Delhi District Court
State vs Om Parkash on 17 December, 2008
1
IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE : DELHI
C C No. 120/08
State V/s Om Parkash
S/o Sh. Ram Nath,
R/o Quarter No. 101,
P. S. Tilak Nagar, Delhi.
F. I. R No. : 02/2005
Under Section : 7/13 of Prevention of Corruption
Act ,1988
Police Station : Anti Corruption Branch
Date of Institution 17.3.06
Judgment reserved on 6.12.08
Judgment delivered on 13.12.08
JUDGMENT
In brief the case of the prosecution is that on 17.6.04 an accident was caused by Sh. Jagdambe Sharma, complainant of this case and for that case FIR No. 529/04 U/s 279/337 IPC was registered against him at PS Saraswati Vihar. Accused Om Parkash, Sub Inspector, was the Investigating Officer of that case. Jagdambe Sharma was admitted to police bail on that very day. However on 2.1.05 he was called by accused in the Police Station and he told the complainant that his surety wants to withdraw his surety and asked the complainant to produce another surety. Complainant 2 produced another surety. However accused demanded bribe of Rs. 5000/- for accepting the fresh surety bond. Complainant told him that he is poor person and is unable to pay Rs. 5000/- and ultimately accused agreed to accept Rs. 1300/- as bribe and asked the complainant to hand over the bribe amount on 8.1.2005 at about 5.00 PM at police station Saraswati Vihar. The complainant was against giving of bribe. He went to Anti Corruption Branch and gave his written complainant Ex. PW3/A in presence of panch witness Sh. Subhash Yadav. 2 The prosecution case further is that complainant has brought 2 GC notes of Rs. 500/- each and three GC notes of Rs. 100/- each and handed over the same to the Raid Officer Insp. K. L. Meena ( PW8). The Raid Officer recorded the serial numbers of those GC notes in his pre raid report Ex. PW3/B. Raid Officer applied phenolphthalein powder on those GC notes and gave a demonstration to the punch witness and complainant by touching the hand of punch witness with those treated GC notes and took wash of hand of punch witness in the solution of sodium carbonate and that solution turned into pink. Raid Officer explained the characteristic of the powder to the complainant and panch witness. The solution was thrown away. Thereafter all of them washed their hands. Thereafter Raid Officer instructed punch witness to remain close with the complainant and to over hear the conversation after being 3 satisfied that bribe had actually been given, punch witness was asked to give a signal by moving his hand on his head. Complainant was instructed likewise.
3 Prosecution case further is that at about 4.45 PM the Raid Officer , complainant, punch witness , Insp Hem Chand (IO ) and other members of raiding party left Anti Corruption Branch in a government vehicle and reached near PS Saraswati Vihar at about 5.15 PM. The government vehicle was parked at side of a park and Inspector Hem Chand remained in that vehicle along with driver. Complainant and punch witness were sent to the PS Saraswari Vihar and the Raid Officer along with members of the raiding party took their suitable positions near PS Saraswati Vihar.
4 The prosecution case further is that after about 3-4 minutes complainant and panch witness came at the main gate of PS and went to tea vendor near the PS where one person was already sitting. Complainant and panch witness and the third person started talking and Raid Officer along with members of raiding team kept on watching. At about 5.45 PM Investigating Officer received pre determined signal and Raid Officer along with the raiding team rushed to the tea vendor where complainant, panch witness and accused were present. Panch witness informed the Raid Officer that accused 4 demanded and accepted bribe money of Rs. 1300/- from the complainant. Raid Officer disclosed his identity and challenged the accused that he had accepted bribe of Rs. 1300/- from the complainant. Accused got frightened and threw the GC notes of Rs. 1300/- which he was carrying in his right hand. On the instruction of Raid Officer panch witness lifted the GC notes and compared serial numbers of those GC notes with the serial numbers mentioned in the pre raid report and they were found to be same. Those recovered GC notes were taken into possession vide seizure memo Ex. PW3/D. The right hand wash of the accused was taken in the colourless solution of sodium carbonate which turned into pink. The solution so prepared was transferred separately in two empty, small clean bottles which were sealed with the seal of KLM. Marked paper slip RHW I-II were pasted on that bottles after obtaining the signature of punch witness and complainant. Investigating Officer prepared the sample seal. Those bottles, pulanda of pant and sample seal were taken into possession vide memo Ex. PW3/E. Raid Officer drawn post raid proceedings Ex. PW3/C. The Raid Officer prepared the rukka Ex. PW8/A and sent Mahipal to PS Anti Corruption Branch for registration of the case. Insp. Hem Chand ( IO ) was called at the spot and Raid Officer handed over the custody of accused, case property, recovered GC notes, exhibits of this case, seizure memos and copy of raid report to him for investigation. Thereafter IO prepared the site plan Ex. 5 PW10/A at the instance of complainant and punch witness. He interrogated the accused and arrested him vide arrest memo Ex. PW3/F and took his personal search vide personal search memo Ex. PW3/G. Thereafter medical examination of accused was conducted at Aruna Asaf Ali Hospital and then accused was taken to PS Civil Lines where he was put in lock up and Investigating Officer deposited the case property in the malkhana. During the course of investigation Investigating Officer collected the bio data, transfer and posting order of accused. He sent the exhibits to FSL and obtained the result. He sent request u/s 19 Prevention of Corruption Act ,1988 for obtaining the sanction and during investigation received the sanction. IO after completing the investigation filed the charge sheet in the court.
