Delhi District Court
State vs . 1. Ajit Singh on 10 May, 2013
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 52/12
Unique Case ID : 02401R0039202011
STATE VS. 1. AJIT SINGH
S/o Late Sh. Pritam Singh
R/o U167, Gali No. 7, West Ghonda,
PS Usmanpur, Delhi.
2. RAJ KUMAR
S/o Sh. Shiv Charan Singh
R/o H.No. 545, Tilak Ram Colony,
Loni, Ghaziabad (U.P)
3. SUMITRA
W/o Late Sh. Ram Kumar
R/o 1067, Lohia Gali No. 5,
Babarpur, Shahadara, Delhi.
FIR NO. : 17/2008
U/S : 7/8/13 of Prevention of Corruption
Act, 1988
P.S. : Anti Corruption Branch, Delhi
C.C. No. 52/12 Page No. 1 of 58
Date of Institution 18.01.2011
Judgment reserved on 07.05.2013
Judgment delivered on 10.05.2013
JUDGMENT
1. The precise case of the prosecution is that on dated 18.06.2008 the complainant Tahir Hussain S/o Anwar Hussain came to Anti Corruption Branch and got lodged his Complaint Ex.PW1/A before the Inspector V.K.Singh Raid Officer/PW29 in the presence of Panch witness PW4/Lajpat Rai regarding the demand of bribe by the accused persons for not arresting two daughters of the complainant in a case pending in CAW Cell, Nand Nagri, Delhi as against the complainant and his family members and for getting the said case proceedings closed.
2. The gist of the said complaint is that the complainant had got married his son Tauqir Hussain with Shabnam Jahan D/o Masi Ullaha in the year 2005 and said Shabnam Jahan had gone back to her parental house after 4 months of marriage and filed complaint regarding dowry harassment against the complainant and his family members in CAW Cell, Nand Nagri after about 8 months of marriage C.C. No. 52/12 Page No. 2 of 58 and said complaint was pending before ASI Ajit Singh of CAW Cell, Nand Nagri. ASI Ajit Singh and Ct.Raj Kumar had demanded Rs. 5000/ from the complainant for dropping the name of two daughters of the complainant from the said case proceedings. Thereafter, the accused Sumitra met complainant outside said CAW Cell and by claiming herself as police personnel and closely known to accused ASI Ajit Singh and Ct. Raj Kumar, demanded Rs.20,000/ which was settled for Rs.15,000/ for getting closure of the said case proceedings. Thereafter, complainant paid Rs.15,000/ to accused Sumitra which was paid by her to ASI Ajit Singh and Ct. Raj Kumar in his presence. But since the compromise between the parties could not be materialised and case has been registered, said accused Ajit Singh and Raj Kumar had been demanding Rs.10,000/ for getting their anticipatory bail. Therefore, the complainant went to the Office of Anti Corruption Branch on 17.06.2008 and stated about the same, on which one official from AC Branch had accompanied the complainant to the house of accused Sumitra and put one recording device in the pocket of the complainant and in the conversation, the accused Sumitra admitted about giving Rs.10,000/ to accused Ajit Singh and Raj Kumar. The complainant had also gone to CAW Cell, Nand Nagri for recording his conversation with accused Ajit Singh C.C. No. 52/12 Page No. 3 of 58 and Raj Kumar and met accused Raj Kumar who stated that accused Ajit Singh had gone to court and Raj Kumar demanded further amount of Rs.10,000/ which was settled for Rs.6500/. Thereafter, complainant came back to the Office of AC Branch and talked to accused Ajit Singh by phone in which he demanded bribe and asked him to bring the same in the evening and said conversation was got recorded. Since the complainant was against giving of bribe, he went to Anti Corruption Branch and got his complaint lodged before the Inspector V.K.Singh, Raid Officer PW29 in presence of Panch witness Lajpat Rai, PW4.
3. The further case of the prosecution is that the complainant has produced 5 GC notes of Rs. 1000/ each before the Raid Officer PW29 Inspector V.K.Singh who noted down the serial number of said GC notes in the preraid proceedings Ex.PW1/B and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW29 gave demonstration to the Panch witness, complainant by getting touched the right hand of the Panch witness with that treated currency notes and wash of the right hand of the Panch witness in the colourless solution of sodium carbonate which turned into pink. Thereafter, said GC notes were handed over to the complainant and C.C. No. 52/12 Page No. 4 of 58 Panch witness was instructed to remain close with the complainant and to overhear the conversation between the complainant and the person demanding the bribe amount and to give signal by waiving his hand twice over his head after being satisfied that the bribe has actually been given. In the meantime ASI Karnail Singh produced one CD before the Raid Officer and said CD was played on computer and it was found containing the conversation regarding the bribe between the complainant and the accused persons. Said CD was sealed and taken into possession by the Raid Officer.
4. That thereafter, PW29 Raid Officer along with complainant, Panch witness, Inspector Yashpal Singh and other members of the raiding party left Anti Corruption Branch in two vehicles and reached near CAW Cell, Nand Nagri. Vehicles were parked at some distance, Inspector Yashpal Singh alongwith the Drivers remained in the vehicles. Complainant and Panch witness proceeded at the Office of accused Ajit Singh at First Floor of CAW Cell and the members of the Raiding team took suitable position.
5. The further case of the prosecution is that after some time on receiving the predetermined signal, Raiding team reached at the C.C. No. 52/12 Page No. 5 of 58 spot where Panch witness informed that the accused Ajit Singh had demanded and accepted Rs.5000/ from the complainant and kept the said amount in the left upper pocket of his wearing shirt. Thereafter, on the instructions of Raid Officer, Panch witness recovered the said GC notes from the upper left pocket of the shirt of accused Ajit Singh and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW1/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW1/E. The wash of right hand of the accused Ajit Singh was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of VKS and were marked as RHWI & RHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. The wash of left upper pocket of the shirt of the accused Ajit Singh was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of VKS and were marked as LSSPWI & II by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Those bottles, pullanda of shirt of accused Ajit Singh and sample seal were taken into possession vide Seizure Memo C.C. No. 52/12 Page No. 6 of 58 Ex.PW1/D. Raid Officer also drawn up the post raid proceedings which is Ex.PW1/C and prepared rukka and sent the same through HC Satya Dev to PS Anti Corruption Branch for registration of the case and copy of the FIR is Ex.PW5/A.
6. The further case of the prosecution is that the Raid Officer called Inspector Yashpal Singh PW 27/IO at the spot and handed over him the custody of the accused Ajit Singh, case property and relevant documents etc. for purpose of Investigation. I.O. took up the Investigation, prepared the Site Plan Ex.PW27/A. IO interrogated the accused Ajit Singh and arrested him vide Arrest Memo Ex.PW1/I and conducted his personal search vide Memo Ex.PW1/K and recorded his Disclosure Statement Ex.PW1/M. Thereafter, IO searched for accused Raj Kumar but he was not found available. Thereafter, IO along with Raiding team reached at Lohia Colony and arrested accused Sumitra vide Arrest Memo Ex.PW1/J and conducted her personal search vide Memo Ex.PW1/L and recorded her Disclosure Statement Ex.PW1/N. Thereafter, said accused Sumitra and Ajit Singh were medically examined and were put in the lock up and case property was deposited with MHC(M). IO recorded the statement of complainant and Panch witness and other relevant witnesses. During C.C. No. 52/12 Page No. 7 of 58 the course of Investigation, accused Raj Kumar surrendered on 29.07.2008 in Police Station and was arrested vide Arrest Memo Ex.PW3/B and conducted his personal search vide Memo Ex.PW3/A and recorded his Disclosure statements Ex.PW3/C and Ex.PW6/A. During course of Investigation, IO seized the copy of the CD as prepared by SI Karnail Singh vide Seizure Memo Ex.PW1/G and subsequently on playing of said CD, PW/Inspector Vineeta Tyagi, Incharge of CAW Cell identified the voice of accused Ajit Singh and Raj Kumar and SI Bahuri Singh of Security Unit identified voice of accused HC Sumitra and Observation Memos were prepared in this respect. During the course of Investigation, relevant exhibits were sent to FSL, Rohini and FSL Report Ex.PW27/B and Ex.PW27/E were collected. During the course of Investigation, Notices were served upon the accused persons to give their sample voice for comparison but they refused to give sample voice in this respect. During course of Investigation, IO obtained Bio data of accused Ajit Singh Ex.PW20/A, Bio data of accused Raj Kumar Ex.PX and Bio data of accused Sumitra Ex. PY. IO also obtained Sanction Orders for prosecution as against accused Ajit Singh Ex.PW26/A, accused Raj Kumar Ex.PW21/A and accused Sumitra Ex.PW13/A. IO on recording the statement of the witnesses and after completion of the C.C. No. 52/12 Page No. 8 of 58 Investigation, prepared the chargesheet and filed in the court.
7. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 120B IPC r/w Section 7/13 of Prevention of Corruption Act and U/S 7 and 13 (2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 was framed against all the accused persons on 05.11.2011 to which all accused pleaded not guilty and claimed trial.
8. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 29 prosecution witnesses namely Tahir Hussain, complainant as PW1, HC Satyadev, a formal witness as PW2, HC Devappa, a formal witness as PW3, Lajpat Rai, Panch witness to the Raid Proceedings, a material witness as PW4, HC Deena Mani, the then Duty Officer, PS AC Branch, a formal witness as PW5, Sushil Kumar, a formal witness as PW6, Retd. SI Bahuri Singh, a formal witness as PW7, SI Ramesh Kumar, a material witness as PW8, HC Neki Ram, the then MHC(M), PS Civil Lines, a formal witness as PW9, Naresh Chand, a formal witness as PW10, Veerpal, a formal witness as PW11, Anand Kishor Meena, a formal witness as PW12, David Lalrin Sanga, the then DCP, Security (HQ), C.C. No. 52/12 Page No. 9 of 58 Delhi, Sanctioning Authority as against accused Sumitra as PW13, Rakesh Kumar Tokas, a formal witness as PW14, HC Suraj Pal, a formal witness as PW15, HC Jitender Kumar, the then MHC(M), PS Civil Lines, a formal witness as PW16, Vijay Pal Dangi, a formal witness as PW17, Ashok Kumar Goyal, a formal witness as PW18, Tarun Paul, a formal witness as PW19, ACP Syed Shakir Hasan, a formal witness as PW20, Ram Niwas Meena, the then DCP, 3rd Batallion, DAP, Vikas Puri, Sanctioning Authority as against accused Raj Kumar as PW21, Retd. ACP Salma Khan, a formal witness as PW22, Karnail Singh as PW23, Inspector Vineeta Tyagi, the then Incharge, CAW Cell, North East as PW24, Ct.Ravinder, a formal witness as PW25, S.S.Yadav, the then DCP, North East District, Delhi, Sanctioning Authority as against accused Ajit Singh as PW26, Inspector Yashpal Singh/IO as PW27, Dr.C.P.Singh, Assistant Director (Physics) from FSL, Rohini, Delhi as PW28 and Inspector V.K.Singh, Raid Officer as PW29.
9. After closure of the PE, statement of accused under Section 313 Cr.P.C. were recorded in which the accused persons denied about any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case having no C.C. No. 52/12 Page No. 10 of 58 concern with the alleged offence.
10. I have heard Final Arguments as addressed by Sh. Yogesh Kumar Verma, Adv. Ld. Counsel for the accused Ajit Singh, Sh.G.S.Rana, Adv. Ld. Counsel for accused Sumitra Devi and Ms. Surinder Kaur, Adv. Ld. Counsel for accused Raj Kumar and Sh. Maqsood Ahmad, Ld. Addl. PP for the State and perused the relevant record.
11. It is submitted by Ld. Counsel for the accused Ajit Singh that said accused has neither demanded nor accepted any bribe from the complainant and prosecution has failed to prove about the said aspects and hence, said accused deserves to be acquitted. It is also added by Ld. Defence Counsel that PW1/Tahir Hussain, complainant has turned hostile on various aspects and has not supported the case of the prosecution and has not deposed anything as regards demand, acceptance and recovery of bribe as against this accused and hence, nothing can be drawn from deposition of PWs as against this accused. It is further added by Ld. Counsel that though there is allegation of demand of bribe as against accused Ajit Singh through phone from the complainant but as no phone call detailed Record was produced C.C. No. 52/12 Page No. 11 of 58 by the prosecution, the CD could not be properly proved and cannot be considered. It is further added by Ld. Counsel that PW4/Lajpat Rai Panch witness has also not supported the case of the prosecution on various aspects and was cross examined by Ld. Addl. PP in this respect. It is further added by Ld. Counsel that said PW4/Panch witness has clearly stated that he could not hear the conversation between the complainant and accused Ajit Singh. It is further added by Ld. Counsel that even otherwise there are several contradictions in the deposition of various PWs which falsify the case of the prosecution. It is further added by Ld. Counsel that even otherwise Panch witness is a tutored witness and his deposition cannot be treated as trustworthy and reliable. It is further added by Ld. Counsel that there is no entry regarding taking of the recording device and returning of the same by PW8 SI Ramesh Kumar and same falsify regarding stand of record of conversation between the accused and the complainant. It is further added by Ld. Counsel that there are several lapses on the part of the Raid Officer as he has started the Pre raid proceedings without verifying the CD, and he has not joined Anil, friend of the complainant in the Raid Proceedings. It is also added by him that despite availability of independent public persons at the spot, non joining of any of them in raid proceedings is fatal for the case of C.C. No. 52/12 Page No. 12 of 58 prosecution. It is also added by Ld. Counsel that as the Raid Officer is an interested witness for success of his raid and therefore, his deposition cannot be treated as trustworthy. It is further added by Ld. Counsel that there is nothing on record that this accused has entered into any criminal conspiracy with coaccused to demand and accept bribe from the complainant. Thus, Ld. Counsel has added that as the prosecution has failed to establish its case against accused Ajit Singh regarding demand, acceptance and recovery of bribe against this accused, hence, this accused deserves to be acquitted. Ld. Counsel in support of his contention referred and relied upon following judgments: AIR 1979 SC 1408, AIR 1976 SC 739, AIR 1995 SC 1437, 1974 (3) SCC 595, 2013 (1) Crimes 92 (SC), AIR 2010 SC 1589, 2009 (2) RCR (Criminal) 812, 2006 (1) CC Cases (SC) 124, 2006 (1) CC Cases 124, 2006 (1) SCC 401, 2005 (3) JCC 1677, 2002 Cr.L.J. 2787, AIR 2000 SC 3562, 1988 Cr.L.J. 756, 1980 SCC (Crl.) 121, 2011 (1) JCC 102, 2005 (1) JCC 230, 2008 (4) Crimes 137 and 2012 (1) CC Cases (SC) 197.
