Delhi District Court
State vs Daya Ram on 9 July, 2007
1
CC No.41/2002
IN THE COURT OF SHRI SUNIL GAUR : SPECIAL
JUDGE.DELHI
CC No.41/2002
State Vs Daya Ram
S/o Shri Maadu Ram
R/o Village Nanglia
Gujrawas, PO Mehara
Jatuwas, Tehsil Khetri,
District Jhunjhunu,
Rajasthan
FIR No.16/2000
u/s 12 of Prevention of
Corruption Act 1988.
PS Anti Corruption Branch,
GNCT, Delhi.
JUDGMENT
Accused Daya Ram, a suspended Constable of Delhi Police, has been charge-sheeted by the Anti Corruption Branch with the allegations that on 25.3.2000 accused has offered Rs.19,000/- to the complainant Shri R.K. Sharma, Addl. C.P. of Delhi Police, for getting himself reinstated on duty.
2. The facts of this case reveals from the complaint made by PW-5 Constable Rakesh Chamling, No.11534 DAP, 10th Bn. Pitam Pura, Delhi which on translation reads Contd/-
2CC No.41/2002 as under:-
''Sir, I am working as Constable in 10th Bn Pitam Pura, Delhi. I am on duty at the residence of Shri R.K. Sharma, Addl. C.P at 33/28, Rajpur Road from 2.00pm to 10.00pm. When I was on duty at his residence, at about
3.00/3.30pm, I opened the door after it was knocked, one person had given me one yellow colour envelope which was closed from its four sides by using pins and on the envelope one square slip having typed matter as ''Shri R.K. Sharma, Additional CP/Armed Police 33/28, Rajpur Road,Delhi-54'' was pasted thereon and the said person told me to deliver the Dak to Sahib. I took the envelope, went inside and had shown to Shri R.K. Sharma who asked me to bring the envelope after opening and when I opened the same, one letter written in Hindi on a ruled paper and one off-white small opened envelope having Rs.19,000/- in the denomination of 38 notes of Rs.500/- each were found on Contd/-
3CC No.41/2002 counting. Sahib had read over the letter written in Hindi and gave me along with envelope letter and money for lodging report and the said letter is reproduced as under:-
Sewa Mein , Shriman Sahib Bahadur Ji, 33/28, Rajpur Road, Delhi.
It is requested that I am resident of Rajasthan and my family is very poor in the village. Whatever, salary I received, that was used to bring up two families . One family of my uncle which has three girls ,my uncle and aunt. The second family is mine which includes my father, my mother , myself, my wife , my two sisters and two sons (all these members are thirteen in total) Sir, my family has no means of sustenance. I myself worked under your office. I was dismissed on 31.8.99. Therefore, Sir, only you are my parents as well God and it is only you who can look after the sustenance of my family.
Sir, on the auspicious occasion of Holi , I am giving you a gift of Rs. 19,000/- .
Contd/-4
CC No.41/2002 Sir, with folded hands and feet it is the request of myself and my family that you save me .
Address Ex. Sipoi Dayaram , 9642/DAP s/o Sh. Madu Ram , Post Mehara, Jatu Vas, Village Nanglia, Gujarwas, Tehsil Khetri, District Jhunjunu (Rajasthan) Sir, my appeal is pending in your office vide dispatch no. 7378/HAP/VIII/BN-DAP, my PIS No. is 28892791.
Dated 21.3.2000
3. Thereafter Constable Rakesh Chamling has reproduced the letter written in Hindi by accused Daya Ram, Ex. Constable of Delhi Police, in his complaint and further stated in his complaint Ex.PW5/A as under :-
''That from the subject matter of the letter it appears that Constable Daya Ram either himself or through some one else had tried to give bribe to Shri R.K. Sharma, Addl. CP for getting himself reinstated who had since been dismissed during departmental inquiry, which is an offence. I have brought the letter, envelope and Rs.19,000/- in the Contd/-5
CC No.41/2002 denomination of 38 notes of Rs.500/- each. Appropriate action be taken. I have never seen Daya Ram from before nor have seen the man who had brought the envelope, so I cannot say whether that man was himself Daya Ram but I can identify the man who had brought the envelope if he appears before me.''