5 After complying with the provisions of Section 207 Cr. P. C. and after hearing the Ld. Addl. PP for the state and ld. Counsel for accused charge was framed against the accused . 6 In order to prove its case prosecution examined 10 witness to prove its case.
7 Thereafter statement of accused was recorded u/s 313 Cr. P. C. He claimed to be innocent and falsely implicated in this case.
68 I have heard Sh. Alok Saxena ld. Addl. PP for state and Sh. R. S. Singhal Ld. Counsel for accused. 9 It is submitted by ld. Counsel for accused that sanction was not properly accorded rather the sanctioning authority put his signature on the draft performa without application of the mind. I do not find any force in the submission of ld. Defence counsel. In order to prove the sanction prosecution examined Sh. Virender Singh Addl. Commissioner of Police ( PW7). He deposed that on 21.9.2005 he was posted as DCP North West District and on that day he received a request for according sanction and he after perusing the copy of the FIR, raid report and seizure memo and after considering the facts and circumstances of the case and after due application of the mind accorded the sanction Ex. PW7/A. He denied the suggestion that he put his signature on the draft performa and did not apply his mind before according the sanction. It is clear from the statement of the sanctioning authority that sanction was accorded after due application of the mind and the sanction Ex. PW7/A is a detailed sanction wherein the facts of the case were detailed and were considered by the sanctioning authority.
10 It is further submitted by ld counsel for accused that 7 sanctioning authority had not given personal hearing to the accused before granting of sanction. It is true that personal hearing was not given to the accused before according of the sanction. The law is settled that no personal hearing is required to be given to the accused before according of the sanction. Reference is placed on case of Suptd. Of Police ( CBI ) V/s Deepak Chaudhary 1996 Criminal Law Journal 405 ( SC ). It is proved beyond doubt that sanction was properly accorded. 11 It is submitted by ld. Defence counsel that in a bribe case the prosecution is required to prove demand, acceptance and recovery of the bribe amount. It is submitted by him that there is no0ting on the record to show that accused ever demanded or accepted the bribe amount. It is further submitted by him that even the GC notes were recovered from the ground and were not recovered from the person of the accused. It is further submitted by him that neither the complainant nor the panch witness supported the prosecution case. It is further submitted by him that they were cross examined at length by the Addl. PP for state with the leave of the court but nothing material was elicited when they were cross examined by the ld. Addl. PP for the state. He has referred to case of Smt. Meena Balwant Hemke V/s State of Maharashtra AIR 2000 Supreme Court 3377. In that case it was held that mere recovery of currency note of Rs. 20/- 8 denomination and that too lying on the pad on the table, by itself cannot be held to be proper and sufficient proof of acceptance of the bribe by the accused. It was further held that such recovery also lend credence to the case of the accused that it fell on the table with the process of accused pushing it away with her hands when attempted to be thrust into her hands by the complainant. The result of phenolphthalein test viewed in this contact the accused could have also come into the contact of currency note when she pushed it away with her hands cannot by itself be considered to be of any relevance to prove that accused really accepted the bribe amount specially when the shadow witness did not support the prosecution case and the other shadow witness was not examined.