12. Similarly, it is submitted by Ld. Counsel for the accused Sumitra Devi that said accused is innocent and has been falsely implicated in this case. It is further added by him that this accused C.C. No. 52/12 Page No. 13 of 58 was not posted in CAW Cell, Nand Nagri but was posted at Security Unit and hence, there was no occasion to demand any bribe from the complainant for helping the complainant in the Dowry Complaint Case pending before CAW Cell, Nand Nagri and the accused was not competent to do so. It is further added by him that when the complainant had gone with his friend Anil Kumar in Anti Corruption Branch and had participated in the Raid Proceedings, he was not cited as a PW and the same falsify the case of the prosecution. It is further added by him that PW1/complainant who is an accomplice and has made several inconsistent statements and is not a reliable witness. It is further added by him that Panch witness has not deposed anything against this accused Sumitra. It is further added by him that as there is no departure and arrival DD entry of PW8/SI Ramesh Kumar for going with the complainant to the house of accused Sumitra on 17.06.2008 with recording device and as phone call detailed Record was not produced by the prosecution, the CD cannot be looked into. It is further added by him that there is nothing on record as against the accused Sumitra to enter into any criminal conspiracy with co accused to demand and accept any bribe from the complainant to help the complainant in the Dowry Complaint Case pending before CAW Cell, Nand Nagri. It is further added by him that no recovery of any C.C. No. 52/12 Page No. 14 of 58 bribe amount was made from this accused Sumitra. Thus, Ld. Counsel for accused Sumitra Devi urged for acquittal of this accused.
13. Similarly, it is submitted by Ld. Counsel for the accused Raj Kumar that said accused is innocent and has been falsely implicated in this case. It is further added by her that there is no evidence of any demand, acceptance or recovery of bribe as against this accused Raj Kumar. It is further added by her that even PW4/Panch witness has not deposed anything as against this accused Raj Kumar nor he was present at the spot. It is further added by her that even PW1/complainant in her cross examination admitted that the accused Raj Kumar never demanded any money from him but falsely added that he had demanded and accepted towards expenses Rs.6500/ from him. Thus, Ld. Counsel for the accused Raj Kumar urged for acquittal of this accused.
14. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 29 PWs have clearly established its case as against the accused persons and therefore, the accused persons deserve to be convicted for the charged offence. It is further added by Ld. Addl. PP for the State that no doubt PW1/complainant and C.C. No. 52/12 Page No. 15 of 58 PW4/Panch witness have turned hostile on certain aspects and were cross examined on behalf of the State, it does not mean that their deposition cannot be considered at all. It is further added by Ld. Addl. PP that the complainant on his sweet will has gone to Anti Corruption Branch and had lodged the Complaint Ex.PW1/A which is in his own handwriting and the Raid Officer has rightly taken action on the basis of said Complaint and the Raid was successful and the accused persons were arrested and subsequently chargesheeted. It is further added by Ld. Addl. PP that all the accused persons have refused to give their voice sample for the purpose of comparison and therefore, adverse inference can be drawn against the accused persons in this respect. It is further added by Ld. Addl. PP that even PW4/Panch witness has clearly deposed regarding giving of Rs.5000/ by the complainant to accused Ajit Singh who kept the same in his left pocket shirt and thereafter, said GC notes were recovered from said accused. It is further added by Ld. Addl. PP that the CD and the transcriptions were duly proved by the prosecution and there is no reason to keep them out of the consideration. It is further added by Ld. Addl. PP that there is no reason as to why PW1/complainant, PW4/Panch witness, PW27/Inspector Yashpal,IO, PW29 Inspector V.K.Singh, Raid Officer would falsely implicate the accused persons C.C. No. 52/12 Page No. 16 of 58 specifically when there is no previous enmity by them as against the accused. Ld. Addl. PP for the State has added that prosecution has been successful in establishing its case as against the accused persons for the charged offence and hence, the accused persons deserve to be convicted.
15. That during the course of argument, it is submitted by Ld. Counsel for the accused Ajit Singh that said accused has neither demanded nor accepted any bribe from the complainant and prosecution has failed to prove about the said aspects and hence, said accused deserves to be acquitted. It is also added by Ld. Defence Counsel that PW1/Tahir Hussain, complainant has turned hostile on various aspects and has not supported the case of the prosecution and has not deposed anything as regards demand, acceptance and recovery of bribe as against this accused and hence, nothing can be drawn from deposition of PWs as against this accused. It is further added by Ld. Counsel that though there is allegation of demand of bribe as against accused Ajit Singh through phone from the complainant but as no phone call detailed Record was produced by the prosecution, the CD could not be properly proved and cannot be considered. It is further added by Ld. Counsel that PW4/Lajpat Rai Panch witness has also C.C. No. 52/12 Page No. 17 of 58 not supported the case of the prosecution on various aspects and was cross examined by Ld. Addl. PP in this respect. It is further added by Ld. Counsel that said PW4/Panch witness has clearly stated that he could not hear the conversation between the complainant and accused Ajit Singh. It is further added by Ld. Counsel that even otherwise there are several contradictions in the deposition of various PWs which falsify the case of the prosecution. It is further added by Ld. Counsel that even otherwise Panch witness is a tutored witness and his deposition cannot be treated as trustworthy and reliable. Similarly, it is submitted by Ld. Counsel for the accused Sumitra Devi that said accused is innocent and has been falsely implicated in this case. It is further added by him that this accused was not posted in CAW Cell, Nand Nagri but was posted at Security Unit and hence, there was no occasion to demand any bribe from the complainant for helping the complainant in the Dowry Complaint Case pending before CAW Cell, Nand Nagri and the accused was not competent to do so. Similarly, it is submitted by Ld. Counsel for the accused Raj Kumar that said accused is innocent and has been falsely implicated in this case. It is further added by her that there is no evidence of any demand, acceptance or recovery of bribe as against this accused Raj Kumar. It is further added by her that even PW4/Panch witness has not deposed C.C. No. 52/12 Page No. 18 of 58 anything as against this accused Raj Kumar nor he was present at the spot. On the other hand, it is submitted by Ld. Addl. PP for the State that no doubt PW1/complainant and PW4/Panch witness have turned hostile on certain aspects and were cross examined on behalf of the State, it does not mean that their deposition cannot be considered at all. It is further added by Ld. Addl. PP that the complainant on his sweet will has gone to Anti Corruption Branch and had lodged the Complaint Ex.PW1/A which is in his own handwriting and the Raid Officer has rightly taken action on the basis of said Complaint and the Raid was successful and the accused persons were arrested and subsequently chargesheeted. It is further added by Ld. Addl. PP that all the accused persons have refused to give their voice sample for the purpose of comparison and therefore, adverse inference can be drawn against the accused persons in this respect. It is further added by Ld. Addl. PP that even PW4/Panch witness has clearly deposed regarding giving of Rs.5000/ by the complainant to accused Ajit Singh who kept the same in his left pocket shirt and thereafter, said GC notes were recovered from said accused.
