Delhi District Court
State vs . Suresh Kumar Etc. Page 1 Of 43 on 1 October, 2014
1
IN THE COURT OF SH. NAROTTAM KAUSHAL
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
State
Versus
1.Suresh Kumar,
S/o Sh. Sunder Ram,
R/o F 9/91, Sector 15,
Rohini, Delhi.
2.Dilbagh Singh,
S/o Sh. Hari Singh,
R/o 837/30 Gali No. 2,
Vikas Nagar, Kakroi Road,
Sonepat, Haryana.
3.Umed Singh,
S/o Sh. Rameshwar Dass,
R/o 65/1, Extension 2C,
Lokesh Gali, Nangloi,
Delhi41.
4.Hemant Kumar,
S/o Kamta Prasad,
R/o X1115, Shyam Gali,
Rajgarh Colony,
Gandhi Nagar, Delhi.
Corruption Case No. : 5/2014
FIR No. : 35/2008
Case Identification No. : 02401R0321682014
Police Station : Anti Corruption Branch
Under Section : 7/13 (1) (d) of Prevention
of Corruption Act, 1988 &
120B IPC
State Vs. Suresh Kumar Etc. Page 1 of 43
2
Date of Institution : 09.07.2014
Date of reserving the Judgment : 18.09.2014
Date of pronouncing the Judgment : 25.09.2014
JUDGMENT
1.1 Accused Suresh Kumar, Dilbagh Singh, Hemant Kumar (all three Patwaris) and Umed Singh Kanoongo of Slum and J.J. Department, Municipal Corporation of Delhi have been charge sheeted by PSACB for offences punishable u/sec.120B of IPC, 7 & 13 of the PC Act. 1.2 It is alleged by one Devender Singh that on 08.10.2008, the aforesaid four accused persons came to his house. They showed copy of a petition filed by his uncle Sadaram, regarding unauthorised construction by his father. MCD, DDA, Slum & J.J.Department were parties in the said petition. The aforesaid four accused persons, threatened the complainant and his family members of adverse report and advised him to meet them. Complainant visited their office 23 times but could not meet them. He again went to their office a week prior to the date of complaint and met Umed and Suresh. They asked him to arrange for some money, which they would come & collect from his house on 03.11.2008. He went to PSACB to lodge the complaint, where senior officers advised him to record the demand of bribe, for confirmation of the allegations. They handed over to him a Recording Device to record the visit to his house on that day. Accused persons did State Vs. Suresh Kumar Etc. Page 2 of 43 3 not turn up. On 05.11.2008, he again visited PSACB and SI Ramesh was sent with him for recording the demand of bribe. On that day, complainant met Suresh, who made the demand of bribe of Rs.10,000/ to Rs.20,000/, which was recorded in the recording device. 1.3 On the aforesaid complaint, a raiding team was constituted and a panch witness was associated, on 06.11.2008. Raiding team went to the office of the accused persons, where accused Suresh and Dilbagh were apprehended for demanding bribe and accepting Rs.4,000/, towards the said demand. Both the aforesaid accused persons were arrested. During investigation, admitted hand writing of accused Hemant and admitted signatures of Umed were collected. Voice of accused Suresh Kumar was got identified by his superior officers. Scientific opinion on sample voice was sought and obtained. Finding sufficient material against all the accused persons, they were charge sheeted.
2.1 Charge sheet was filed in the court on 21.11.2009. Cognizance of the offence punishable u/sec.7/13 of the PC Act r/w/sec.120 of IPC was taken against all the accused persons by my Ld. Predecessor on 08.01.2010. Charge was framed on 01.05.2010. All the four accused persons pleaded not guilty and claimed trial. State Vs. Suresh Kumar Etc. Page 3 of 43 4 2.2 It is noticed that in the charge framed against the accused persons, name of accused Umed Singh and Hemant Kumar is mentioned as Umed Sharma and Hemant Gupta. This apparently is a clerical error, as they have been charge sheeted under the names of Hemant Kumar & Umed Singh. A perusal of remand papers also reveals the names as Umed Singh and Hemant Kumar. Their parentage has been correctly described. Accused persons during the trial have not disputed their names. Therefore, the error in their names in charge framed against the accused persons shall have to be ignored. Accused persons have faced the entire trial and defended the charge framed against them by my Ld. Predecessor on 01.05.2010.
2.3 Prosecution, in support of its case, examined 23 witnesses. Accused persons, in their defence, examined 12 witnesses. Arguments were heard by my Ld. Predecessor and vide judgment dated 28.09.2012, all the accused persons were discharged holding that the order granting sanction for their prosecution was invalid and nonest. The Hon'ble High Court, vide judgment dated 06.05.2014, passed in Crl. Appeal no.583 of 2014 titled as State Versus Suresh Kumar & Ors. set aside the order of discharge. It was directed that the matter be heard afresh and final judgment be delivered within 3 months.
State Vs. Suresh Kumar Etc. Page 4 of 43 5 2.4 The matter was put up before the undersigned on 09.07.2014. Adjournments were sought to await decision of SLP filed by accused persons. Finally, arguments were heard at length and concluded on 18.09.2014.
3.1 Complainant Devender Singh (PW9), his brother Chetan Singh (PW8) and their father Diwan Singh (PW4) have been cited and examined by the prosecution to prove visit of accused persons to their house on 08.10.2008 and threat meted out to them of adverse report in the petition filed by Sada Ram. Devender Singh (PW9) and SI Ramesh (PW10) have been cited to prove recording of conversation dated 05.11.2008 between complainant Devender and accused Suresh, wherein he made a demand of bribe. Devender (PW9) and Bhagirath Prasad - Panch Witness (PW5) have, further, proved the preraid proceedings and the raid proceedings on 06.11.2008. They have both deposed that Suresh Kumar demanded bribe on 06.11.2008 and instructed Dilbagh Singh to collect the same. On the money being accepted by the Dilbagh Singh, raiding team was called, which recovered the treated GC notes from the possession of Dilbagh Singh. 3.2 K.K.Bhardwaj (PW3) was an administrative superior of the accused persons, posted as Tehsildar in Slum & J.J. Department of MCD, on the relevant date. He has proved record of his office and the notings State Vs. Suresh Kumar Etc. Page 5 of 43 6 contained therein. As per the notings proved by him, court case file of Sada Ram's case was marked to Umed on 07.10.2008, who in turn marked the same to Hemant Kumar on 16.10.2008. Report was made by Hemant Kumar on 21.10.2008, which was put up before Umed Singh on 23.10.2008. This witness also identified the voice of accused Suresh in the recorded conversation, which was played before him. Mahender Kumar Jayant (PW6), who was a panch witness to the proceedings, wherein K.K.Bhardwaj (PW3) identified the voice of accused Suresh. 3.3 Rameshwar Dayal Meena (PW7) was a panch witness, in whose presence, voice sample of accused Suresh was taken in FSL, Rohini on 22.09.2009. HC Deena Mani (PW18) carried the audio CD containing the recorded conversation of demand of bribe to FSL for analysis and report. Dr. C.P.Singh (PW19) compared the recorded conversation of demand of bribe with the sample voice of accused and reported that questioned voice and sample voice of Suresh were matching.