4. On the above said complaint, Inspector Nagender Singh made endorsement Ex.PW6/A and sent the same to the Duty Officer for registration of a case under section 12 of Prevention of Corruption Act 1988 and after registration of case FIR No.16/2000, further investigation was also handed over to the Inspector Nagender Singh, and during the course of investigation, he recorded the statement of Shri R.K. Sharma Ex.PW6/C and prepared site plan of the spot Ex.PW6/D, recorded statement of PW Shyam Sunder, deposited case property i.e. 38 GC notes with Mohrrar Malkhana of Police Station Civil Lines and on the next day, it was revealed to Inspector Nagender Singh, Investigating Officer (IO) that accused Daya Ram is appearing before Shri Contd/-
6CC No.41/2002 R.K. Sharma, Addl. C.P in an interim appeal against his dismissal, in his office at Model Town and the next date in that case was fixed for 11.4.2000 and on receiving a telephonic call, he went to the office of Shri R.K. Sharma Addl. CP on 11.4.2000 with complainant Constable Rakesh Chamling and after identification of accused Daya Ram, he arrested the accused and conducted his personal search vide memo Ex.PW6/E and seized Identity Card and Election Card from the possession of the accused Ex.P-4 and P-5 and also took his specimen signatures and handwriting in presence of panch witness on 14 sheets Ex.PW1/1 to 14. After completion of investigation of this case, the challan was filed.
5. Accused Daya Ram was summoned and copies of documents were supplied to him. Accused has been heard on the point of charge and on 29.04.2004, charge under section 12 of Prevention of Corruption Act 1988 was framed against the accused by my learned predecessor to which the accused had pleaded not guilty and claimed trial.
6. Prosecution has examined eight witnesses in all.
Contd/-
7CC No.41/2002 PW-5 Constable Rakesh Chamling is the complainant and star witness of the prosecution. This witness has fully supported the prosecution case besides proving his written complaint Ex.PW5/A. PW-1 Shri K.R. Chibber has testified that on 11.4.2000 he joined the investigation of this case and in his presence, Investigating officer took sample handwriting of accused Daya Ram on 14 different sheets Ex.PW1/1 to 14 which were given by the accused voluntarily. PW-2 Shri Vijay Kumar has deposed that on 12.4.2000 he joined the investigation of this case and in his presence accused Daya Ram had voluntarily given his sample handwriting on different five sheets Ex.PW2/1 to 5. PW-3 Asstt. Sub-Inspector Charanjeet Singh has testified that on 31.3.2000 he was posted in the office of Addl. C.P. (Armed Police), New Police Lines, Kingsway Camp and he handed over to the IO, copy of interim appeal and order dated 30.8.1999 Ex.PW3/A and Ex.PW3/B.
7. PW-4 Head Constable Madan Mohan has brought the main Departmental Inquiry file of accused Daya Contd/-
8CC No.41/2002 Ram and proved order Ex.PW3/B of DCP D.L. Kashyap. PW-6 Inspector Nagender Singh is the Investigating officer of this case and this witness has deposed in detail about the investigation conducted by him in the present case. PW-7 Shri Devak Ram is the FSL Expert and he has proved his report Ex.PW7/A with regard to comparison of questioned, specimen and admitted handwriting of the accused. PW-8 Shri Shyam Bahadur was the Watchman on the main gate of the complex in which the house of Shri R.K. Sharma was situated on the date of incident.
8. After closure of prosecution evidence, statement u/s 313 Cr. P. C. of accused Daya Ram was recorded in which he has denied the prosecution case in toto and stated as under :-
''I never visited the house of Shri R.K. Sharma on the said date or any other date and so I cannot say whether Constable Rakesh was on duty with Mr Sharma or not as I had no knowledge about the posting of Constable Rakesh Contd/-9
CC No.41/2002 Chamling. I did not go to the house of Shri R.K. Sharma nor I gave any yellow envelope containing Ex.P-1 and letter Ex.P-2 along with any GC notes. I did not write letter Ex.P-2 nor I offered any bribe to Shri R.K. Sharma through Constable Rakesh Chamling. It is incorrect that I ever asked Constable Rakesh Chamling to give the dak to Shri R.K. Sharma because I never visited the house of Shri R.K. Sharma, the then Addl.CP for any purpose. I never gave any envelope containing letter or any GC notes to Constable Rakesh Chamling so there was no question of opening my envelope by Constable Rakesh Chamling in the presence of Shri R.K. Sharma, the then Addl. CP. I was falsely implicated in this case and with that reason I was called in the office of Addl. CP only to get me involve in this case as I was not in Delhi and there was absolutely no need for Contd/-10