16. In order to prove that the accused had demanded and accepted the bribe amount from the complainant, the prosecution is C.C. No. 52/12 Page No. 19 of 58 found to have examined PW1 Tahir Hussain/complainant, PW4 Sh. Lajpat Rai/Panch witness, PW27 Inspector Yashpal/IO and PW29 Inspector V.K.Singh/Raid Officer. PW4 Lajpat Rai, Panch witness has clearly deposed before the court that on dated 18.06.2008 he was on duty as a Panch witness in the Anti Corruption Branch and complainant Tahir Hussain had brought a complaint which was read over by him and was handed over to Inspector V.K.Singh by the complainant and said Complaint is Ex.PW1/A which bears his signature at point B. He further deposed that complainant delivered 5 GC notes of Rs.1000/ each to the Raid Officer/Inspector who gave demonstration of the same and same turned into pink colour. In his cross examination by Ld. Addl. PP, said PW4 has narrated about the PreRaid Report Ex.PW1/B which bears his signatures at point B. He has also deposed that one CD was taken into possession by Inspector V.K.Singh/Raid Officer vide Seizure Memo Ex.PW1/F which bears his signatures at point B. He further deposed that thereafter, he along with Inspector V.K.Singh, Inspector Yashpal, complainant and other members of the Raiding team left for raid and parked the vehicle near PS Nand Nagri and he along with complainant went inside PS Nand Nagri and other members of the Raiding team took suitable position. Said PW4 has further deposed as under: C.C. No. 52/12 Page No. 20 of 58 "Ajit Singh met us on the ground floor of PSNand Nagri. Thereafter, some talks took place between the Tahil Hussain and Ajit Singh. Both of them went on the first floor. I accompanied them to the first floor. Ajit Singh enquired from Tahir Hussain about my whereabouts. Tahir Hussain introduced me as his known. I sat a distance of about 1012 Feet. In the meantime, Tahir Hussain and Ajit Singh had some talks which I could not hear. I saw Tahir Hussain gave Rs.5,000/ to Ajit Singh and Ajit Singh kept the same in his left shirt pocket."
17. Said PW4 further deposed that on his giving predetermined signal, Raid Officer and other members of the raiding party reached the spot and thereafter, Raid Officer introduced himself and showed his ICard to accused Ajit Singh and the accused Ajit Singh himself took out the GC notes and handed over the same to Inspector V.K.Singh/Raid Officer and serial numbers of the said GC notes found tallied with the serial numbers as mentioned in Pre raid Report and he has identified the said GC notes as Ex.P3 to P7 and said GC notes were taken into possession vide Seizure Memo Ex.PW1/E which bears his signatures at point B. C.C. No. 52/12 Page No. 21 of 58
18. Said PW4 has also deposed about taking of hand wash of the accused but he do not remember as regards the shirt pocket wash but added that said washes turned into pink colour and were transferred into bottles which were sealed and taken into possession and identified said bottles as Ex.P8 to P11 which bears his signatures. Said PW4 also stated that the Arrest Memo of accused Ajit Singh Ex.PW1/I and Personal Search Memo Ex.PW1/K bears his signatures at point B. He has also identified his signatures on the Arrest Memo of accused Sumitra Ex.PW1/J and Personal Search Memo Ex.PW1/L. As said PW4 was found hostile on certain aspects, he has been cross examined by Ld. Addl. PP on behalf of the State. Said PW4 in his cross examination by Ld. Counsel for the accused Ajit Singh has reiterated regarding giving of money by the complainant to the accused Ajit Singh in CAW Cell as he has deposed in this respect as under: "We met accused Ajit Singh on the ground floor of PSNand Nagri who led us to the first floor after having some talks with Tahir Hussain. I was at a distance of 1012 Ft. away from the Ajit Singh when he was having talks with Tahir Hussain. It is wrong to suggest that I did not see the complainant giving money to accused Ajit Singh. Vol. As C.C. No. 52/12 Page No. 22 of 58 soon as the complainant gave money to accused Ajit Singh, I gave the predetermined signal. It is wrong to suggest that no money was paid to accused Ajit Singh in my presence nor I saw the complainant giving the same to accused Ajit Singh. Except Ajit Singh, complainant and myself, there was no other person present in the room on the first floor of PS Nand Nagri."
19. Said PW4/Panch witness in his cross examination by Ld. Counsel for the accused Ajit Singh has denied the suggestion that no recovery of the money was effected in his presence or that no Post Raid Proceedings took place at the place of raid. He has also denied the suggestion that all the documents were prepared in PS Anti Corruption Branch.
20. The material part of the deposition of PW4 Panch witness is found corroborated from the deposition of PW29 Inspector V.K.Singh Raid Officer. PW29 Inspector V.K.Singh, Raid Officer is found to have deposed regarding lodging of the complaint Ex.PW1/A by the complainant in the presence of Panch witness on dated 18.06.2008 and thereafter, the Preraid proceeding Ex.PW1/B was carried out by C.C. No. 52/12 Page No. 23 of 58 him. He has also deposed that in the meantime, SI Karnail Singh produced one CD which was played on computer and it was found containing the conversation regarding bribe between the complainant and the accused persons and said CD was seized and taken into possession vide Seizure Memo Ex.PW1/F. Said PW29 further deposed that he alongwith the complainant, Panch witness and other members of raiding team left Anti Corruption Branch in two vehicles and parked them at a distance of about 200 meters from the Office of CAW Cell, Nand Nagri. Inspector Yashpal along with the Driver remained in the vehicle. Thereafter, complainant and Panch witness went inside the Room of accused Ajit Singh at first floor of CAW Cell, Nand Nagri and Raiding team took suitable position. After some time, on receiving the predetermined signal, he along with the Raiding team reached at spot and Panch witness informed the him that the accused Ajit Singh had demanded and accepted bribe money of Rs.5,000/ from the complainant and kept the said amount in the upper left pocket of his wearing shirt.
21. Said PW29/Raid Officer further deposed that on his instruction Panch witness recovered the bribe amount of Rs. 5,000/ from the accused Ajit Singh and on checking, the numbers of the C.C. No. 52/12 Page No. 24 of 58 recovered GC notes found tallied with the numbers as noted in Pre raid Report. He also deposed that GC notes were seized vide Seizure Memo Ex.PW1/E bearing his signature at point C. He also deposed about taking of the wash of right hand and upper left pocket of shirt of accused Ajit Singh in colourless solution of sodium carbonate turning pink colour and transferred them into bottles RHWI, RHWII and LSSPWI & LSSPWII and sealed them and prepared two sample seals and taking into possession them vide Seizure Memo Ex.PW1/D which bears his signature at point B. He has also narrated about the Postraid proceeding Ex.PW1/C bearing his signature at point C. He has also deposed that he has prepared Rukka and sent the same through HC Satyadev for registration of the FIR and thereafter, called Inspector Yashpal at the spot and handed over him the recovered articles, the documents as prepared by him and custody of the accused Ajit Singh. Said PW29 has clearly identified said CD as Ex.P1, Shirt of accused Ajit Singh as Ex.P2 and 5 GC notes of Rs.1000/ each as recovered from accused Ajit Singh as Ex.P3 to P7 and four sealed bottles mark RHWI & II, LSSPWI & LSSPWII as Ex.P8 to P11. Said PW29/Raid Officer in his cross examination by Ld. Counsel for the accused Ajit Singh has denied the suggestion that no recovery was effected from accused Ajit Singh or that the accused Ajit Singh was C.C. No. 52/12 Page No. 25 of 58 taken to AC Branch immediately after his apprehension and all the documents were prepared in the Office of AC Branch. He has also denied the suggestion that the complaint was prepared on his dictation after the raid or that he has conducted the raid on the false complaint of the complainant. Said PW29 also denied the suggestion of Ld. Counsel for the accused Raj Kumar that he had asked the complainant to write the complaint after raid proceedings or that the complaint is not in the handwriting of the complainant.