3.4 HC Suraj Pal (PW17) had carried the exhibits i.e. hand wash bottles to FSL on 05.12.2008. FSL report Ex.PW16/F, which is per se admissible evidence u/sec.293 Cr.P.C. opines the presence of Phenolphtalein Powder and Sodium Carbonate in the bottle containing left hand wash. HC Jai Prakash (PW22) and HC Jitender Singh (PW23) State Vs. Suresh Kumar Etc. Page 6 of 43 7 were Incharge of Malkhana, PSCivil Lines. They have proved deposit and safe keeping of the exhibits as long as it remained in their custody. SI K.L.Meena (PW20) proved registration of FIR, on a rukka being brought by HC Krishan Dassan (PW15).
3.5 Dinesh Kumar (PW2) proved the Biodata of the accused persons that they were public servants working under the GNCT Delhi. R.D.Shrivastava (PW1) has proved grant of sanction u/sec.19 of the PC Act for prosecution of all the accused persons for offences punishable u/sec.7 & 13 of the PC Act.
3.6 Constable Dinesh Kumar (PW1) proved arrest of accused Hemant Kumar. SI Suraj Pal (PW17) proved arrest of accused Umed. SI Karnail Singh (PW14) has deposed that on 06.11.2008, he was handed over a recording device by Inspector Avinash Sharma to prepare a CD of the material contained therein. He proved preparation of two CDs and identified one of them as Ex.P2. Inspector Vinod Kumar (PW12) and Inspector Avinash Sharma (PW13) have proved the stages of preraid proceedings and the postraid proceedings. They are also witnesses to recovery of treated GC notes from the possession of accused Dilbagh. They have also proved taking of left hand wash of accused Dilbagh, sealing & seizing thereof. Inspector Rajender Kumar (PW11) and Inspector Nand Kumar (PW16) have proved various stages of investigation.
State Vs. Suresh Kumar Etc. Page 7 of 43 8 4.1 The evidence that came up against the accused persons was put to them and their statements u/sec.313 Cr.P.C. were recorded. It was not disputed by the accused persons that they were public servants, working in Slum & J.J. Department of MCD. However, they all denied having visited the house of the complainant on 08.10.2008 and showing a copy of petition filed by Sada Ram to the complainant. Complainant's visits to their office were also disputed by the accused persons. All accused persons except Suresh denied for want of knowledge, that on 05.11.2008, complainant met accused Suresh, who demanded Rs.10,000/ to Rs.20,000/ from him. Accused Suresh denied meeting the complainant on 05.11.2008. It was put to the accused persons that preraid proceedings were conducted, wherein panch witness and complainant were explained the role to be performed by them; the same was denied by the accused persons. Telephonic talk between accused Suresh and Umed at the time of trap was also disputed. Demand & acceptance of bribe by accused Suresh and Umed, at the time of trap, has been denied. Registration of FIR was denied. Recording of voice sample of accused Suresh was denied. It was claimed that the prosecution witnesses are interested, in the success of case. It was pleaded by the accused persons that they had prepared a report and sent to the superiors that the land in question did not pertain to Slum & J.J. Department. It was claimed that the officials of PSACB have fabricated evidence against them. Accused Umed took State Vs. Suresh Kumar Etc. Page 8 of 43 9 a plea that he was not physically present in the office after the evening of 24.10.2008. On 03.11.2008, he received a letter pertaining to enquiry about the proceedings and he gave his detailed report. He had not delayed the matter.
4.2 Supplementary statements u/sec.313 Cr.P.C. of the accused persons were recorded on 25.09.2014 and it was put to accused persons that certified copy of court reference (Ex.PW3/A1 to A44) for which bribe was demanded was seized, vide seizure memo Ex.PW3/B. The fact of seizure of the file was not disputed by the accused persons. 5.1 Accused persons examined 12 witnesses in their defence. Nagender Prasad (DW1) (for accused Suresh Kumar) identified the signatures of K.K.Bhardwaj - Tehsildar, on the office notings dated 06.11.2008. Radhey Singh (DW2)(for accused Suresh Kumar) deposed that he was also apprehended with accused Suresh and Dilbagh on 06.11.2008 and was taken to PSACB at about 11:30 AM and he was let off by 02:00 PM to 03:00 PM.
5.2 Ravinder Singh (DW1) (for accused Umed Singh)( from the office of subregistrar Janakpuri) proved a Sale Deed in favour of Prithvi Raj Bhasin, etc. Rajkumar (DW2) (for accused Umed Singh) (from the SubRegistrar office, Janakpuri) also proved a sale deed. State Vs. Suresh Kumar Etc. Page 9 of 43 10 Surender Kumar (DW3) (for accused Umed Singh) (from D.C. Office) proved the mutation file pertaining to property no.3221, Gali no.1, Old Ranjeet Nagar, Delhi. Brijmohan Sethi (DW4) (for accused Umed Singh) has deposed that he was working with Prithvi Raj Bhasin, who told him that some litigation in respect of a property purchased by him resulted against him, on account of a report by Umed Singh - Kanoongo. Prithvi Raj Bhasin had, therefore, threatened that he would not forgive Umed Singh. Devender Singh was also partner of Prithvi Raj Bhasin and Prithvi Raj Bhasin had told him that he had got trapped Umed through Devender Singh. Rajesh Uppal (DW5) (for accused Umed Singh) has also deposed in the same terms as Brij Mohan Sethi (DW4). S.C.Yadav (DW6) (for accused Umed Singh) was Director, Slum & J.J.Department in October2008. He proved his notings on the file, which was marked by him to accused Umed Singh on 06.10.2008. K.K.Bhardwaj (DW7), who had been previously examined by prosecution as PW3, was again summoned by the defence to prove the attendance register for 08.10.2008 and the leave application of Umed Singh.
5.3 Ravi Bhushan (DW1) (for accused Dilbagh Singh) proved the Vigilance file recommending disciplinary action against the accused persons. S.K.Mahajan (DW2) (for accused Dilbagh Singh) has proved diary entry regarding movement of Vigilance file. Jogender Kumar State Vs. Suresh Kumar Etc. Page 10 of 43 11 (DW3) (for accused Dilbagh Singh) has deposed that sanction order for accused Dilbagh Singh was typed by him.
6.1 Sh.Sanjay Soni, ld. Addl. PP on behalf of the State has argued that the proceedings dated 08.10.2008, when all the four accused persons visited complainant's house have been proved by Devender Singh (PW9), Chetan Singh (PW8) and Diwan Singh (PW4). All the three witnesses have correctly identified and named accused Suresh Kumar and Dilbagh Singh to be from among those four, who had visited their house. Names of all the four accused persons have been deposed by three witnesses. Minor error in identification of accused Umed and Hemant cannot be said to be fatal, as their identity is specifically established from the records of Slum & J.J. Department (Ex.PW3/A1 A44). It is argued that the Audio recording of the conversation between the complainant Devender and accused Suresh regarding their meeting dated 05.11.2008 is proved by SI Ramesh (PW10) and Devender Singh (PW9). The transcript of conversation Ex.PW9/A has been further proved by the complainant and the IO. A perusal of the transcript reveals a clear demand by accused Suresh of the amount of Rs.10,000/, Rs.20,000/. It is further pointed out that accused Umed and Hemant were dealing with the court case, filed by complainant's uncle. The report was eventually prepared by Hemant and approved by Umed Singh. Thus, these two persons, who had direct knowledge of the case State Vs. Suresh Kumar Etc. Page 11 of 43 12 and factual position, associated the other two accused persons and reached the house of the complainant on 08.10.2008. FSL Report (Ex.PW16/G) corroborates the oral testimony of complainant Devender (PW9) that Suresh had made a demand of bribe. The Report opines audio recording to be continuous and without any alteration. Voice of Suresh has been found to be matching with the voice of person making demand in the recorded conversation.