CC No.41/2002 calling me to appear before the Addl. CP for the decision of my appeal. I never gave voluntarily any specimen handwriting or signatures. I was illegally and unlawfully compelled by IO of this case for giving specimen handwriting and signatures and was also compelled to write and copy the letter in the similar way though Ex.P-1 was not in my hand and I requested the Investigating officer that my specimen handwriting and signatures may not be taken by him but I could be produced before the court for this purpose but the Investigating officer did not listen to my request and illegally and unlawfully obtained my specimen handwriting and signatures in his own way. The handwriting expert did not give his opinion against me. It is just by chance that some words, figures and vowels are curves by chance tally. Had the letter Ex.P-2 in my hand, the Contd/-11
CC No.41/2002 complete writing would have tallied as it did not tally so letter Ex.P-2 was never in my hand. The report has been managed by police. This is a false case. Some persons met me and pursuaded me that I should meet Shri R.K. Sharma, Addl. CP where my appeal was pending and they advised me that I should accept their illegal unlawful demand for getting my appeal accepted but I refused to act upon their request for meeting the illegal and unlawful demand which they said to be that of Shri R.K. Sharma, the then Addl. CP. Shri R.K. Sharma Addl. CP was arrested in criminal cases including a case of rape registered at Dehradoon and he remained in custody. He was also involved in a beating case in 1997. As I refused to fulfill the illegal and unlawful demand for the acceptance of my appeal, so I have been falsely implicated in this case. In order to implicate me falsely, I Contd/-12
CC No.41/2002 was illegally and unlawfully called to appear before the Addl. CP Shri R.K. Sharma on 11.4.2000 whereas the present false case was registered against me on 25.3.2000. There is no law which empowers the appellate authority to call the person who has filed the appeal but in my case a unique procedure has been adopted only to implicate me in this case falsely and ultimately I was reinstated by the orders of the Central Administrative Tribunal meaning thereby my appeal was wrongly and illegally rejected by Shri R.K. Sharma, Addl. CP. PW-5 Constable Rakesh Chamling and PW-6 Inspector Nagender Singh and other are interested witnesses and they were under the influence of Shri R.K. Sharma, Addl. CP who was senior to all of them. I am innocent. I have been falsely implicated in this case and the detailed reply has been given by me above.
Contd/-13
CC No.41/2002
9. In his defence, accused has produced four witnesses in all. DW-1 Constable Dinesh Parsad from PS Rajpur Janpath, Dehradoon, Uttranchal has brought the FIR register for the period 19.04.2002 to 13.05.2003 of Police Station Rajpur, Dehradoon, Uttranchal and has proved a photocopy of FIR No.52/2002 Ex.DW1/A. DW-2 Constable Driver Ajit Singh, PTC Jharoda Kalan was posted as driver in DAP First Battalion New Police Lines and was deputed with Shri R.K. Sharma, Addl. CP. This witness has testified that he had worked with Addl. CP with effect from February 2000 to perhaps May 2000 and he used to drive the car as and when Addl. CP wanted to go to attend a meeting or to go for any other official purposes.
10. DW-3 Head Constable Om Dutt has brought the original of the order dated 3.7.2006 passed by ACP Headquarters vide which Daily Diaries register of Police Station Civil Lines were destroyed prior to 31.12.2003 and proved a photocopy of the said order as Ex.DW3/A. DW-4 Constable Kamal Singh was posted as Constable in police Contd/-
14CC No.41/2002 station Civil Lines in the year 2000. This witness has testified that he was deployed outside the entrance gate of the flat of Shri R.K. Sharma, Addl. CP to record the names and purpose of the visitors.
11. I have heard Shri Alok Saxena, Ld Addl. Public Prosecutor for the State and Shri H.R. Dhamija, Ld Defence Counsel and have gone through the judicial record including evidence led by both sides.
12 Ld. Addl. Public Prosecutor for the State submits that accused Daya Ram had abetted the commission of offence u/s 7 of Prevention of Corruption Act, 1988 by offering the bribe of Rs. 19,000/- to Sh. R. K. Sharma then Addl. C. P. , for getting himself reinstated on duty. Rakesh Chamling (PW5) had supported the prosecution case and his testimony is corroborated with the circumstantial evidence. Thus, it is submitted that the prosecution case against the accused stands fully proved from the evidence on record.
Contd/-
15CC No.41/2002
13. On the other hand, Ld. Defence counsel contends that the necessary ingredients of the offence i.e. ''offer'' is not proved as star witness of the prosecution Sh. R. K. Sharma could not be examined because he had died and in the absence of the evidence of main witness Sh. R. K. Sharma , the prosecution case does not stand established.
