Delhi District Court
State vs . 1. Mansa Ram on 30 April, 2012
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 16/12
Unique Case ID : 02401R0204022010
STATE VS. 1. MANSA RAM
S/o Sh. Bhagwa Ram
R/o VillPegan, PS Alewa,
Distt. Jind, Haryana.
2. SUMER SINGH
S/o Sh. Sukh Ram,
R/o VillKath Ka Mazra,
PO Kolila, Distt. Alwar,
(Rajasthan)
FIR NO. : 112/08
U/S : 7/13 Prevention of Corruption Act,
1988
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 13.05.2010
Judgment reserved on 28.04.2012
Judgment delivered on 30.04.2012
C.C. No. 16/12 Page No. 1 of 38
JUDGMENT
1. The precise case of the prosecution is that in April, 2008 when PW9 Inspector Suraj Bhan was posted as Inspector (Investigation) in PS Civil Lines, on receipt of the letter from the Office of Deputy Commissioner of Police, Prov and Logistic, Delhi as addressed to the Deputy Commissioner of Police, North District, Delhi with regard to the complaint by Constable (Mtd) Navratan, No. 743/L as against ASI (Mtd) Mansa Ram, No.1076/D for demand and acceptance of bribe of Rs.1200/ for his transfer to PTC Jharoda, case was registered vide FIR Ex.PW5/A. As per said complaint, the negotiation between the complainant Ct.Navratan and ASI Mansa Ram and the conversation made during it was recorded by Ct.Navratan on his mobile phone. Said complaint was earlier marked to Sh.K.N.Haridas ACP/CSA and on inquiry, the allegation of demand and acceptance of bribe of Rs.1200/ as against ASI Mansa Ram was found to be correct and therefore, the Inquiry Report was submitted to Joint CP (P & L) who ordered for the registration of a case. Accordingly, the original complaint of Ct.Navratan alongwith two CDs containing the conversation between Ct.Navratan and ASI Mansa Ram were sent for registration of the case by Deputy Commissioner of Police (P & L), Delhi in pursuance of which case C.C. No. 16/12 Page No. 2 of 38 was registered on dated 2.5.2008 at PS Civil Lines vide copy of FIR Ex.PW5/A.
2. During the course of the Investigation, the voice sample of both the accused Mansa Ram and Sumer Singh were obtained and the same besides the relevant exhibits were got examined in FSL, Rohini and FSL Report Ex.PW9/H was obtained and statement of the complainant was recorded. Accused Mansa Ram was arrested vide Arrest Memo Ex.PW9/K and his personal search was conducted vide Memo Ex.PW9/L and his Disclosure Statement Ex.PW9/J was recorded. Accused Sumer Singh was also arrested vide Arrest Memo Ex.PW1/B and his personal search was conducted vide Memo Ex.PW1/C and his Disclosure Statement was recorded vide Memo Ex.PW1/D. During the course of the Investigation, IO also obtained the call details besides the Sanction Order and Duty Roaster. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
3. 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 7 of the Prevention of Corruption Act, 1988 and C.C. No. 16/12 Page No. 3 of 38 Section 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 was framed against both the accused on 14.12.2010 to which they pleaded not guilty and claimed trial.
4. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 16 prosecution witnesses namely ASI Ram Teerath as PW1, Inspector Surinderjeet Singh as PW2, HC Rakesh, a formal witness as PW3, Ct. Om Singh, a formal witness as PW4, HC Mahinder Singh, Duty Officer at PS Civil Lines, a formal witness as PW5, Inspector Om Prakash, a formal witness as PW6, Ct.Navratan, Complainant as PW7, Ct. Vijay Kumar as PW8, Inspector Suraj Bhan as PW9, HC Jitender, the then MHC(M), PS Civil Lines, a formal witness as PW10, ASI Sunita, a formal witness as PW11, Tarun Khuranna, Nodal Officer from Bharti Airtel Ltd., a formal witness as PW12, W/ASI Kiran Manchanda a formal witness as PW13, W/ASI Neera Rani, a formal witness as PW14, B.K.Mishra, DCPII Batallion, DAP, Delhi, Sanctioning Authority as PW15 and ACP Vimlesh Yadav/IO as PW16.