6.2 It is next argued that the trap proceedings are amply proved in the testimony of complainant Devender Singh (PW9) and panch witness Bhagirath Prasad (PW5). Acceptance of bribe by Dilbagh Singh, at the time of trap, is corroborated by the hand wash proceedings of the left hand of accused Dilbagh. Sh.Soni has also referred to presumption u/sec.20 of the PC Act. It is argued that recovery of treated GC notes from the possession of accused Dilbagh Singh, which are established to have been demanded and accepted by him; raise a presumption that same were bribe money. Since accused Suresh and Dilbagh were apprehended at the spot demanding and accepting bribe, who were actually not dealing with the court case file of complainant's uncle; the conspiracy with other two accused persons can be inferred because they were actually dealing with the file. Sh.Soni has, therefore, argued that the prosecution has proved its case beyond reasonable doubt against all the accused persons regarding conspiracy among State Vs. Suresh Kumar Etc. Page 12 of 43 13 them and demand & acceptance of bribe in furtherance of the said conspiracy.
7.1 Sh.Mahender Kaushik, Sh.Sandeep Sharma, Sh.Yogesh Verma & Sh.Vishwajeet Swan, ld. counsels for accused persons have raised arguments at length for each of the accused persons represented by them. It is argued by ld. defence counsels that the visit dated 08.10.2008 of accused persons to the house of complainant party is not proved. Accused persons have been wrongly identified by the complainant, his brother and his father. Presence of Umed Singh is disputed by Sh.Yogesh Verma on the ground that he was on inspection in East Zone on 08.10.2008 after 12 O' Clock and could not have reached the house of the complainant, which is in West Zone, by 06:00 PM. It is also pointed out that there is inconsistency in the statements of PW8, PW9 & PW4 as regards the threat meted out by the accused persons during this visit. It is, thus, argued that the visit of 08.10.2008 by the accused persons to the house of the complainant is not proved at all. 7.2 It is further argued that there is no evidence of demand of bribe on 08.10.2008 or any time thereafter. The alleged audio recording of conversation between complainant and accused Suresh on 05.11.2008, suffers from major technical fallacy. The instrument, wherein the recording was allegedly stored, has not been proved. There State Vs. Suresh Kumar Etc. Page 13 of 43 14 is no certificate u/sec.65/B of Indian Evidence Act with respect to the said recorder and the computer used for transferring data on CD. Prosecution has withheld the actual recording of 05.11.2008 and introduced an audio video recording, which is contained in CD Ex.P2 and was also sent to FSL for analysis. It is not the case of the prosecution that video recording was also done, but FSL report Ex.PW16/G notices video file also to be contained in the CD sent for analysis. It is further pointed out that PW4 has deposed that there was no visit of his sons to the office of accused persons prior to 05.11.2008. 7.3 The proceedings of 06.11.2008 i.e. the trap proceedings are disputed with the submission that the recording device carried by the complainant for the said proceedings has been withheld. Call details record of alleged phone call by accused Suresh to accused Umed, at the time of trap has been withheld. There is no evidence that there was demand of bribe by either accused Suresh or by accused Dilbagh, at the time of trap. There is also no evidence that accused Dilbagh was aware of any alleged demand or settlement of bribe between accused Suresh and complainant. There is no evidence that Dilbagh consciously accepted the amount knowing the same to be bribe amount. 7.4 It is further argued that at the time of trap raiding team took away one Radhe Singh with them, who was subsequently let off. State Vs. Suresh Kumar Etc. Page 14 of 43 15 The investigating team or the raiding team was groping in the dark and had no knowledge about the involvement of any other person. They directed the senior officers of Slum & J.J. Departments to send Umed and Kanwar Pal to PSACB and subsequently by another telephonic call, they sought to implicate Umed and Hemant Kumar. It is, therefore, argued that RO & IO have implicated accused Umed and Hemant without having any evidence against them.
7.5 It is further pointed out that no proceedings were conducted at the spot. Accused Suresh Kumar, Dilbagh Singh and one Radhe Singh were illegally picked up from Slum & J.J.Department's offfice at 11:30 AM and taken away to PSACB. No proceedings were carried out at the spot. Treated GC notes & bottles of hand wash were planted at the office of PSACB. There is no evidence regarding conspiracy between the four accused persons. There is no evidence of meeting of mind or demand of bribe in furtherance of conspiracy. It is next argued that complainant in conspiracy with his partner Prithvi Raj Bhasin has falsely implicated the accused persons. Accused Umed had submitted a report in proceedings pending before the Hon'ble High Court as a result, whereof, Prithvi Raj Bhasin lost a case with respect to a valuable property. Said Prithi Raj Bhasin had threatened Umed Singh to be framed in a case and with the help of his partner Devender, who is complainant in this case, present case has been fabricated. State Vs. Suresh Kumar Etc. Page 15 of 43 16 8 Ld. counsels have relied upon the law laid down in State of Kerela Vs. C.P.Rao reported as 2011 (5) LRC 61 SC, Hari Singh Yadav Vs. State reported as Crl. Appeal No.464/2004 (DHC), Rajkishore Vs. State reported as Crl. Appeal No.33/2003 (DHC), Banarasi Dass Vs. State of Haryana reported as AIR 2010 SC 1589 and Trilok Chand Jain Vs. State of Delhi reported as AIR 1977 SC 666.
9 I have heard the Ld. Addl. PP for the State as well as Ld. Counsels for the accused persons and with their assistance gone through the evidence on record and the law cited by them. On the basis of evidence and arguments raised, following questions arise, which need to be answered:
(i) Whether there was conspiracy between all the accused persons to demand and accept bribe from the complainant/ his family members?
(ii) Whether there was any demand of bribe prior to 06.11.2008? (iii) Whether there was demand of bribe by accused Suresh and
acceptance of Rs.4,000/ by accused Dilbagh, at the time of trap on 06.11.2008?
(iv) Whether treated GC notes of Rs.4,000/ were recovered from the possession of accused Dilbagh?
I shall deal with each question, one by one State Vs. Suresh Kumar Etc. Page 16 of 43 17
(i) Whether there was conspiracy between all the accused persons to demand and accept bribe from the complainant/ his family members?