14. It is next contended that the specimen hand writing of the accused has not been taken before a Metropolitan Magistrate whereas, it should have been. It is pointed out by the defence that the text of the specimen handwriting is not the same as that of the questioned writing on document Ex. P-2. The report of the hand writing expert (PW7) is assailed by the defence on the ground that the similarities found by the hand writing expert are by chance and the divergence found by the hand writing expert does not stand explained by the prosecution. 15 .It has been argued on behalf of the accused that the subject matter of this case i.e. the factum of appeal pending before Sh. R. K. Sharma is not proved because Contd/-
16CC No.41/2002 copy of the appeal on record is not original.
16. The evidence of Constable Rakesh (PW5) is assailed by the defence on the ground that his evidence regarding identity of the accused after lapse of six years does not inspire confidence because in the complaint/FIR no description of the accused is given and specially when, this witness admits that he cannot identify those guests who used to visit Sh. R. K. Sharma.
17. It is pointed out by Ld. Counsel for the accused that the identity of the accused is not established as Chowkidar Shyam Bahadur (PW8) does not support the prosecution case. It is stressed by the defence counsel that no reason is forthcoming as to why no efforts were made to apprehend the accused till 11.4.2000.
18. It has been further argued by ld. Counsel for the accused that the accused was dismissed from service in August 1999 and in January 2002, he has been reinstated by the Orders of Central Administrative Tribunal and therefore, for the period in question he is deemed to be in Contd/-
17CC No.41/2002 service and therefore, it was necessary to obtain statutory presumption u/s 19 of Prevention of Corruption Act, 1988 before prosecuting the accused in this case.
19. To discredit the very basis of this case, defence has got examined official witness DW1 to DW 4 to highlight that R. K. Sharma was an accused in eight cases in August 2002 and the driver and the police official on duty at the residence of R. K. Sharma had never taken any person to Anti Corruption Branch or never saw the accused at house of R. K. Sharma and Constable Kamal (DW4) was duty Constable at the house of R. K. Sharma. Thus, it is contended that the prosecution is rendered doubtful and the accused deserves to be acquitted.
Nothing else is urged by either side.
20. In a trial for an offence u/s 12 of Prevention of Corruption Act, 1988, mere offer of bribe is an offence and it is not the requirement of law that the offence is committed in consequence of that abetment or that the public servant to whom the bribe is offered is in a position to favour the accused or not. To determine whether offence of offering a Contd/-
18CC No.41/2002 bribe to a public servant is committed or not , the ''mens rea'' of the bribe giver has to be considered i.e. , it is relevant to find out the state of mind of the accused , when he offers a bribe.
21. In the light of the above referred parameters , the evidence on record, has been analysed threadbare and the crux of the prosecution case as stands revealed from the evidence on record is that on 25.3.2000 at about 3:30p.m., accused , a suspended Constable of Delhi Police went to the house of Sh. R. K. Sharma , the then Addl. Commissioner of Delhi Police with a parcel/envelope Ex. P- 1 containing the bribe amount of Rs. 19,000/- along with letter Ex. P-2 and in that letter there is reference to the appeal of the accused being pending before above said Sh. R. K. Sharma and of the accused giving of gift of Rs. 19,000/- in cash in that envelope to Sh. R. K. Sharma on the occasion of Holi which infact fell on 19.3.2000 whereas, this request letter Ex. P-2 is dt. 21.3.2000. The envelope Ex. P-1 containing the aforesaid bribe amount and letter Ex. P-2 was purportedly given by the accused to Constable Rakesh (PW5) who was the duty Constable at the residence of Contd/-
19CC No.41/2002 above said R. K. Sharma and accused had told him that it was the dak and the same was promptly given by Constable Rakesh (PW5) to R. K. Sharma who asked Constable Rakesh to open it and the aforesaid bribe amount and the letter Ex. P-2 were found in that envelope and R. K. Sharma after reading the letter Ex.P-2 sent Constable Rakesh to Anti Corruption Branch along with letter , bribe money and the envelope for lodging a complaint and thereafter, FIR was registered on the complaint of Constable Rakesh .
22. As the prosecution case goes, on 11.4.2000, accused was present in the office of Addl. C. P. Sh. R. K. Sharma for hearing of the departmental appeal of the accused and Investigating officer of this case had shown the accused to Constable Rakesh (PW5) who identified the accused as the one who had delivered the envelope Ex. P-1 to him on 25.3.2000 and the accused was thereafter, arrested in this case and specimen handwriting of the accused was taken and it was sent to FSL for comparison with the questioned hand writing as contained in a letter Ex. P-2 and as per the Handwriting Expert's report Ex. PW7/A, it tallied and hence, the accused was called upon to face the Contd/-
20CC No.41/2002 trial in this case.