12 I have carefully considered the judgment cited by ld. Defence counsel but same is not applicable to the facts and circumstances of the present case. It is true that neither the complainant nor the panch witness supported the prosecution case. They were declared hostile. But it is equally true that prosecution case cannot be thrown to winds simply because the panch witness and the complainant were won over by the accused as that would amount to giving premium on the fraud. 13 It is submitted by ld defence counsel that since the 9 complainant and panch witness did not support the prosecution case hence the statement of Raid Officer that when he challenged the accused that he had accepted the bribe amount from the complainant and then the accused got frightened and threw the GC notes which he was holding in his right hand cannot be believed for two reasons. Firstly because the same is not corroborated either by the complainant or by panch witness and secondly the Raid Officer is an interested witness and is always interested in the success of his case. 14 The question whether a Raid Officer is an interested witness or not was considered by a three Judge Bench of Hon'ble Supreme Court in case of State of UP V/s Dr. G. K. Ghosh AIR 1984 Supreme Court 1453 wherein in para 11 it was held as under :-
" It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party namely that he is an interested witness. This is true, but only to an extent. He is interested in the success of the trap to ensure that a citizen who complains of harassment by a Government officer making a demand for illegal gratification is protected and the role of his department in the protection of such citizen is vindicated. Perhaps it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns a feather in his cap. At the 10 same it must be realises that it is not frequently that a police officer, himself being a Government servant , would resort to perjury and concoct evidence in order to rope in an innocent Government servant. In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to expect the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the fact of the complainant, thereby compromising his own conscience. The Court may therefore, depending on the circumstances of a case, feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant that the police officers even if the trap witnesses turn hostile or are found not be independent.
15 It is not that the complainant and the panch witness have not supported the prosecution case at all. It is settled law that statement of a witness who has been declared hostile is not effaced from the record and that part of the statement of hostile witness which is corroborated by the other witness can easily be acted upon.
16 It is not in dispute that the accused was Investigating Officer of that accident case in which the complainant was involved. It is also not in dispute that accused admitted the 11 complainant on police bail in that case. It is submitted by ld defence counsel that there was no occasion for the accused to accept the bribe amount as he had already accepted the surety bond of the accused and there was no question on the part of the accused to ask the complainant to furnish the fresh surety bond as his earlier surety wanted to withdraw the surety. It is submitted by him that challan was already filed in the court and it was for the court to accept the surety bond. It is submitted by him that in fact the complainant wanted help of accused to engage a counsel for him for that accident case as the advocates were charging high fee which was beyond the capacity of the complainant and complainant asked the accused to engage a counsel for him for Rs. 1300/- and when accused told him that it was not his job to engage a counsel for him and abused him, the complainant got annoyed and got the accused falsely trapped in this case. The submission of ld defence counsel that the challan was already filed in the court and there was no occasion for the accused to call the complainant in January 2005 at police station for the change of surety is against record. In fact the case file was with the accused even in January 2005 because the challan was filed in the court on 2.4.2005 and on that very day court had accepted the surety bond. So in January 2005 the file was very much with the accused.
1217 Complainant Jagdambe Sharma ( PW3 ) deposed that a case was registered against him at PS Saraswati Vihar and accused was Investigating Officer of that case and he was admitted to bail . He received a verbal intimation from PS Saraswati Vihar that surety of his case has withdrawn himself and when he went to PS in January 2005 accused asked him that he should appear before the court to obtain bail. Accused did not ask for any bribe and on the persuasion of some body he went to Anti Corruption Branch and gave a complaint on their dictation which is signed by him. He also took with him Rs. 1300/- which he gave to the Investigating Officer . He also deposed that panch witness also signed his complaint. He also deposed that he along with that panch witness and officials of Anti Corruption Branch went to Saraswati Vihar in a government vehicle. He along with the panch witness went inside the police station and there he came to know that accused would be available at a tea stall outside PS Saraswati Vihar and he along with public witness came out of PS and went to tea stall and met the accused and asked the accused to engage a counsel for his bail as advocates were demanding huge fee which he was unable to pay. He also asked accused to get engage a counsel for Rs. 1300/- and accused absued him by saying that that is not his work . Then he forcibly offered him money which he refused by pushing his hand with his right hand and in the process money fell down on the ground. The complainant has 13 concocted his version of engaging of counsel only at the behest of the accused. In the complaint he had specifically mentioned that the bribe amount was demanded by the accused for acceptance of fresh surety bond. The specific amount of Rs. 1300/- was mentioned and complainant took with him Rs. 1300/- which he handed over to Raid Officer. Even panch witness deposed that complainant gave Rs. 1300/- to the Raid Officer and Raid Officer treated those GC notes with phenolphthalein powder and gave demonstration . He also deposed that he along with complainant and raiding team went to PS Saraswati Vihar. Like the complainant he too turned hostile and deposed that complainant tried to gave GC notes to the accused but he refused to take and pushed away the hand of complainant and in that process GC notes fell down on the ground. He too turned hostile just to help the accused. So what is proved even from the statement of complainant and panch witness is that complainant went to Anti Corruption Branch , gave the complaint Ex. PW3/A and also gave GC notes to the Raid Officer . The GC notes were treated with the phenolphthalein powder and handed over to the complainant. Complainant came to PS Saraswati Vihar and met the accused and offered GC notes to the accused.