10.1 It is settled principle of law that direct and tangible evidence of conspiracy is very rarely available; the same is to be gathered from the circumstances. To establish conspiracy, first and foremost evidence led by prosecution is the testimony of PW4, PW8 & PW9, who have deposed that all the four accused persons visited their house on 08.10.2008 and threatened them of adverse report, which Slum and J.J. Department could file in a suit instituted against them by Sadaram. PW4 named all the four persons but identified only one of them i.e. Dilbagh correctly. PW8 & PW9 also named all the four accused persons but identified only Suresh and Dilbagh, correctly. All the three witnesses have, however, deposed that these four accused persons introduced themselves as officials from Slum and J.J. Department and threatened that they would give an adverse report/ get the premises vacated and demolished. It has also been deposed that accused persons asked them to visit their ofice. Testimony of Diwan Singh (PW4) is sought to be challenged on the ground that in cross examination, it was demonstrated that he had concealed the fact of prior knowledge of pendency of civil suit or filing of written statement by him. Chetan Singh (PW8), on being crossexamined, was given a suggestion that only Suresh had visited their house for the purpose of State Vs. Suresh Kumar Etc. Page 17 of 43 18 inspection for submitting comments, for the written statement. On behalf of Umed Singh, it was suggested that he was on duty in Trans Yamuna Area on that day, therefore, he could not have visited their house. He admitted that Slum and J.J. Department had nothing to do with the suit property. He volunteered that accused persons had come to harass them. Devender Singh (PW9), on being crossexamined, admitted that in written statement filed by them, they had taken a plea that Slum and J.J. Department had nothing to do with the suit property. 10.2 Failure of the witnesses to identify all the four accused persons correctly, can not be sufficient ground to discard their testimony as regards the visit of all the four accused persons to their house. A stray visit about 2 years prior to recording of evidence by persons whom the witnesses had never met earlier, can not be enough to identify them individually two years later. PW4 is an old person, who claims to be having a poor eye sight and had not visited the office of accused persons and had no occasion to meet them subsequently. His failure to identify three of the accused persons can not draw any benefit for the accused persons. Similarly, failure of PW8 & PW9 to identify Umed & Hemant can also be explained on the premise that they had not met them subsequently. Accused Suresh and Dilbagh had been trapped on 06.11.2008 and had distinct identities as one of them is bald and the other one has his right arm amputated. Identity of these two persons State Vs. Suresh Kumar Etc. Page 18 of 43 19 was thus easy to be fixed, even by a person who had met them occasionally. Moreover, accused Suresh & Dilbagh having been trapped on 06.11.2008, there can be no dispute about the two of them being a part of the conspiracy, to accept and demand bribe.
10.3 As regards the involvement of remaining two accused persons i.e. Hemant and Umed involved in the conspiracy, there is ample evidence in the shape of documentary record. Court reference file of the suit filed by the Sadaram was seized by the IO, vide memo Ex.PW3/B. Contents of the file, Ex.PW3/A1 to A44, have been proved by K.K.Bhardwaj - Tehsildar, Slum & J.J.Department (PW3). A perusal of the noting sheet Ex.PW3/A3 reveals that the file was marked to Umed Singh on 07.10.2008, who subsequently marked the same to Hemant on 16.10.2008. This has been so explained by PW3, in his cross examination, by Sh.Yogesh Verma, Adv. Statement of S.C.Yadav (DW6) that file was marked to Umed Singh on 07.10.2008, who received the same on 16.10.2008 is apparently in conflict with the statement of K.K.Bhardwaj (PW3), who had marked the file to Umed Singh on 07.10.2008 PW3 has deposed that Umed Singh haf received the file on 07.10.2008. Defence, which called K.K.Bhardwaj in defence evidence chose not to put this aspect to him. I, therefore, reject the testimony of (DW6) that file was received by Umed Singh - Kanoongo on 16.10.2008. A study of note Ex.PW3/A3 reveals that on 16.10.2008, Umed Singh - Kanoongo further marked his file to his subordinate who was accused State Vs. Suresh Kumar Etc. Page 19 of 43 20 Hemant Kumar. It is, thus, apparent that on 07.10.2008 the file was with accused Umed Singh and, which was further to be dealt with by him and Hemant Kumar. The file was marked to Hemant Kumar on 16.10.2008 for report. He prepared the report on 21.10.2008 and file reached Tehsildar K.K.Bhardwaj through Umed Singh. These office notings are on record as Ex.PW3/A1. Thus, accused Umed definitely had knowledge of the file on 07.10.2008 i.e. a day prior to their visit to the house of the complainant. Accused Hemant being immediate subordinate to accused Umed in hierarchy, apparently worked under the directions of Umed Singh. Thus, accused Hemant and Umed, who were to submit report to Tehsildar on the status of land owned by complainant's family, had sufficient reason & justification to visit the premises i.e. house of complainant party for inspection of the same. I, therefore, have no reason to disbelieve the oral testimony of PW4, PW8 & PW9, regarding visit of all the four accused persons to their house on 08.10.2008. The plea of alibi taken by accused Umed that he was in Trans Yamuna Area on that day has not been sufficiently proved by him. There is no evidence of any work performed or report submitted by him in Trans Yamuna Area on 08.10.2008. Moreover, the visit to the house of complainant is stated to be after 06:00 PM, by which time Umed Singh could have easily returned from his visit to Trans Yamuna area if at all he had gone there at 12 O' Clock. All the four accused persons, who were from the Revenue Staff from Slum & J.J. Department of MCD occupied State Vs. Suresh Kumar Etc. Page 20 of 43 21 same office and had ample opportunities to meet each other, speak to each other and conspire for demand and acceptance of bribe. I, therefore, hold that prosecution has proved beyond reasonable doubt that there was conspiracy between all the four accused persons, to demand & accept bribe from complainant party.
(ii) Whether there was any demand of bribe prior to 06.11.2008? 11.1 As regards the demand of bribe on 08.10.2008, there is no
direct evidence. PW4, PW8 & PW9 have not deposed that on the day of visit by the accused persons to their house on 08.10.2008, there was any demand of bribe. They have only deposed that accused persons threatened them of adverse report/ demolition of construction and asked the complainant to visit their office. Complainant (PW9) has further deposed that he went to the office of accused persons 23 times but could not meet them. He met accused Suresh on one occasion and he asked him to meet on 03.11.2008. He, then, went to PSACB and was given a recording device to record the conversation but no recording could be conducted as the meeting did not materialise. He again went to PSACB on 05.11.2008 and SI Ramesh Kumar was assigned to go with him and to record the conversation. During this visit to office of accused persons, accused Suresh met the complainant and asked him to hand over Rs.10,000/, Rs.20,000/ or whatever he had brought. This State Vs. Suresh Kumar Etc. Page 21 of 43 22 conversation is recorded in the recording device. On being cross examined by Sh.B.S.Rana, Adv. for accused Suresh, he deposed that accused had taken him to a Tea shop outside the office. He denied the suggestion that he had not met accused Suresh on 05.11.2008. On being crossexamined by Sh.Ritesh Sharma, ld. counsel for accused Dilbagh, he explained that he and his brother Chetan worked together but he had not mentioned in the complaint that on 05.11.2008 his brother Chetan was also with him and SI Ramesh Kumar. The decision to conduct raid was taken on 05.11.2008.