23. The first and foremost challenge to the prosecution case by the defence is that the necessary ingredient of ''offer of bribe'' is not proved as the prime witness of the prosecution i.e. Sh. R. K. Sharma could not be got examined in this case as he had died .
24. To test this argument, the evidence of main witness i.e. of Constable Rakesh (PW5) needs to be adverted to . After having scrutinized the evidence of Constable Rakesh (PW5), I find that his evidence is sought to be dislodged by the defence on the point of identity of the accused. It transpires from the evidence of this crucial witness (PW5) that the complaint/statement Ex. PW5/A of Constable Rakesh (PW5) does not give the description of the accused and the accused was not put to Test Identification Parade (hereinafter referred to as TIP) and identification of the accused by this witness (PW5) after a fortnight in the office of Sh. R. K. Sharma , lacks legal soundness as when this witness (PW5) cannot identify all the guests who had visited Sh. R. K. Sharma at his Contd/-
21CC No.41/2002 residence in his presence, then how he could identify the accused in the absence of descriptive features of that person (who had given the envelope Ex. P-1 containing bribe) in the complaint/FIR.
25. The aforesaid assault of the defence upon the testimony of Constable Rakesh (PW5) cannot be considered in the isolation because side by side, the evidence of Investigating Officer (PW6) is required to be seen to find out as to whether it has been elicited by the defence in cross examination of Investigating officer (PW6) as to why enquiry was not made by him from the complainant/first informant i.e. Constable Rakesh (PW5) about the descriptive features of the person who had brought the envelope Ex. P-1 as dak.
26. Upon reading of the evidence of Investigating officer (PW6), it is found that he has not been cross examined as to why the descriptive features of offender were not taken by him while recording the complaint/FIR of this case. The complainant/first informant (PW5) of this case is a petty Constable who is not well educated and the lapse if any, was on the part of the Investigating officer (PW6) and Contd/-
22CC No.41/2002 on this account, the evidence of complainant/first informant (PW-5) cannot be faulted with.
27. It is not for this court to answer the aforesaid questions posed by the defence. The purpose of cross examination is to elicit the answers from the prosecution witnesses. It was for the defence who have pointedly cross examined the Investigating officer (PW6) as to why accused was not put to TIP and as to why specimen handwriting and signatures of the accused were not taken before the Metropolitan Magistrate. Unfortunately, Investigating officer (PW6) has not been cross examined on these aspects. Had he been so cross examined then definitely, the questions posed by the defence could have been answered. However, as regards taking of specimen handwriting before the Metropolitan Magistrate is concerned, Investigating officer (PW6) has volunteered that permission is sought from the court only if accused refuses to give specimen hand writing and signatures and it has been asserted by the Investigating officer (PW6) that the accused had voluntarily given his specimen handwriting and signatures.
Contd/-
23CC No.41/2002
28. Strangely, it has not been suggested to the Investigating officer (PW6) in cross examination by the defence that the specimen handwriting and signatures were given by the accused to the Investigating officer (PW6) under pressure or influence. This cannot be so because accused kept silent about it and did not make any complaint about it to any Authority. Similarly, had the Investigating officer (PW6) been cross examined about the gap of a fortnight between the incident and arrest of the accused then perhaps he would have given some plausible answer about it. Since, Investigating officer (PW6) has not been cross examined about it and so, the defence cannot derive any advantage of it.
29. Any how, it has come in the evidence of (PW6) that on 11.4.2000, a message was received from the office of Addl. C. P. Sh. R. K. Sharma that accused had come in that office and accordingly, Investigating officer (PW6) along with complainant/ first informant Constable Rakesh (PW5), watchman Shyam (PW8) reached the said office and as per the Investigating Officer (PW6) , both of them i.e. PW 5 and PW8 had identified the accused as the person Contd/-
24CC No.41/2002 who had come with envelope Ex. P-1 and had handed over the same to Rakesh (PW5) to be delivered to Sh. R. K. Sharma . Since, complainant/first informant (PW5) had correctly identified the accused as the one who had brought the envelope Ex. P-1, therefore, non-committal attitude of the watchman (PW8) about not being able to say as to whether accused is the same person who had come to deliver one envelope at the house of Sh. R. K. Sharma cannot negate the reliable and cogent evidence of Rakesh (PW5) .