22. So far as PW1 Tahir Hussain/complainant is concerned, he is found to have supported the stand of the prosecution partly and has turned hostile on certain aspects and has been cross examined by Ld. Addl. PP. Said PW1/complainant has deposed that his son was got married to Shabnam in the year 2005 and thereafter, said Shabnam did not want to return to matrimonial home and filed a complaint in CAW Cell, Nand Nagri against his family members and said complaint was being handled by accused Ajit Singh. He further deposed that on 24.04.2008 accused Sumitra met him and stated that she was also working in Police and knew Ajit Singh and demanded Rs.15,000/ for getting the matter settled through Ajit Singh on which he gave Rs.15000/ to said Sumitra. He further deposed that thereafter said C.C. No. 52/12 Page No. 26 of 58 accused Sumitra met him and demanded Rs.10,000/ more for giving it to accused Ajit Singh as Rs.15,000/ was not enough for the entire job. Said PW1/complainant further deposed that thereafter, on 17.06.2008, he went to AC Branch and narrated about the said demand and he was given a recording device and thereafter, he went to house of accused Sumitra and talked to her and had also talked with accused Ajit Singh and was informed by accused Ajit Singh that he had only received Rs.10,000/ as Rs.5000/ had been kept by accused Sumitra. He further deposed that he had lodged Complaint Ex.PW1/A which bears his signature at point A and produced GC notes of Rs. 5000/ at AC Branch which was treated with some powder. He also deposed that thereafter, he along with Panch witness went to the Room of accused Ajit Singh at CAW Cell, Nand Nagri and thereafter, he gave Rs.5000/ to accused Ajit Singh in the presence of Panch witness and thereafter, the Panch witness gave signal on which Inspector V.K.Singh arrived at the spot and apprehended accused Ajit Singh. In the cross examination by Ld. Addl. PP for the State, said PW1/complainant added that the Complaint Ex.PW1/A is in his hand and he has mentioned the correct contents therein. He also added that whenever he was called at CAW Cell, Nand Nagri, the accused Raj Kumar was accompanying accused Ajit Singh. He also admitted to be C.C. No. 52/12 Page No. 27 of 58 correct that in the Complaint Ex.PW1/A, he has mentioned that accused Ajit Singh and Raj Kumar demanded Rs.5000/ from him to delete the name of his daughters from the list of the accused in the complaint lodged by his daughter in law. He also added that when he was going out of CAW Cell, Nand Nagri, after talking to accused Ajit Singh and Raj Kumar, he met accused Sumitra outside CAW Cell who told him that accused Ajit Singh and Raj Kumar were known to her and demanded Rs.20,000/ to close the entire case and thereafter, he paid Rs.15,000/ to accused Sumitra Devi. Said complainant has also identified the CD Ex.P1 which bears his signatures and added that said CD contained his conversation with the accused persons. Said PW1/complainant has admitted that the Complaint Ex.PW1/A, Pre Raid Report Ex.PW1/B, Post Raid Report Ex.PW1/C, Seizure Memo, relating to exhibits and sample seal Ex.PW1/D, Seizure Memo relating to GC notes Ex.PW1/E, two Seizure Memo relating to CD Ex.PW1/F and Ex.PW1/G, Transcription between the complainant and accused Ajit Singh Ex.PW1/H, Arrest Memo of accused Ajit Singh and Sumitra Ex.PW1/I and Ex.PW1/J, Personal Search Memo of accused Ajit Singh and Sumitra Ex.PW1/K and Ex.PW1/L, bear his signatures. In the cross examination by Ld. Counsel for the accused Ajit Singh, he has stated that he had no direct transaction with C.C. No. 52/12 Page No. 28 of 58 accused Ajit Singh and transaction has taken place between accused Ajit Singh and Anil. In the cross examination by Ld. Counsel for the accused Sumitra Devi, he has added that he is 7th Class pass and he met accused Sumitra for the first time in CAW Cell but do not remember the date. He also denied the suggestion that no demand was made by accused Sumitra on behalf of accused Ajit Singh. In the cross examination by Ld. Counsel for accused Raj Kumar, he admitted to be correct that accused Raj Kumar had never demanded any money from him but added that he had demanded on account of expenses and he had given Rs.6500/ to accused Raj Kumar in this respect and denied the suggestion of Ld. Counsel that accused Raj Kumar never demanded any such expenses from him or he did not give Rs.6500/ to accused Raj Kumar.
23. No doubt said PW1/complainant is found to have turned hostile on certain aspects but found to have deposed regarding substantive aspect of demand and acceptance of money as against the accused Ajit Singh, Sumitra Devi and Raj Kumar. Furthermore, from the perusal of the record, it is clearly reflected that the PW29/Raid Officer has drawn the Post Raid Proceedings Ex.PW1/C which found bear the signature of PW1/complainant, PW4/ Panch witness and C.C. No. 52/12 Page No. 29 of 58 PW29/Raid Officer.
24. I am of the considered view that said Post Raid Proceedings Ex.PW1/C being in the nature of Panchnama which is duly signed by the complainant and Panch witness is duly admissible and reference can be made to the case of Santa Singh vs. State of Punjab AIR 1956 Supreme Court 526 wherein it was held that mere presence of the police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of the things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him and it would not fall within the mischief of section 162 of the Code.
25. From the perusal of the said Post Raid Proceedings Ex.PW1/C, it is clearly reflected that the accused Ajit Singh has demanded and accepted the bribe of Rs.5000/ from the complainant at about 6:20 p.m. on dated 18.06.2008 in CAW Cell, Nand Nagri and kept the same on upper left pocket of his shirt by his right hand and ultimately, said 5 GC notes of Rs.1000/ each have been recovered from the said shirt pocket of the accused Ajit Singh and the serial C.C. No. 52/12 Page No. 30 of 58 number of those GC notes found tallied with the serial number as mentioned in the Pre Raid Proceedings Ex.PW1/B and said recovered GC notes were seized vide Seizure Memo Ex.PW1/E.
26. It is also revealed from the record that wash of right hand and upper left pocket of shirt of accused Ajit Singh with colourless solution of sodium carbonate were taken and the same turned into pink colour and said wash vide Ex.RHWI and LSSPWI have given positive test for the presence of phenolphthalein and sodium carbonate as per FSL Report Ex.PW27/B which establish that the said treated 5 GC notes of Rs.1000/ each were handled and accepted by the accused Ajit Singh and ultimately same were recovered from him.
27. I do not find any force in the submission of Ld. Counsel for the accused Ajit Singh to the effect that PW1/Tahir Hussain complainant has turned hostile on certain aspects and has not supported the case of prosecution and has not deposed about demand, acceptance and recovery of bribe as against this accused and nothing can be drawn from the deposition of said PW as against this accused Ajit Singh. In the Judgment reported as AIR 1991 SC 1853 Khujji @ Surender Tiwari vs. State of M.P., it was observed as under: C.C. No. 52/12 Page No. 31 of 58 Para 6: ".................................... Counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this court "Bhagwan Singh vs. State of Haryana (1976) 2 SCR 921 : (AIR 1976 SC 202):
Rabinder Kumar Dey vs. State of Orissa, (1976) 4 SCC 233 :(AIR 1977 SC 170) and Syed Akbar v. State of Karnataka, (1980) 1 SCR 95: (AIR 1979 SC 1848) that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two eye witnesses was challenged by the prosecution in crossexamination because they refused to name the accused in the dock as C.C. No. 52/12 Page No. 32 of 58 the assailants of the deceased. We are in agreement with the submission of the learned counsel for the State."
28. In view of the above material as available on record, I am of the considered view that the factum regarding the demand and acceptance of bribe of Rs.15,000/ by the accused Sumitra Devi initially and thereafter, demand and acceptance of bribe of Rs.5000/ by accused Ajit Singh on behalf of all the accused persons from PW1/complainant have been found established from the deposition of PW1/Tahir Hussain, complainant, PW4/Lajpat Rai, Panch witness and PW29 Inspector V.K.Singh, Raid Officer coupled with the contents of Complaint Ex.PW1/A, Seizure Memo of the GC notes Ex.PW1/E, Seizure Memo of four bottles marked as RHWI, RHWII, LSSPWI & LSSPWII, sample seal vide Ex.PW1/D, Post Raid Proceedings Ex.PW1/C.