11.2 SI Ramesh Kumar (PW10) has deposed that on 03.11.2008, he along with the complainant Devender went to his house carrying the voice recorder but no meeting had transpired. On 05.11.2008, complainant and his brother again came to PSACB and he went with them carrying a recorder, which he handed over to complainant after switching on same. After some time, complainant and his brother returned and told him about the conversation having been recorded. They also told him that they have been called by the accused on the next day. On being crossexamined, he deposed that he had not made any memo regarding issuance or receipt of the recording device. Recording had not taken place in his presence. He denied the suggestion that he had not gone with the complainant and his brother to the office of Slum and J.J. Department.
State Vs. Suresh Kumar Etc. Page 22 of 43 23 11.3 Transcript Ex.PW9/A of the recorded conversation has been proved by complainant PW9. SI Karnail Singh PW14 has deposed that he prepared two CDs of the recorded conversation from the recording device, given to him by Inspector Avinash Sharma. On being crossexamined, SI Karnail Singh admitted that no memo had been prepared on 06.11.2008 regarding preparation of CD by him. The recording device given to him was in unsealed condition. The recording was in audio device only. Dr. C.P. Singh (PW19) has been cited and examined by the prosecution to prove the authenticity of recorded conversation. He examined the CD and opined it to contain audio file, wherein there was no indication of any type of alteration in the recording. He also opined the voice of one of the speaker therein, to be matching with the voice of accused Suresh.
11.4 Ld. Defence counsels have strongly opposed reliance upon this electronic form of evidence. It is argued that the recording device has not been proved before the court. There is no certificate u/sec.65B of Indian Evidence Act with respect to the recording device and the computer used by SI Karnail Singh for transferring the data. It is also argued that the CD sent to FSL for analysis contained a video file also. I have given thoughtful consideration to the arguments raised by Ld. Defence counsels and I find them to be meritorious. However, I do not subscribe to the view that the recording sent for analysis was different, as it contained a video file. None of the witnesses of prosecution has State Vs. Suresh Kumar Etc. Page 23 of 43 24 actually described recording device to be only an audio recorder. Possibly the device could record audio as well as video and the conversation being relevant for the purpose of prosecution, was relied upon. This court, however, does find lacuna in the prosecution case that it failed to give complete description of the recording device. It was incumbent upon the prosecution to explain the features of recording device regarding its capability or incapability of shooting videos. Prosecution has also not explained as to why the video file was not of relevance or not relied upon. Transfer of data from the recording device to the CD, using a computer (undoubtedly an electronic evidence) should have been accompanied by certificate u/sec.65B of Indian Evidence Act.
11.5 Reliance by Sh.Mahender Kaushik on law laid down in Ansar P.V. Vs. P.K.Basheer & ors. (Civil Appeal No.426 of 2012 decided on 18.09.2012) by the Hon'ble Supreme Court is rightly placed. I, thus, hold that CD said to be containing the recorded conversation, or the transcript thereof, is not admissible evidence.
11.6 Not withstanding, rejection of electronic evidence, it can not be said that prosecution has failed to prove demand of bribe by accused Suresh on 05.11.2008. The fact of complainant Devender going to the office of Slum and J.J. Department on 05.11.2008 is proved by the State Vs. Suresh Kumar Etc. Page 24 of 43 25 complainant (PW9) himself, his brother Chetan (PW8) and SI Ramesh (PW10). Sh.B.S.Rana, ld. counsel for accused Suresh, while cross examining Chetan Singh (PW8) himself suggested that complainant party had been visiting Slum and J.J. Department. On being cross examined by Sh.Ritesh Sharma, ld. counsel for accused Dilbagh, Chetan (PW8) reported that he went to PSACB with his brother on 05.11.2008. In fact, none of the ld. defence counsels has given suggestion to this witness that he had not gone to Slum and J.J.Department on 05.11.2008. Devender Singh (PW9), on being crossexamined by Sh.B.S.Rana denied the suggestion that he did not meet Suresh on 05.11.2008 or that Suresh did not demand bribe of Rs.10,000/, Rs.20,000/. Even this witness was not given a suggestion that he did not go to Slum and J.J. Department on 05.11.2008. SI Ramesh (PW10) was given a suggestion that 'Chetan had not gone with complainant'; not that he did not go to Slum and J.J. Department on 05.11.2008.
11.7 From the evidence as notice above, I have no reasons to doubt or disbelieve the consistent version of PW8, PW9 & PW10 that they all went to Slum and J.J. Department on 05.11.2008. Even, Diwan Singh (PW4) has also answered in his crossexamination by Sh.Yogesh Verma, ld. counsel that his sons went to office Slum & J.J. Department to talk to accused persons on 05.11.2008. Thus, having held that complainant along with his brother and SI Ramesh went to Slum and J.J. State Vs. Suresh Kumar Etc. Page 25 of 43 26 Department on 05.11.2008, prosecution version regarding the purpose of visit is strengthened. Having discarded the electronic evidence of recorded conversation this court is left with the oral testimony of Devender Singh (PW9) as regards the demand made by Suresh on 05.11.2008. Surprisingly, PW9, on being crossexamination by the counsel for accused Suresh, was not even given a suggestion that complainant did not meet Suresh on 05.11.2008. He was only suggested that there was no bribe amount demanded by accused Suresh. The evidence as noticed above, establishes beyond reasonable doubt that on 05.11.2008 complainant went to the office of Slum & J.J. Department and met accused Suresh. During this meeting, he was carrying a recorder and he taped the conversation with Suresh. PW9 & PW10 have also deposed that PW9 was given a recording device, to record the conversation with Suresh. They have further deposed after meeting with Suresh, PW9 handed over the device to PW10, informing him of having recorded the conversation of demand of bribe. The testimony of PW10 that complainant and his brother came back and informed him about the talk between them and accused Suresh, is relevant evidence u/sec.6 of the Indian Evidence Act. There is no suggestion to this witness that complainant and his brother did not tell him about the conversation with accused Suresh, wherein, he had demanded bribe. As regards the prosecution case of demand of bribe by accused Suresh during this meeting, it is only the oral testimony of complainant, who State Vs. Suresh Kumar Etc. Page 26 of 43 27 has so far been found to be speaking the truth on all other aspects. Therefore, this court does not have reasons to disbelieve the complainant as regards his deposition of demand of bribe by accused Suresh. Moreover, the future conduct of accused Suresh as discussed in subsequent paras further gives credence to the averment of complainant that accused Suresh demanded bribe during this meeting. Another reason for which this court is of the opinion that testimony of PW4, PW8 & PW9 ought to be accepted at their face value is a fact that none of the three accused persons made any exaggeration or false claims with regard to the visit of accused persons to their house on 08.10.2008. If they were to tell a lie and falsely implicate the accused persons, nothing stopped them from making a false claim that accused persons demanded bribe from them on 08.10.2008. I, therefore, hold that prosecution has proved the factum of demand of bribe on 05.11.2008 from complainant Devender.
(iii) Whether there was demand of bribe by accused Suresh and acceptance of Rs.4,000/ by accused Dilbagh, at the time of trap on 06.11.2008?