30. Upon careful evaluation of the evidence of Rakesh (PW5), the star witness of the prosecution, it transpires that nothing worthwhile has come out of his cross examination which could discredit or impeach his version and from evidence of this witness (PW5), it can be safely concluded that the offer of bribe was made by the accused to Sh. R. K. Sharma at his house through the duty Constable Rakesh (PW5) posted there as envelope Ex. P-1 containing the bribe money of Rs. 19,000/- and letter Ex. P- 2 was delivered to duty Constable (PW5) who in turn delivered it to the addressee of that envelope i.e. to Sh. R.K. Contd/-
25CC No.41/2002 Sharma and since the FIR of this case has been registered on the complaint Ex. PW5/A of duty Constable (PW5) and not on the statement of Sh. R. K. Sharma, therefore, in the absence of the evidence of Sh. R. K. Sharma, it cannot be said that the necessary ingredients of offer of bribe to accused Sh. R. K. Sharma is not proved.
31. It is a matter of record that Sh. R. K. Sharma was not a signatory to any of the documents relied upon by the prosecution in this case. So, lacks of corroborative evidence of Sh. R. K. Sharma does not in any way diminish the reliability of the version of duty Constable Rakesh (PW5), in any manner whatsoever.
32. I do not find any substance in the contention of defence that duty Constable (PW5) could not have identified the accused in the evidence after a lapse of about six years. It is altogether a different matter that duty Constable (PW5) or any other person in his place may not be able to identify those guests who used to visit Sh. R. K. Sharma in his presence but on this premise , it cannot be reasonably said that duty Constable (PW5) could not have identified the Contd/-
26CC No.41/2002 accused after a fortnight or after a lapse of about six years because one may not remember ordinary happening of day to day life but extra ordinary happenings are grooved in the mind and one is able to recollect them even after a long time. Mind registers vividly what is unusual, extraordinary or off-the-line and is able to recall them even after a long time in graphic detail. On the other hand usual, ordinary or common things fade into oblivion in the realm of memory with the passage of time. To say the least, the accused in the present case had adopted a very novel method of offering a bribe as a gift on the occasion of Holi after the Holi festival and that too indirectly without bothering to first find out as to whether the bribe offered by him would be routinely accepted in such a fashion. Although, it would be going too far but still, it can be said even a corrupt public/government servant would not accept bribe in such a manner as offered by the complainant of this case.
33. It cannot be said that the factum of departmental appeal being pending is not proved by the prosecution as copy of the appeal and order Ex. PW3/A and B of accused are not original. It would be too technical to say so. The Contd/-
27CC No.41/2002 fact of departmental appeal of accused being pending before Sh. R. K. Sharma finds mention in the crucial letter Ex P-2 which accused himself had given along with the bribe money in the envelope Ex. P-1 to duty Constable (Pw5) for being delivered to Sh. R. K. Sharma.
34. To establish the identity of the accused , the prosecution not only relies upon the duty Constable (PW5) but also relies upon the evidence of Expert (PW7) who has proved his report Ex. PW7/A to the fact that the specimen hand wring of the accused tallies with the questioned hand writing and signatures of the accused in the seized letter Ex. P-2 . After having scanned through the evidence of Hand Writing Expert (PW7) and his report Ex. PW7/A I do not agree with defence submission that the text of the specimen hand writing and that of questioned hand writing in letter Ex. P-2 is not the same. When compared , they have been found to be the same. It is factually incorrect that the hand writing expert (PW7) has found any divergence in the two hand writings i.e. specimen and questioned. In fact, hand writing expert's report Ex. PW7/A is crystal clear on this aspect and the relevant portion is reproduced below :-
Contd/-28
CC No.41/2002 There is no divergence observed between the questioned and standard writings/signatures and the aforesaid similarities in the writing habits are significant and sufficient and cannot be attributed to accidental coincidence and when considered collectively they lead me to the above said opinion i.e. the person who wrote the specimen hand writing Ex. P-2 had also written the questioned hand writing and this opinion is supported by detailed reasoning given by the hand writing expert in his report and I find that the defence has miserably failed to counter or negate them .
35. I have appreciated the evidence of hand writing expert (PW7) in the light of observations made in judgment reported in AIR 1980 SC 531 in Murari Lal v/s State of M.P. which are as under:
There is no rule of law, nor any rule of prudence which has crystalised into a rule of law , that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting the approach should be one of Contd/-29
CC No.41/2002 caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted.
36. The report of the Handwriting Expert (PW7) is detailed and pointed. The expert has carried out a detailed analysis of the specimen, admitted and questioned handwriting and has formed his opinion with reasons.