29. During the course of the argument, it is submitted by Ld. Counsel for the accused Ajit Singh that as the Raid Officer is an interested witness for success of his raid and therefore, his deposition cannot be treated as trustworthy and reliable. I do not find any force in the submission of Ld. Counsel for the accused in this respect. C.C. No. 52/12 Page No. 33 of 58 Reference is placed on case of Hazari Lal V/s State ( Delhi Admn ) AIR 1980 Supreme Court 873. In that case the allegations against the accused who was a police officer was that he demanded bribe from the complainant for release of his scooter rickshaw which was seized by the police. The trap was laid and the accused was caught red handed. However, during trial complainant turned hostile and deposed that when he went to the police station on first occasion to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar was present and it was not the accused but that Hawaldar who demanded bribe of Rs. 60/ from him and when he went to the police station along with punch witness he found accused there and asked him to take a sum of Rs. 60/ and return the scooter rickshaw. He stretched his hand with the money towards the pocket of accused 's trouser but accused said the money might be paid to the person for whom it was meant for. He refused to receive the money and jerked complainant's hand with his hand as a result of which the notes came to be flung across the wall into neighboring room. He deposed that accused neither demanded the amount from his nor accepted the amount. The punch witness who went along with the complainant could not be examined as he became insane and other punch witness turned hostile. The conviction was based on the C.C. No. 52/12 Page No. 34 of 58 statement of trap officer and the Hon'ble Supreme Court held as under: "We are not prepared to accept the submission of Shri Frank Authony that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case, the Court may unhesitatingly agent the evidence of such an officer."
30. Besides that in the case reported as AIR 1998 SC 1474 State of U.P. Vs. Zakullaha it was held by the Hon'ble Supreme Court of India that the evidence of trap officer in a bribe case can be acted upon even without the help of any corroboration and similar C.C. No. 52/12 Page No. 35 of 58 view was held in a judgment: Prakash Chand vs. State (Delhi Administration) AIR 1979 SC 400.
31. During the course of arguments, it is submitted by Ld. Counsel for the accused Ajit Singh that though independent public persons were available at the spot and nonjoining of any of them in the raid proceedings is fatal for the case of the prosecution. I do not find any force in the said submission of Ld. Defence Counsel in view of the fact that since an independent witness i.e. PW4/Lajpat Rai, Panch witness had already been joined in the proceedings by the PW29/Raid Officer, nonjoining of any other person available at the spot cannot be over emphasized. My said view is also found supported from the judgment reported as 2011 V AD (DELHI) 500, Anna Wankhade Vs. Central Bureau of Investigation (Through State), wherein it was held in Para 21 as under: "21. There is no dispute with regard to the proposition regarding desirability of association of independent witnesses by the police so as to lend more credence and authenticity to the case, but there is also no dispute that nonassociation of the independent witnesses per se for any C.C. No. 52/12 Page No. 36 of 58 reason whatsoever was in itself not enough to discard the prosecution witnesses or throw away the case as a whole. In the present case, CBI associated two independent witnesses on the written requisition made to the office of NDMC. Since the prosecution/CBI already had two independent witnesses, who had been informed and apprised about the technicalities involved in the procedure during the trap proceedings, it was not necessary for the IO to have joined other public witnesses at the time of apprehension. May be to avoid the risk of such a raw public person getting won over or being unable to understand the proceedings at the last moment of raid, that the IOs usually avoid associating public witnesses at that stage in such type of cases."
32. During course of arguments, it is submitted by Ld. Counsel for the accused Sumitra Devi that PW1/complainant is an accomplice and has made several inconsistent statements and is not a reliable witness and his statement cannot be acted upon. So far as the contention that the statement of the complainant cannot be acted upon C.C. No. 52/12 Page No. 37 of 58 without corroboration is concerned, it is appropriate to refer to the case of Dewan @ Vasudeva and etc. V/s The State 1988 Crl. L.J. 1005 where it was held by Hon'ble High court of Kerala as under: ''True, the person who pays the gratification is, in a way, an accomplice in the offence, when his role is viewed from a wide angle. But before his evidence is dubbed as unworthy of credit without corroboration, a pragmatic or realistic approach has to be made towards such evidence. If the bribegiver voluntarily goes to the offender and persuades him to accept the bribe , his position is that of an undiluted accomplice and it is a rule of prudence to insist on independent corroboration such evidence. On the other hand, if the giver of gratification was persuaded to give it, he actually becomes a victim of persuasion by the offender. To name him an accomplice and to reject his testimony due to want of corroboration, would sometimes, be unrealistic and imprudent .The court must always bear in mind that insistence on corroboration for the evidence of accomplice is not on C.C. No. 52/12 Page No. 38 of 58 account of any rule of law, but is a caution of prudence. The density of the stigma to be attached to a witness as an accomplice depends upon the degree of his complicity in the offence. Suspicion towards his role as an accomplice should vary according to the extent and nature of his complicity. It must be considered in each case whether the bribe giving or payment of gratification was done in such a way that independent persons had no occasion to witness such acts. '' Furthermore, in another case reported as State of U.P. vs. Dr.G.K.Ghosh AIR 1984 SC 1453 it was observed by Hon'ble Supreme Court as under: "By and large a citizen is somewhat reluctant rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of C.C. No. 52/12 Page No. 39 of 58 Vigilance Department and to wait on a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort while doing so. Thereafter, he has to attend the court at the time of the trial from day to day. He has to withstand the searching cross examination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the wrath of the Government servants of the department concerned, in his future dealings with the department. No one would therefore be too keen or too anxious to C.C. No. 52/12 Page No. 40 of 58 face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a gobye to the rules, the official refuses to yield."
33. Furthermore, it is not the case where the complainant had been frequently giving bribe amount to the accused or public servant. Beside this, in the present case, the deposition of the complainant PW1 is found corroborated even from the deposition of PW4 Lajpat Rai/Panch witness coupled with the Complaint Ex.PW1/A and Post Raid Proceedings Ex.PW1/C and I do not see any reason to disbelieve C.C. No. 52/12 Page No. 41 of 58 the same.
34. During the course of argument, it is submitted by Ld. Defence Counsel that there is nothing on record to establish that the accused persons had entered into any criminal conspiracy to demand and accept bribe from the complainant. It has been well settled that the offence of criminal conspiracy is hatched in secrecy and privacy and direct evidence in this respect is not required as inferences from the attending circumstances are validly permissible in this respect. In the present case, the factum regarding the posting of accused ASI Ajit Singh and accused Ct.Raj Kumar at CAW Cell, Nand Nagri during the relevant period and handling of the Dowry Complaint against the complainant and his family members pending at CAW Cell by them is not disputed being matter of record. Even the accused Raj Kumar in his Statement U/S 313 Cr.P.C. has admitted that he was jointly doing the investigation of the Dowry Case as pending against the complainant and his family members. The factum regarding the assignment of said Dowry Complaint against the complainant and his family members to accused ASI Ajit Singh is also found corroborated from the Certificate Ex.PW24/A. Furthermore, PW1/complainant has also deposed that the Complaint as filed by his daughter in law C.C. No. 52/12 Page No. 42 of 58 Shabnam against him and his family members in CAW Cell, Nand Nagri was being inquired by accused Ajit Singh and accused Sumitra had met him and introduced herself that she was working in Police Department and knew accused Ajit Singh and has demanded Rs. 15000/ for getting said Complaint settled through accused Ajit Singh and thereafter, complainant had given Rs.15000/ to accused Sumitra for said purpose. Said PW1/complainant has further deposed that thereafter, accused Sumitra demanded Rs.10,000/ more from him for paying to accused Ajit Singh. He had talked to accused Ajit Singh and came to know that accused Ajit Singh was paid earlier Rs.10,000/ and remaining Rs.5000/ was kept by accused Sumitra. Furthermore, said PW1/complainant has also deposed that whenever he was called to CAW Cell, Nand Nagri by accused Ajit Singh, accused Raj Kumar used to accompany him. Said PW1 has also deposed that even said accused Raj Kumar had taken Rs.6500/ from him on plea of bearing expenses and he has clearly denied the suggestion of Ld. Counsel for accused Raj Kumar that accused Raj Kumar never demanded any expenses from him and not received Rs.6500/. Said PW1/complainant is found to have clearly named all the three accused in his Complaint Ex.PW1/A regarding demand of bribe from him. It is also revealed from the deposition of PW12 Anand Kishor Meena, C.C. No. 52/12 Page No. 43 of 58 PW17 Vijay Pal Dangi, PW18 Ashok Kumar Goel and PW19 Tarun Pal that all the accused namely Sumitra Devi, Ajit Singh and Raj Kumar have refused to give their sample voice for the purpose of comparison to the IO during course of Investigation.