12.1 To prove the factum of demand of bribe and acceptance of Rs.4,000/ at the time of trap on 06.11.2008, prosecution relies upon the testimony of Devender (PW9) and panch witness Bhagirath Prasad State Vs. Suresh Kumar Etc. Page 27 of 43 28 (PW5). PW9 has deposed that on reaching the office of Slum and J.J. Department, he met accused Suresh and Dilbagh. Accused Suresh asked him to give the money. He asked him to talk to accused Umed on telephone. Suresh, thereafter, made a phone call to Umed and witness also spoke to Umed for a moment; thereafter took out treated GC notes from his pocket and gave the same to accused Suresh, who instructed him to hand over the same to accused Dilbagh. Dilbagh accepted the same in his left hand. Panch witness thereafter gave the predetermined signal. On being crossexamined by Sh.B.S.Rana, Adv. for accused Suresh, he denied the suggestion that he did not meet accused Suresh on 06.11.2008 or that he had not handed over bribe money to accused Dilbagh on the asking of Suresh. He also denied the suggrstion that accused Suersh had not demanded bribe from him on 06.11.2008. Sh.Yogesh Verma, ld. counsel on behalf of accused Umed demonstrated that witness has improved upon his statement made to Police regarding the telephonic talk by him with Umed on 06.11.2008. On being cross examined by counsel for accused Dilbagh, he stated that Suresh and Dilbagh were sitting with one more person in a room, which was 10 ft. x 12 ft. in size. There were 2 tables and 34 chairs in the said room. They were both on separate tables about 5 ft. / 6 ft. away. He did not know if the said third person was Radhey Singh - peon of Slum and J.J. Department.
State Vs. Suresh Kumar Etc. Page 28 of 43 29 12.2 Bhagirath Prasad (PW5) has also deposed in similar terms as Devender (PW9). He also deposed that they both entered room no.8, where accused Suresh and Dilbagh were present. On seeing the complainant, accused Suresh had enquired if he had brought the money. Complainant, then, asked Suresh to talk to Umed. Suresh, then, made a phone call to Umed and thereafter Suresh asked the complainant to hand over the bribe money to Dilbagh. Accused Dilbagh accepted bribe money in his left hand. Witness, then, gave the signal to the raiding team. On being crossexamined by counsel for Dilbagh, he reiterated that Suresh enquired from the complainant as to whether he had brought the money. The room was 10 ft. x 12 ft. in dimension. There were 3 tables and 3 chairs in the room. Dilbagh and Suresh were sitting when he entered the room. One 4th class employee was also present. On being crossexamined by Sh.Verma, ld. counsel, he deposed that when complainant entered the room, accused Suresh enquired about the money, complainant told him to talk to accused Umed and, thereafter, Suresh made a phone call to Umed on mobile phone. He further deposed that he did not know as to with whom Suersh actually talked and the number on which Suresh had made a phone call.
12.3 The study of afore noticed two statements indicates complete consistency, corroboration and harmony in the versions of both the witnesses. They have both described the room size State Vs. Suresh Kumar Etc. Page 29 of 43 30 consistently. They have both described presence of one person other than the accused persons in the room. They have both described the accused persons to be sitting. They have both deposed that accused Suresh asked the complainant if he had brought the money. They have both deposed that on this query being made complainant asked Suresh to speak to Umed and Suresh then made a phone call to Umed, whereafter complainant extended the treated GC notes, which were indicated by the Suresh to be handed over to Dilabgh and Dilbagh accepted the same in his left hand. The only inconsistency in the statement of these two material witnesses is about complainant also speaking to Umed on phone. Apparently, this part of statement of complainant is an improvement over his statement u/sec.161 Cr.P.C. However, it can be ignored as an attempt by the complainant to embellish and embroider his testimony. In Ugar Ahir Vs. State of Bihar reported as AIR 1965 Supreme Court 277, Hon'ble Supreme Court held that exaggeration and embroideries are to be separated from the testimony of complainant. His statement can not be disbelieved for this minor variation. The argument of ld. defence counsel that Call Details Record of such a phone call has not been proved and there is no evidence that the phone call was actually made between accused Suresh and Umed; does not carry any weight. Both the witnesses are consistent that complainant asked Suresh to make a phone call to Umed and the call was made. Now, whether this call was made by Suresh to Umed or State Vs. Suresh Kumar Etc. Page 30 of 43 31 to some other person is not a material fact to disbelieve the consistent description of the sequence of events by both the witnesses. Failure of IO to collect the Call Details Record or not to rely upon the same, would not cause any damage to the absolute consistency in the statements of both the witness. I, therefore, find not an iota of doubt in the evidence of aforesaid two witnesses, as regards the demand and acceptance of bribe, at the time of trap. I, therefore, hold that prosecution has proved beyond reasonable doubt that at the time of trap on 06.11.2008, accused Suresh demanded bribe from complainant and accused Dilbagh accepted the same, on the asking of accused Suresh. Reliance placed upon law laid down Trilok Chand Jain's case ( supra) is misplaced. In the reported case, labours who collected bribe on behalf of the Inspector had no knowledge about the nature of money collected by him and was held to be an innocent carrier. In the present case Dilbagh Singh was very much aware of the nature of amount handed over to him, as discussed above.
12.4 Another important factor to be noticed in this part of the prosecution case is that accused Suresh is not deposed to have demanded any specific amount or discussed any other facts regarding the motive and purpose of demand. There is no indication that accused Suresh or Dilbagh did not know the complainant earlier or there was any disconnect between them and the complainant with regard to the purpose of his visit. Absence of any formal or preliminary questions State Vs. Suresh Kumar Etc. Page 31 of 43 32 being asked by accused persons from complainant establishes that there had been a previous meeting between complainant and accused persons. This gives credence to the complainant's version regarding his meeting with accused on 05.11.2008 and with all the accused persons on 08.10.2008. Had the accused Suresh and Dilbagh not been aware of the purpose of visit of complainant or the purpose of his handing over the money; they would have asked him interrogatory questions or other formal questions for the purpose of his visit. I, therefore, hold that demand and acceptance of bribe amount by Suresh and Dilbagh was in furtherance of their conspiracy with other two accused persons namely Hemant and Umed. Reliance placed upon law laid down Banarsi Dass's case ( supra ) is misplaced. In the reported case, there is no evidence of demand and acceptance of bribe. As discussed above in the present case, demand and conscious acceptance is established beyond reasonable doubt.
(iv) Whether treated GC notes of Rs.4,000/ were recovered from the possession of accused Dilbagh?
13.1 To prove recovery of treated GC notes from the possession of accused Dilbagh, reliance has been placed upon the testimony of Devender (PW9), Bhagirath Prasad (PW5) and Inspector Avinash Sharma (PW13). PW5 & PW9 have deposed that on money being accepted by Dilbagh, predetermined signal was given by panch State Vs. Suresh Kumar Etc. Page 32 of 43 33 witness, on which raiding party entered the room of the accused persons. PW5 has further deposed that raid officer disclosed his identity and on seeing the bribe money in the hand of accused Dilbagh directed him to recover the same. He recovered the money from the hand of accused Dilbagh. Srl. Numbers of recovered treated GC notes were compared with the Srl. Numbers mentioned in preraid report, which matched and treated GC notes were taken into possession. Left hand of accused Dilbagh was washed in Sodium Carbonate solution, which turned pink. Witness reiterated this part of his testimony on being crossexamined by counsel for accused Dilbagh. He deposed that the door of the room was kept open when proceedings were being done. Persons were standing at the door. Raid Officer had carried with him the bottles. Water was arranged from the office. Complainant's brother was not in the room either at the time of incident or at the time of subsequent proceedings.