37. I have no hesitation whatsoever in holding that the evidence of hand writing expert (PW7) remains firm and untarnished in cross examination by the defence. It is not the case of the accused that the specimen writing is not his. The evidence of hand writing expert (PW7) effectively connects the accused with the offence in question vide letter Ex. P-2 which was found in envelope Ex. P-1 along with recovered bribe money of Rs. 19,000/- .
Contd/-
30CC No.41/2002
38. Section 9 of the Evidence Act ,1879 lists among others , the relevancy of facts establishing identity of any thing or person. A person can be identified not only by his physical appearance but also by his signatures, thumb impressions, or hand writing etc. In the present case the identify of accused has been established not only by (PW5) but also by the letter Ex. P-2 written by accused in his own hand.
39. In the face of aforesaid clinching evidence , the challenge by defence as regards identity of the accused pales into insignificance as there is cogent and reliable evidence of Rakesh (PW5) regarding accused delivering the envelope Ex. P-1 to him for onward transmission to Sh. R. K. Sharma to influence the decision on the departmental appeal of the accused which was pending before Sh. R. K. Sharma . The subject matter of offer of bribe cannot be disputed because accused does not explain his presence on 11.4.2000 in the office of Sh. R. K. Sharma. In fact, he was present there for hearing of his pending appeal. To further corroborate, the accused has been identified through his hand writing by the Hand Writing Expert (PW7).
Contd/-
31CC No.41/2002
40. Prosecution case cannot be tarnished by getting defence witnesses examined to show Sh. R. K. Sharma was an accused in a rape case at the instance of his maid servant much after this incident. Since Sh. R. K. Sharma is no more in this world , therefore, nothing is required to be said in this regard. Moreover, it is often said that the charge of rape is easy to level but difficult to rebut. Much emphasis has been laid by the defence on the aspect of accused being reinstated by the Central Administrative Tribunal in the year 2002 i.e. much after this incident and so, of his being deemed to be in service and thus, according to defence, prosecution of the accused is bad in law in the absence of statutory sanction u/s 19 of Prevention of Corruption Act, 1988, for the prosecution of the accused. A bare reading of section 19 of Prevention of Corruption Act, 1988 makes it clear that section 12 of Prevention of Corruption Act, 1988 is expressly excluded from the purview of this section. Thus, for prosecuting an accused u/s 12 of Prevention of Corruption Act, 1988 like in the present case, no previous sanction u/s 19 of Prevention of Corruption Act, 1988 is necessary .
Contd/-
32CC No.41/2002
41. After having considered the prosecution case from every angle and in the light of contentions of the defence, I hold that prosecution succeeds beyond doubt in proving its case against the accused. Sub section 2 of Section 20 of Prevention of Corruption Act, 1988 raises a statutory presumption against the accused in trial for an offence u/s 12 of Prevention of Corruption Act, 1988 and it is a rebuttable presumption . Although, accused has got four witnesses examined in his defence but I find that their evidence has left much to be desired and it falls short of any sort of rebuttable to the statutory presumption raised against the accused. Official witness DW1 simply proves that a rape case was registered against DIG R. K. Sharma in the year 2002. There is vague evidence of Constable Ajit Singh (DW2) who claims to be the driver of Sh. R. K. Sharma and he denies that he did not take any person or orderly of R. K. Sharma to Anti Corruption Branch . This witness does not state in his evidence that on 25.3.2000, he was on duty as driver at the house of Sh. R. K. Sharma in the afternoon and so, the prosecution evidence of duty Constable (PW5) going to the Anti Corruption Branch to lodge the FIR of this case int he official vehicle of Sh. R. K. Sharma does not stand Contd/-
33CC No.41/2002 demolished from the evidence of this witness.
42. The evidence of Head Constable Omdutt (DW3) is of no help to the case of the defence because the summoned record is reported to have been destroyed. The oral evidence of another duty Constable (DW4) who claims to have been posted at the residence of Sh. R. K. Sharma cannot be accepted on the face of it because there is no documentary proof of being posted there and his self serving evidence of register being maintained at the house of Sh. R. K. Sharma is neither here nor there as there is positive evidence of the prosecution that no register was being maintained at the house of Sh. R. K. Sharma.
43. It is not denied by the accused nor it can be factually denied that pending Departmental Appeal of accused against his dismissal was rejected by Shri R.K. Sharma on 26.4.2000 i.e. just after about one month of this incident.
