of the PC Act. He shall also be liable to pay a fine of Rs. 10,000/ and in default of payment of fine, he shall undergo simple imprisonment for a period of six months. As regards the offence punishable u/s 13 (2) of the PC Act convict shall undergo rigorous imprisonment of three years and is also held liable to pay a fine of Rs. 15,000/ and in default of payment of fine, he shall undergo simple imprisonment for a period of six months.
5. Both the sentences shall run concurrently. Convict shall also be entitled to benefit of section 428 Cr PC.
Announced in the open Court (NAROTTAM KAUSHAL)
on 15.07.2014. SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Sunil Kumar Page 31 of 31