35. In view of the aforesaid material as available on the case record, I have no hesitation to safely conclude that initially the accused Sumitra Devi had demanded and accepted bribe of Rs. 15000/ from the complainant for getting the case proceedings closed being handled by accused Ajit Singh and thereafter, the accused Ajit Singh had demanded and accepted bribe of Rs.5000/ from the complainant for helping the complainant in the said Complaint Case, in pursuance of their criminal conspiracy hatched by all the three accused persons to demand and accept bribe from the complainant.
36. During the course of argument, it is submitted by Ld. Counsel for the accused Ajit Singh that there are several lapses on the part of the Raid Officer as he has started the Pre raid Proceedings without verifying the CD and he has not joined Anil, friend of the complainant in the Raid Proceedings. Similarly, it is submitted by Ld. Counsel for the accused Sumitra Devi that when the complainant had C.C. No. 52/12 Page No. 44 of 58 gone along with his friend Anil Kumar to Anti Corruption Branch and joined the Raid Proceedings, why he was not cited as a PW and accordingly pointed out the lapse on the part of IO. It is also submitted by Ld. Counsel that IO had prepared the documents not at the spot but by sitting at the Office of Anti Corruption Branch. I do not find any force in the submission of Ld. Counsel to the effect that IO has prepared the documents not at the spot but by sitting at the Office of Anti Corruption Branch as PW4/Panch witness as well as PW27/IO have clearly denied the suggestion of Ld. Counsel for the accused in this respect. No doubt, Ld. Counsel for the accused persons have pointed out certain lapse on behalf of Raid Officer/IO but I am of considered view that mere lapse on the part of the RO/IO cannot be a escape plea for the accused specifically when adequate incriminating material for the charged offence are available on record. I am of the considered view that criminal justice should not be made casualty of wrongs committed by the IO and my said view is found nourished from the judgment as rendered by Hon'ble Delhi High Court in the case reported as "2000 (I) A.D. (Delhi) 67 Manoj @ Manu Vs. State of Delhi." In the case reported as "State of Rajasthan Vs. Kishore (1996 SCC (Crl) 646)" it was observed by Hon'ble Supreme Court of India that mere fact that the investigating C.C. No. 52/12 Page No. 45 of 58 officer committed irregularity or illegality during the course of investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. Furthermore, in another case reported as "Ram Bihari Yadav Vs. State of Bihar and Ors. (1998(4) SCC
517)" it was observed by Hon'ble Supreme Court of India as under: "If primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice". The view was again reiterated in "Amar Singh Vs. Balwinder Singh and Ors. (2003 (2) SCC 518)."
37. During the course of the argument, it is submitted by Ld. Counsel for the accused Ajit Singh that though there is allegation of demand of bribe as against accused Ajit Singh through phone from the complainant but as no phone call detailed Record was produced by the prosecution, the CD could not be properly proved and cannot be considered. Similarly, it is submitted by Ld. Counsel for the accused Sumitra Devi that as there are no departure and arrival DD C.C. No. 52/12 Page No. 46 of 58 entry of SI Ramesh Kumar for going with the complainant to the house of accused Sumitra Devi on 17.06.2008 with recording device and as phone call detailed was not produced by the prosecution, the CD cannot be looked into. From the perusal of the record, it is clearly reflected that PW8/SI Ramesh Kumar has deposed that on 17.06.2008 while he was posted as SI in Anti Corruption Branch and on the instructions of Senior Officer, he obtained the recording device from SI Karnail Singh and accompanied with the complainant to the house of accused Sumitra Devi and keeping said device on put in the pocket of the complainant and said complainant went inside the house of accused Sumitra and he remained outside. So the conversation between the complainant and accused Sumitra Devi regarding bribe was recorded in the said recording device and said facts are also found corroborated from the deposition of PW1/complainant. PW8 further deposed that thereafter he has handed over said recording device to SI Karnail Singh on his return on that day. Said PW8 has further deposed that on 18.06.2008 he again obtained recording device from SI Karnail Singh on the instructions of Senior Officer and accompanied the complainant/Tahir Hussain to CAW Cell, Nand Nagri and put said recording device by keeping on in the pocket of the complainant. Thereafter, the complainant went inside the Office of C.C. No. 52/12 Page No. 47 of 58 CAW Cell and his conversation with accused Raj Kumar regarding the bribe was recorded in the said device and thereafter, he had handed over said recording device to SI Karnail Singh. Furthermore, said deposition of PW8/SI Ramesh Kumar also found corroborated from the deposition of PW23/Karnail Singh. As said PW23/Karnail Singh has deposed that while he was posted as SI in PS Anti Corruption Branch on 17.06.2008, as per directions of Senior Officer, he had handed over recording device to SI Ramesh Kumar who had gone along with the complainant and thereafter, in the evening SI Ramesh Kumar had handed over him the recording device. He has further deposed that again on 18.06.2008, he had handed over recording device to SI Ramesh Kumar and he returned the same after recording on the same day. He further deposed that as per the directions of Senior Officer, he arranged talk between SI Ajit Singh and complainant on mobile and got recorded said conversation and he prepared CD of said 3 talks and handed over the same to Inspector V.K.Singh which was taken into possession vide Seizure Memo Ex.PW1/F. He further deposed that on 30.07.2008 he handed over copy of said CD to IO which was taken into possession vide Seizure Memo Ex.PW1/G and identified said copy of the CD available on the judicial record which is Ex.PW23/A. Said deposition of C.C. No. 52/12 Page No. 48 of 58 PW23/Karnail Singh is also found corroborated from the deposition of PW27/Inspector Yashpal, IO who has deposed that on his asking SI Karnail Singh prepared a copy of the CD which was taken into possession vide Seizure Memo Ex.PW1/G and said CD was kept open for the purpose of investigation. He further deposed that said CD was played in the presence of complainant and Panch witness and three transcripts were prepared on 16.10.2008 which are Ex.PW1/H, Ex.PW11/A and Ex.PW11/B which bears his signatures at point X. Said part of deposition of PW27/IO is found corroborated from the deposition of PW11/Veerpal,Panch witness who is a witness to said transcription Ex.PW11/A relating to accused Ajit Singh and Ex.PW11/B relating to accused Sumitra. Furthermore, PW27/IO has also deposed that said CD was played before Inspector Vinita Tyagi, Incharge of CAW Cell on dated 28.08.2008 in the Office of Anti Corruption Branch and hearing the same, she had duly identified the voice of accused ASI Ajit Singh and accused Ct.Raj Kumar and Observation Memo Ex.PW10/A was prepared in this respect and said part of deposition of PW27/IO is also found corroborated from the deposition of PW24/Inspector Vinita Tyagi. PW27/IO further deposed that said CD was played before SI Bahuri Singh of Security Unit on 28.08.2008 in the Office of Anti Corruption Branch and on hearing C.C. No. 52/12 Page No. 49 of 58 the same, he has identified the voice of accused HC Sumitra and Observation Memo Ex.PW7/A was prepared in this respect. Said part of deposition of PW27/IO is found corroborated from the deposition of PW7/Retd. SI Bahuri Singh. I do not see any reason as to why PW7/Retd. SI Bahuri Singh and PW24/Inspector Vinita Tyagi would falsely identify the voice of the accused persons on hearing the said CD specifically when they have no earlier enmity against the accused persons. Furthermore, PW28/Dr.C.P.Singh, on examination of the CD Ex.1 has opined that there was no indication of any form of alteration in audio recording and has prepared the FSL Report Ex.PW27/E which corroborate the said deposition of PW28 in this respect.