44. Hardly any capital can be made out by the defence on identity issue of the accused as why would Contd/-
34CC No.41/2002 anyone else send letter Ex.P-2 and recovered bribe money of Rs.19,000/- in envelope Ex.P-1 to appellate authority Shri R.K. Sharma when Departmental Appeal of accused was pending with him. This moot question begs an answer from the defence and no answer is forth coming to aforesaid question posed to the defence.
45. The recovery of bribe money is heavy one, so planting it is ruled out. Moreover, it is not the case of accused that it was planted or that he had any previous enmity with Constable Rakesh (PW-5) or Investigating officer (PW-6) or any prosecution witness or why anybody else would falsely implicate the accused in this case.
46. No reason is forthcoming as to why accused is falsely roped in this case. Investigating officer or police witnesses cannot be dubbed as interested witnesses in view of the following observations made in judgment reported in 2000(1) CC Cases (SC) 6 (State of NCT of Delhi Vs. Sunil & Anr.) which is as follows :
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CC No.41/2002
"The Court has to consider the evidence of the Investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. But if no witness was present or if no person had agreed to affix his signatures on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version, to be Contd/-36
CC No.41/2002 correct if it is not otherwise shown to be unreliable. It is and a legally approvable procedure to presume the police action as reliable to start with, not to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
47. In the ultimate analysis , there remains no doubt whatsoever that the defence evidence as discussed above does not succeed in probablising the defence plea of some persons persuading the accused to meet Sh. R. K. Sharma where the appeal was pending and to offer bribe to Sh. R. K. Sharma for getting his appeal accepted . Accused does not disclose as to who were the persons who had so ill advised the accused . Accused does not even assert that Sh. R. K. Sharma was a corrupt police officer. In fact, the conduct of Sh. R. K. Sharma in getting the present case registered shows that he was an honest police officer. In any case, there is no worthwhile rebuttable to the prosecution case which stands firmly established from the above discussed Contd/-
37CC No.41/2002 evidence.
CONCLUSION The net result of above discussion is that the prosecution case stands fully proved and the accused Daya Ram s/o Sh. Maadu Ram is guilty of committing offence u/s 12 of Prevention of Corruption Act, 1988 and he is resultantly convicted as such. He is on bail. His bail bond and surety bond is cancelled. He be taken into custody. He will be heard on the point of sentence on 09.07.07 (Announced in the open Court ) (SUNIL GAUR) Special Judge: Delhi 07.07.07 Contd/-
38CC No.41/2002 IN THE COURT OF SHRI SUNIL GAUR : SPECIAL JUDGE.DELHI CC No.41/2002 State Vs Daya Ram S/o Shri Maadu Ram R/o Village Nanglia Gujrawas, PO Mehara Jatuwas, Tehsil Khetri, District Jhunjhunu, Rajasthan FIR No.16/2000 u/s 12 of Prevention of Corruption Act 1988.
PS Anti Corruption Branch, GNCT, Delhi.
ORDER ON SENTENCE Once found guilty, severe punishment has to be inflicted upon the convict. This message has to be loud and clear to the corrupt. Any leniency shown to the corrupt would prove counter productive.
2. Shri Alok Saxena Addl. Public Prosecutor for the State and Shri H. R. Dhamija counsel for the convict Daya Ram (who is in custody) have been heard on the point of sentence and the record of this case is perused.
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3. Ld. counsel for the convict Daya Ram submits that the convict is aged 37 years having two minor children , and a house wife and there is no one else to look after his family as his parents have expired and two daughter of his uncle are dependent upon him and he is the sole bread earner of his family and he has got clean service record of more than seventeen years and so, a lenient view on the point of sentence should be taken.
4. Ld. Addl. Public Prosecutor for the State submits that the convict does not deserve any leniency as he had offered bribe money of Rs.19,000/- to Sh. R. K. Sharma the then Addl. Commissioner of Police and to curb this tendency , determent punishment needs to be imposed.
Nothing else is urged by either side.
5. In cases like present one, sentencing process has to be stern . To protect the society and to deter the corrupt, custodial sentence has to be imposed and it cannot be tempered with mercy .
6. In view of what is observed above and keeping in view the facts of this case, I sentence convict Daya Ram s/o Contd/-
40CC No.41/2002 Sh. Maadu Ram to undergo RI for a period of three and a half years and a fine of Rs. 10,000/- (Rupees ten thousand only) u/s 12 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of ten months.
7. The convict shall be entitled to benefit under section 428 Cr. P.C. A duly attested copy of the judgment and this order be supplied to the convict free of cost and thereafter file be consigned to the record room.
(Announced in the (SUNIL GAUR)
open Court on 09th Special Judge:Delhi
July, 2007)
Contd/-