13.2 Devender (PW9) has also deposed that on recovery of bribe money from the left hand of accused Dilbagh, the Srl. Numbers were compared and found to be matching. Left hand of accused Dilbagh was washed in some water type solution, which turned pink. On being crossexamined by counsel for accused Dilbagh, he stated that his brother had not accompanied the raiding team. He denied the suggestion that no recovery was effected from accused Dilbagh. State Vs. Suresh Kumar Etc. Page 33 of 43 34 13.3 Inspector Avinash Sharma (PW13) has deposed that panch witness gave predetermined signal at 11:40 AM and he reached the spot and on identification of panch witness recovered GC notes, which were compared with prerecorded Srl. Numbers in the preraid report and were found to be matching. Left hand wash of accused Dilbagh was taken. FSL Report Ex.PW16/F has opined the left hand wash sent for examination at FSL to be containing phenolphthalein powder.
13.4 From the evidence as noticed above, this court comes to an opinion that on predetermined signal given by Bhagirath Prasad Panch Witness, raiding team arrived. Some currency notes were recovered from the left hand of accused Dilbagh; on comparison with the preraid report, which were found to be the same currency notes, which had been brought by the complainant and treated with Phenolphthalein Powder. FSL Report Ex.PW16/F finds the hand wash of accused Dilbagh to be containing phenolphthalein powder. Thus, the oral testimony of PW5, PW9 & PW13, as regards the recovery of treated GC notes from the possession of accused Dilbagh is corroborated by preraid report, which records the Srl. Numbers of those GC notes, which were in possession of complainant prior to raid and the FSL report. Thus, I hold that prosecution has proved beyond reasonable doubt that GC notes of Rs.4,000/, which complainant had State Vs. Suresh Kumar Etc. Page 34 of 43 35 brought and were treated with phenolphthalein powder prior to trap, were recovered from the possession of accused Dilbagh. 14.1 Prosecution case is also challenged by Sh. Yogesh Verma, ld. defence counsel on the ground that complainant is a builder, who had been in partnership with one Prithvi Raj Bhasin. Said Prithvi Raj Bhasin lost one litigation with respect to a property case on a report submitted by accused Umed. Prithvi Raj Bhasin had, therefore, threatened to implicate Umed Singh in a case. This argument is sought to be proved from the oral testimony of evidence of Brijmohan Sethi (DW4) and Rajesh Uppal (DW5). They have deposed that complainant Devender & Prithvi Raj Bhasin were partners and Devender implicated accused Umed on the asking of his partner. In my opinion oral testimony of both these witnesses, regarding partnership of complainant Devender and Prithvi Raj Bhasin can not be accepted. Moreover, the alleged report by accused Umed, which had gone against the interest of Prithvi Raj Bhasin or the court order passed thereon has also not been proved in defence. The affirmative prosecution evidence of conspiracy between accused Umed and other accused persons can not be disbelieved only on oral testimony of defence witnesses, as discussed above. Reliance placed upon law laid down in C.P. Rao's case ( supra ) is wrongly placed.
State Vs. Suresh Kumar Etc. Page 35 of 43 36 14.2 It is next argued by Sh.Yogesh Verma, ld. counsel that accused Umed Singh had gone for site inspection to Patparganj, Nand Nagari, Jhilmil Colony i.e. East Zone on 08.10.2008 in post noon session and, therefore, could not have been present in West Delhi, at the time of alleged visit to the house of complainant party. This aspect has already been briefly discussed in para 10.3 above. A perusal of attendance register Ex.DW7/A reveals Umed Singh to have signed the attendance register on 08.10.2008 both for his arrival and departure. The outdoor duty register Ex.DW7/B does record Umed Singh to have been deputed at 12:00 Noon for site inspection in East Zone. However, in the absence of any evidence that he actually went to East Zone, the plea of alibi can not be said to have been proved. No site inspection report dated 08.10.2008 for the areas of Patparganj, Nand Nagri or Jhilmil Colony has been placed on record by the defence. The fact of Umed Singh being on leave on 06.11.2008 for viral fever makes no material damage to the case of the prosecution. It is not the case of the prosecution that Umed Singh was in office on 06.11.2008. As per the case of the prosecution, accused Suresh made a phone call to Umed at the time of trap. It is not the case of the defence that accused Umed was not in a position to have accepted and received any phone call during his absence for alleged viral fever.
State Vs. Suresh Kumar Etc. Page 36 of 43 37 15.1 Another major challenge to the prosecution case is that the proceedings were not carried out at office of Slum & J.J. Department. Accused Suresh, Dilbagh along with one Radhey were taken away to PS ACB immediately after being apprehended. Referring to the testimony of Suresh Kumar (DW1) and the office notings Ex.DW1/A also proved as Ex.PW3/D by K.K.Bhardwaj (PW3), it is argued that K.K.Bhardwaj made an office note that Radhey Singh - Bailiff had been taken away by officials of PSACB, Delhi and that at about 02:00 PM, he received a call from R.K.Dass - Personal Assistant to Addl. Commissioner conveying that Umed Kanoongo and Kanwar Pal - Patwari were also called at PS ACB. Accordingly, K.K.Bhardwaj met DCP, PSACB, who directed him to send Umed Singh and Hemant Kumar to PSACB on 07.11.2008. Nagender Prasad (DW1) identified the noting on the basis of signatures of K.K.Bhardwaj - Tehsildar. On being crossexamined by Ld. Addl. PP, the witness deposed that he had no personal knowledge about the case and he is deposing on the basis of report. Radhey Singh (DW2) on being cross examined by Ld. Addl. PP deposed that he did not inform his immediate superior that he was illegally picked up by officials of PS ACB and detained in the Police Station till 2.00 to 3.00 PM. Even IO/Inspector Nand Kumar (PW16) was not confronted with the note Ex. PW3/D/ Ex/DW1A of K.K. Bhardwaj (PW3). It has next been argued State Vs. Suresh Kumar Etc. Page 37 of 43 38 by Ld. defence counsel that K. K. Bhardwaj (PW3) vide his note Ex. PW3/D2 informed his superior that accused Dilbagh Singh, Suresh Kumar and one Radhey Singh had been taken away by some persons posing as officials of PS ACB, Delhi and that at 2.00 PM he was directed to send Umed ( Kanoongo) and Kanwar Pal ( Patwari) to PS ACB and on his meeting with DCP, PS ACB he was directed to send Umed Singh and Hemant Kumar to him on 7.11.2008. Surprisingly, defence being in possession of the aforesaid note chose not to confront the Raid Officer/Inspector Avinash Sharma and IO Naresh Kumar with the aforesaid note. It was not put to the RO or the IO that they had illegally picked up one Radhey Singh and that they had left Slum & JJ Department at 11.30 AM. An office note prepared by Departmental superior of the accused persons and not put to the RO and IO, cannot be read in evidence; as no opportunity was afforded to the RO and IO to explain the averments made in the said office note. 15.2 Sh. Yogesh Kumar Verma, Advocate has further argued that accused Hemant, vide his note dated 21.10.2008, approved by accused Umed on 23.10.2008 had reported that Slum & JJ Department was not concerned with the land in dispute. Having reported in favour of the complainant party, accused persons had no occasion to demand bribe. Sh. Verma has placed reliance upon law laid down in Rajkishore's case (supra). I have given my thoughtful consideration to the argument and State Vs. Suresh Kumar Etc. Page 38 of 43 39 judgment relied upon. In the cited judgment, complainant was disbelieved as his house had already been electrified, for which the demand was alleged. In the present case, the demand is alleged to be for giving a favourable report. Thus, on the first look the situation seems to be covered in the law laid down in Rajkishore's case (supra) but a deeper look reveals that complainant party had no information and no access to the office notings made by accused persons in their files. Written statement in the civil suit had not been filed by the Slum & JJ Department. The complainant party, thus, had no occasion to know the stand which the Slum & JJ Department would take in the suit filed by Sadaram. Similarly the fact that complainant party in their written statement had pleaded that Slum & JJ Department had no concern with the land in dispute, would also not be covered in cited judgment. Complainant party might be very clear of the factual situation that Slum & JJ Department had no concern with the land in dispute, but the state of mind of a litigant can always be exploited by another party to the lis. The accused persons were apparently taking advantage of this state of mind of the complainant party and threatening them of adverse report. I, therefore, reject this argument of Sh. Verma. Similarly, reliance placed upon law laid down in Hari Singh Yadav (supra) is wrongly placed.