18 Panch witness in his cross examination admitted that he is graduate and in ordinary course of his duty he signs the 14 document after going through the same and he did not report either in his office or to the senior officers of Anti Corruption Branch that police had obtained his signature without allowing him to go through the same. He signed the pre raid and post raid proceedings. He is an educated person . He was in employment of the government. The post raid proceedings were prepared on the basis of what has been seen by him and in the post raid proceedings he specifically stated that accused demanded and accepted the bribe amount with his right hand and such a thing which is seen and heard by him and is mentioned in the panchnama and is not hit by sec 162 of Cr. P. C. Reference is placed on the Judgment of Hon'ble Supreme Court in case of Santa Singh V/s State of Punjab AIR 1926 Supreme Court 526 wherein it was held that mere presence of a 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 things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him, it would not fall within the mischief of section 162 of the Code.
19 It is submitted by ld. Counsel for the accused that it is not safe to base conviction on the solitary statement of Raid Officer specially when complainant and panch witness have turned hostile. I do not find any force in the submission of ld. 15 Defence counsel .The law is that even if the complainant and punch witness have turned hostile, the conviction can be made on the solitary statement of the trap officer without corroboration if it inspire confidence. 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 16 be examined as he became insane and other punch witness turned hostile. The conviction was based on the 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 unhesitantingly agent the evidence of such an officer."
20 There is no reason to disbelieve the statement of the Raid Officer that when he challenged the accused regarding acceptance or bribe amount, accused got frightened and threw the GC notes on the ground which he was carrying in his right hand.
21 Here it is relevant to refer to the recent judgment of 17 Hon'ble Supreme Court in case of Raj Rajendra Singh Seth @ R. P. S. Seth V/s State of Jharkhand and Another 2008 X AD ( S. C. ) 352 where in para 9 it was held as under:-
In B. Noha V/s State of Kerela and Anr (2006 (12) SCC 277 ) it was, inter alia, observed by this court as follows:
'10 The evidence shows that when PW-1 told the accused that he had brought the money as directed by the accused, the accused asked PW-1 to take cut and give the same to him. When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in this particular case. It was held by this Court in Madhukar Bhaskarrao Joshi V/s State of Maharashtra ( 2000 (8) SCC 571) as follows:
"12 The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted as 'motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premises that there was payment of gratification. 18
This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification" or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the work 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.
11 This decision was followed by this Court in M. Narsinga Rao V/s State of A. P. ( 2001 ( 1 ) SCC 691). There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW-1. It was held in the decision in State of A. P. V/s Kommaraju Gopala Krishna Murthy (2000 ( 9 ) SCC 752), that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. Th at burden was not discharged by the accused."