38. Furthermore, it is also revealed from the record that the accused persons have refused to give their sample voice for the purpose of comparison during course of Investigation without indicating any justifiable reason for the same. The refusal for giving voice sample on the part of accused Ajit Singh in this respect is found corroborated from the deposition of PW17/Vijay Pal Dangi coupled with Memo Ex.PW17/A and deposition of PW18/Ashok Kumar Goel coupled with Memo Ex.PW18/A and Ex.PW18/C. Similarly, the refusal for giving voice sample on the part of accused Raj Kumar in C.C. No. 52/12 Page No. 50 of 58 this respect is found corroborated from the deposition of PW18/Ashok Kumar Goel coupled with Memo Ex.PW18/B and PW18/D and deposition of PW19/Tarun Pal coupled with Memo Ex.PW19/A and Ex.PW19/B. Similarly, the refusal for giving voice sample on the part of accused Sumitra Devi in this respect is found corroborated from the deposition of PW12/Anand Kishor Meena coupled with Memo Ex.PW12/A and PW12/B. Said facts of the refusal of giving voice sample on the part of accused persons without any justifiable reason are also found corroborated from the deposition of PW27/IO in this respect.
39. In view of the aforesaid material as available on the record, I do not find any force in the submission of Ld. Counsel for the accused persons for keeping the contents of the CD out of consideration.
40. During course of the argument, it is submitted by Ld. Counsel for the accused Sumitra Devi that said accused was not posted in CAW Cell, Nand Nagri but was posted at Security Unit and hence, there was no occasion to demand any bribe from the complainant for helping the complainant in Dowry Complaint Case C.C. No. 52/12 Page No. 51 of 58 pending before CAW Cell, Nand Nagri and accused was not competent to do so. I do not find any force in the said submission of Ld. Counsel for the accused Sumitra Devi as PW1/complainant has specifically deposed regarding demand and acceptance of bribe as against accused Sumitra Devi. As said PW1/complainant has deposed that on 24.4.2008 accused Sumitra met him and told him that she was also working in Police Department and knew Ajit Singh and she demanded Rs.15000/ for getting the matter settled through Ajit Singh and thereafter, he gave Rs.15000/ to accused Sumitra. Said PW1 has further deposed that thereafter, said accused Sumitra was demanding Rs.10,000/ more from him on the plea that Rs.15000/ as paid earlier was not enough for the job. Said PW1 has further deposed that on 17.6.2008 he had gone to the house of accused Sumitra and got his conversation with accused Sumitra regarding bribe recorded through a recording device. Furthermore, there is specific allegation regarding demand and acceptance of bribe as against accused Sumitra in the Complaint Ex.PW1/A. In view of the aforesaid material available on record, mere fact that accused Sumitra was working as Head Constable in Security Unit and not in CAW Cell, Nand Nagri at the relevant time, can be of no help for said accused.
C.C. No. 52/12 Page No. 52 of 58
41. Besides this, law is well settled that it does not matter whether the public servant was competent to do the work or not and reference can be placed in the case reported as Chaturdas Bhagwandas Patel Vs. State of Gujrat, 1976(3) SCC 46 as referred in State of Andhra Pradesh Vs. C. Uma Maheshwar Rao and Anr. 2004, V AD (SC) 176, wherein it has been held by Hon'ble Supreme Court of India that the question whether a person has an authority to do the act for which bribe is accepted, is of no consequence. In the case reported as Gopal Singh Vs. CBI, ILR (2005) II Delhi 35, It was observed by the Hon'ble Delhi High Court in Para 22 as under: "It has to be added that in cases under PC Act, the prosecution is under no obligation to prove that a public servant demanding bribe was in a position to help the person from whom the bribe was being demanded. The prosecution succeed the moment it is shown that a public servant had accepted some money from someone which was not legal remuneration. The presumption U/S 20 of the Act comes into play shifting the burden upon the public servant to explain as to why he had received the money. A public servant may misguide, mislead or befool C.C. No. 52/12 Page No. 53 of 58 his victim to pay him illegal gratification knowing fully well that he is not in a position to help him and as such it can be no defence for him to say that since he was not in a position to help the complainant/victim the money received by him does not amount to illegal gratification."
42. I also do not find any force in the submission of Ld. Counsel for the accused Ajit Singh that alleged recovery of the treated GC notes as against this accused is not sufficient to convict the accused for the charged offence. Once the accused is found to have accepted the bribe amount, it is for him to explain as to in which capacity he has accepted the same.
43. In the case of Dhanvantrai Balwantrai Desai V/s State of Maharashtra, AIR 1964 Supreme Court 575 it was held as under: "Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was C.C. No. 52/12 Page No. 54 of 58 lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occurs in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
44. It is also useful to refer to the decision of Hon'ble Supreme Court in case of M.Narsinga Rao V/s State of A.P. 2001 (1) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed C.C. No. 52/12 Page No. 55 of 58 into his pocket. During trial complainant and panch witness did not support the prosecution case and it was argued before Hon'ble High Court that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demand bribe. The Hon'ble High Court held as under: "It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under Section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
45. It is also useful to refer to the case of B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) where it was held as under: "that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution C.C. No. 52/12 Page No. 56 of 58 to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case."
46. Once the bribe amount is recovered from the accused it is for the accused to explain as to how the bribe amount landed in his person. In the present case, the accused Ajit Singh has not given any justifiable explanation in his Statement U/S 313 Cr.P.C. as to how bribe amount of Rs.5000/ landed in his upper left pocket of his shirt from which it was recovered.
47. In view of the aforesaid materials as available on the record, I am of the considered view that the presumption as contemplated U/S 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused and the judgments as referred and relied by Ld. Counsel for the accused Ajit Singh can be of no help for the said accused being not applicable in view of the above referred clinching material relating to the demand and acceptance of bribe of Rs.15000/ initially by the accused Sumitra Devi and bribe amount of Rs.5000/ subsequently by the accused Ajit Singh in pursuance of the criminal conspiracy hatched by accused persons.
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48. In view of the above, I do not find any force in the submission of Ld. Counsel for the accused persons that these accused persons are innocent and have been falsely implicated in this case.
49. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has successfully established its case as against all the accused persons for the charged offence. Therefore, all these three accused persons namely Ajit Singh, Raj Kumar and Sumitra are held guilty and convicted for offence punishable U/S 120B IPC r/w Section 7/13 of Prevention of Corruption Act, 1988 and U/S 7 and U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988.
50. Let all these accused persons be heard separately on the point of sentence.
Announced in the open court on this 10th day of May, 2013 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No. 52/12 Page No. 58 of 58