State Vs. Suresh Kumar Etc. Page 39 of 43 40 16 For the reasons discussed in paras 10 to 15 above, I am of the considered opinion that prosecution has proved the charges against all the accused persons beyond reasonable doubt. I, therefore, hold that prosecution has proved beyond reasonable doubt that all the accused persons visited the house of complainant party on 08.10.2008 and threatened them of filing adverse report in the suit instituted by Sadaram. Complainant, thereafter, met accused Suresh on 05.11.2008, when demand of Rs.10,000// Rs.20,000/ was made, as gratification other than legal remuneration, as motive or reward for showing favour or disfavour in discharge of official functions, in furtherance of criminal conspiracy of all the accused persons. On 06.11.2008, accused Suresh and Dilbagh obtained Rs.4,000/ from complainant, as pecuniary advantage without any public interest, in furtherance of criminal conspiracy with the remaining two accused persons. All the accused persons are accordingly convicted for the offences punishable u/sec.120B of IPC, u/sec.7 of the PC Act r/w/sec.120B of IPC and u/sec.13 (i) (d) of the PC Act r/w/sec.120B of IPC. Ordered accordingly.
Announced in the open Court (NAROTTAM KAUSHAL)
on 25.09.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Suresh Kumar Etc. Page 40 of 43
41
IN THE COURT OF SH. NAROTTAM KAUSHAL
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
State
Versus
1.Suresh Kumar,
S/o Sh. Sunder Ram,
R/o F 9/91, Sector 15,
Rohini, Delhi.
2.Dilbagh Singh,
S/o Sh. Hari Singh,
R/o 837/30 Gali No. 2,
Vikas Nagar, Kakroi Road,
Sonepat, Haryana.
3.Umed Singh,
S/o Sh. Rameshwar Dass,
R/o 65/1, Extension 2C,
Lokesh Gali, Nangloi,
Delhi41.
4.Hemant Kumar,
S/o Kamta Prasad,
R/o X1115, Shyam Gali,
Rajgarh Colony,
Gandhi Nagar, Delhi.
Corruption Case No. : 5/2014
FIR No. : 35/2008
Case Identification No. : 02401R0321682014
Police Station : Anti Corruption Branch
Under Section : 7/13 (1) (d) of Prevention
of Corruption Act, 1988 &
120B IPC
ORDER ON SENTENCE
1.1 Vide Judgment dated 25.09.2014, all the convicts have been
held guilty for the offence punishable u/sec. 120B IPC and section 7 of the PC Act r/w section 120B IPC and section 13(i) (d) of the PC Act punishable State Vs. Suresh Kumar Etc. Page 41 of 43 42 u/s 13 (2) PC Act r/w section 120B IPC with respect to demand and acceptance of illegal gratification from Devender Singh. 2.1 Shri Yogesh Verma, Ld. Counsel for convict Umed Singh has prayed for a lenient approach. It is submitted that he is 50 years old. His 47 years old wife and 80 years old father are both ailing. His sons aged about 21 years and 18 years are unemployed. Thus, he has family of four members who are dependent upon him. He stands suspended from service and has no other source of income.
2.2 Shri Mahinder Kaushik, counsel for convict Suresh has submitted that he is 50 years old. His two sons are studying and dependent upon him. On behalf of convict Hemant it is submitted that his children are of marriageable age. His elder and younger brothers have expired. Family of brothers is also dependent upon him. On behalf of convict Dilbagh it is submitted that he is 52 years old. He has three children, wife and parents aged about 80 years dependent upon him.
2.3 It is further submitted on behalf of the convicts that they are all under suspension and have no other source of income. Their custody would be a punishment to their dependents as well. It is, therefore, prayed that lenient approach be adopted.
3. Shri B.B. Bhasin, Ld. Additional PP for State has prayed for stringent sentence. It is submitted that reformatory theory of sentencing is not attracted for offence which involve corruption by public servants. The mitigating circumstances argued by Ld. defence counsel have no relevance. They do not deserve any lenient approach. Imposition of high fine has also been prayed, to serve as deterent.
4. I have heard the Ld. counsels. Considering the family State Vs. Suresh Kumar Etc. Page 42 of 43 43 circumstances of the convicts as noticed above, this court is inclined to take a lenient view. I am of the opinion that interest of justice shall be served by sentencing all the convicts to undergo rigorous imprisonment for a period of two years each, for the offence punishable under section 120B IPC. They shall also be liable to pay a fine of Rs. 5,000/ each and in default of payment of fine, they shall all undergo simple imprisonment for a period of three months, each. They shall also undergo rigorous imprisonment for a period of two years each, for the offence punishable u/s 7 of the PC Act r/w section 120B IPC and shall also be liable to pay a fine of Rs. 5,000/, each and in default of payment of fine, they shall undergo simple imprisonment for a period of three months each. As regards the offence punishable u/s 13 (2) of the PC Act r/w section 120B IPC all the convicts shall undergo rigorous imprisonment of three years and are also held liable to pay a fine of Rs. 5,000/ each and in default of payment of fine, they shall undergo simple imprisonment for a period of three months each.
5. All the sentences awarded to each of the convicts shall run concurrently. All the convicts shall also be entitled to benefit of section 428 Cr PC.
File be consigned to Record Room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 01.10.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
State Vs. Suresh Kumar Etc. Page 43 of 43