22 The statement of the Raid Officer that when he challenged the accused that he had accepted the bribe of Rs. 1300/- from the complainant and accused got frightened and threw the GC notes which he was carrying in his right hand remained unchallenged. No suggestion was put to him in the cross examination that accused was not frightened when 19 challenged. The conduct of the accused is relevant under section 8 of the Evidence Act. Here it is useful to refer to 23 Here it is useful to refer to the judgment of the Apex Court reported as Parkash Chand V Delhi Admn. AIR 1979 SC 400 wherein in para 8 of the judgment Their Lordships observed as under :-
It was contended by the ld. Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by section 162 Criminal Procedure Code. He relied on a decision of the Andhra Pradesh High Court in D. V. Narisimhan V. State, ( AIR 1969 Andh Pra 271 ) . We do not agree with the submissions of Sh. Anthony. There is a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by sec. 162 Criminal Procedure Code. What is excluded by Sec. 162 Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person ( not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstances, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, u/s 8 of the 20 Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act ( vide Himachal Pradesh Administration Vs. Om Parkash AIR 1972 SC 975) 24 It is proved beyond doubt that accused accepted the bribe amount with his right hand and when the Raid Officer challenged him he threw the same on the ground and on asking of Raid Officer the bribe amount was lifted from the ground by the panch witness and number of GC notes tallied with those recorded in pre raid proceedings. The right hand wash of accused turn pink and the FSL report Ex. PW gave positive test for the presence of phenolphthalein powder. In order to explain the wash of hand of accused turning pink the complainant and panch witness turned hostile and deposed that when complainant tried to thrust the money into the hand of accused, accused pushed the hand of the complainant and in the process GC notes fell down on the ground but they could not succeed as Raid Officer categorically deposed that accused was holding the GC notes in his hand and when he challenged him that he accepted the bribe amount he threw the GC notes on the ground. The Raid Officer was not bearing any animus against the accused. There was no reason for him to falsely implicate his fellow police officer. In view of the law stated above there is no reason to disbelieve the statement of Raid Officer .21
In view of the above discussion, I am of the view that prosecution is able to prove its case against accused Om Parkash beyond all reasonable doubt. Accused Om Parkash is accordingly held guilty and convicted for committing offences U/s 7 and 13 (1 ) (d) punishable U/s 13 (2 ) of Prevention of Corruption Act, 1988 . Let he be heard on the point of sentence.
Announced in the open court on this 13th day of December, 2008.
( A. S. YADAV ) SPECIAL JUDGE DELHI 22 IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE : DELHI C C No. 120/08 State V/s Om Parkash S/o Sh. Ram Nath, R/o Quarter No. 101, P. S. Tilak Nagar, Delhi.
F. I. R No. : 02/2005 Under Section : 7/13 of Prevention of Corruption Act ,1988 Police Station : Anti Corruption Branch ORDER ON SENTENCE
I have heard Sh. Alok Saxena Addl. Public Prosecutor for the State and Sh. R. S. Singhal, Advocate for the convict (who is present on bail) on the point of sentence. 2 Ld. counsel for the convict submits that the convict is aged about 60 years and has wife and three children to support and he is the sole bread earner of his family. It is further submitted by him that convict is facing trial for the last four year and is going to retire after two months. It is prayed that a lenient view on the point of sentence be taken.
3. Ld. Addl. Public Prosecutor states that the convict 23 does not deserve any leniency because there is rampant corruption amongst public servants and to curb this evil, deterrent punishment should be imposed.
4 After having heard both the sides and upon perusal of the record, I find that it is difficult to accept the prayer of the convict that a lenient view be taken in this case. Corruption is rampant in this country, that it requires all possible measures to remove the same from the polity. Today, it seems that honesty is a very rare need. Very few person muster the courage to report the matter regarding demand of bribe. Otherwise, under compulsion they are forced to pay the same. With the result, bribe takers virtually have no fear. No leniency is to be shown to such offenders.
5 Keeping in view the facts and circumstances of this case, I sentence convict Om Parkash s/o Sh. Ram Nath to undergo RI for a period of two years and a fine of Rs. 5000/- (Rs. Five thousand) u/s 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall undergo SI for a period of two months. Convict is further sentenced to undergo RI for a period of two years and a fine of Rs. 5000/- (Rs. Five thousand) u/s 13 (2) of the Prevention of Corruption Act, 1988 and in default of payment of fine, convict shall further undergo SI for a period of two months. Both the sentences shall run 24 concurrently and the convict shall be entitled to benefit under section 428 Cr. P.C. 6 A duly attested copy of the judgment and this order be supplied to the convict free of costs and thereafter file be consigned to the record room.
Announced in the open court on this 17th day of December 2008 ( A. S. YADAV ) SPECIAL JUDGE DELHI.