5. After closure of the PE, statement of both the accused under Section 313 Cr.P.C. were recorded in which they denied about any C.C. No. 16/12 Page No. 4 of 38 demand and acceptance of the bribe from the complainant and claimed to be falsely implicated in this case having no concern with the alleged offence.
6. I have heard Final Arguments as addressed by Sh. Binod Agarwal, Adv. Ld. Counsel for the accused Mansa Ram, Sh. Rupansh Purohit, Adv. Ld. Counsel for the accused Sumer Singh and Sh. Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record.
7. It is submitted by Ld. Counsel for the accused Mansa Ram that this accused is innocent and has neither demanded nor accepted any bribe from the complainant. It is further added by him that the complainant has falsely implicated this accused due to malafide motive and the complainant is not reliable being interested witness and is an accomplice and he himself was placed under suspension. It is also added by him that even otherwise there is nothing on record as to when the bribe amount was demanded and as to when the bribe amount was paid by the complainant. It is also added by him that the Sanction Order Ex.PW15/A concerning this accused has been passed by the Sanctioning Authority mechanically without proper application C.C. No. 16/12 Page No. 5 of 38 of his mind on the material on record. It is further added by him that said Sanction Order is defective as PW15 Sh. B.K.Mishra, Sanctioning Authority has clearly admitted in his cross examination that he has not heard the conversation of negotiation amongst the accused and the complainant as alleged to have recorded on the mobile phone by the complainant Ct.Navratan. It is further added by him that this accused Mansa Ram was merely posted as ASI in Mounted Police and he was not competent to transfer the complainant Ct.Navratan to PTC Jharoda as it is DCP (P & L) who was competent to transfer the lower subordinate and upper subordinate of the Mounted Staff as found from the deposition of PW13 and PW14 and therefore, there was no occasion on the part of this accused Mansa Ram to demand and accept any bribe through co accused Sumer Singh for transfer of the complainant to PTC Jharoda. It is further added by him that even the original Complaint is not available on the record and said fact has been duly admitted by the IO in this respect. It is also added by him that the mobile phone on which the complainant is stated to have recorded the alleged conversation of negotiation between the accused and the complainant, was neither seized by the IO nor produced in the court nor the IO has examined the Owner of said mobile phone and same are fatal for the case of the C.C. No. 16/12 Page No. 6 of 38 prosecution. It is also added by him that there are several contradictions in the deposition of various PWs on different aspects and same falsify the case of the prosecution. It is also added by him that even as per PW7/complainant, the mobile chip on which he recorded the conversation of negotiation remained with him from the date of recording till 1.7.2008 and therefore, the manipulation on said chip cannot be ruled out. It is also added by him that the transcript of conversation Ex.PW7/D is neither dated nor signed by the IO nor the IO stated as to when it was prepared and as to how it was prepared and as the CD of the chip was never deposited in Malkhana and even PW9 could not state as to when the CD was received and the transcript of conversation cannot be looked into as against this accused. It is also added by him that even otherwise in the said transcript, there is no demand of bribe as against this accused Mansa Ram, same can be of no help for the prosecution. Ld. Counsel thus urged for acquittal of this accused Mansa Ram.
8. Similarly, it is submitted by Ld. Counsel for the accused Sumer Singh that this accused is innocent and has been falsely implicated in this case. It is further added by him that this accused has neither demanded nor accepted any bribe from the complainant. It C.C. No. 16/12 Page No. 7 of 38 is further added by him that though PW7/complainant has deposed that he recorded the conversation of negotiation on his mobile and sent one CD alongwith his Complaint but said CD has not been produced and same is fatal for the case of the prosecution. It is also added by him that the IO has not seized and produced the mobile phone on which the alleged conversation of negotiation was recorded by the complainant nor IO has referred about the ownership of said mobile phone nor examined the Owner of said mobile phone and therefore, the alleged transcript of conversation can be looked into being not admissible in view of Section 65 (B) of Indian Evidence Act. It is also added by him that even otherwise said transcript does not establish the demand and acceptance of the bribe as against this accused. It is also added by him that the possibility of tampering the said mobile chip on which alleged conversation was recorded, cannot be ruled out and therefore, the same is not legally admissible. It is also added by him that the Sanction as passed by PW15 is not legally valid as he has mechanically passed the Sanction Order and he has not heard the conversation of CD. It is further added by him that PW7/complainant is an interested witness and therefore, his deposition cannot be treated as trustworthy and reliable. Thus, Ld. Counsel urged for acquittal of this accused Sumer Singh. Ld. Counsel C.C. No. 16/12 Page No. 8 of 38 has referred and relied upon the judgment reported as (1979) 4 Supreme Court Cases 725.
9. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 16 PWs have clearly established its case as against both the accused 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 the prosecution has clearly established its case regarding demand and acceptance of the bribe as against the accused persons from the complainant through the deposition of PW7/CT.Navratan, complainant, PW8/ Ct.Vijay Kumar, PW9/Inspector Suraj Bhan and PW16/ACP Vimlesh Yadav/IO and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that there is no reason as to why PW7/CT.Navratan, complainant, PW8/ Ct.Vijay Kumar, PW9/Inspector Suraj Bhan and PW16/ACP Vimlesh Yadav/IO would falsely implicate the accused persons specifically when there is no previous enmity as against the accused persons by them. It is further added by Ld. Addl. PP that the Sanctioning Authority, PW15 has passed the valid Sanction as against both the accused persons after due appreciation of the relevant materials and therefore, there is no infirmity in the said Sanction C.C. No. 16/12 Page No. 9 of 38 Order Ex.PW15/A. It is further added by Ld. Addl. PP that mere discrepancy in the deposition of certain PWs as pointed out by Ld. Counsel for the accused are merely formal in nature and is because of the time gap between the period of incident and deposition of PWs in the court and the case of the prosecution cannot be thrown out merely on the said ground. Ld. Addl. PP for the State has added that the prosecution has been successful in establishing its case as against both the accused for the charged offence and hence, they deserves to be convicted.
10. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction has been accorded by the Competent Authority as against both the accused as per Section 19 (1) of Prevention of Corruption Act, 1988. During course of argument, it is submitted by Ld. Counsel for the accused Sanction Order Ex.PW15/A concerning this accused has been passed by the Sanctioning Authority mechanically without proper application of his mind on the material on record. It is further added by him that said Sanction Order is defective as PW15 Sh. B.K.Mishra, Sanctioning Authority has clearly admitted in his cross examination that he has not heard the conversation of negotiation C.C. No. 16/12 Page No. 10 of 38 amongst the accused and the complainant as alleged to have recorded on the mobile phone by the complainant Ct.Navratan. Similarly, it is submitted by Ld. Counsel for the accused Sumer Singh that the Sanction as passed by PW15 is not legally valid as he has mechanically passed the Sanction Order and he has not heard the conversation of CD. To the contrary, it is submitted by Ld. Addl. PP on behalf of the State that the Sanctioning Authority, PW15 has passed the valid Sanction as against both the accused persons after due appreciation of the relevant materials and therefore, there is no infirmity in the said Sanction Order Ex.PW15/A.
11. That in order to prove the Sanction concerning both the accused, the prosecution has examined PW15 Sh.B.K.Mishra, the then DCP, Prov & Logistics, (DE Cell), Delhi who has categorically deposed that Ct.Navratan had submitted a complaint as against ASI Mansa Ram who had demanded and accepted Rs.1200/ from him for his transfer to PTC and the conversation regarding this aspect has been recorded by Ct.Navratan on his mobile phone and said complaint was marked to the then ACP/CSA K.N.Haridas who found said allegation to be correct during inquiry and in pursuance of order passed by Joint CP (P & L), FIR 112/08 U/S 7/13 of Prevention of C.C. No. 16/12 Page No. 11 of 38 Corruption Act was registered at PS Civil Lines, New Delhi and Investigation was taken up by ACP Vimlesh Yadav. Said PW15 has further deposed that he being competent Authority to remove accused ASI Mansa Ram and HC Sumer Singh from service, after careful examination of the material as placed before him with regard to said act and allegation and circumstances of the case and after due application of mind, he accorded Sanction U/S 19 of Prevention of Corruption Act, 1988 to prosecute both the accused persons vide Sanction Order Ex.PW15/A which bears his signature at point A. In the cross examination by Ld.Defence Counsel, said PW15 has clearly stated that though he had not heard the conversation regarding the negotiation as made between the accused and the complainant but he had gone through the transcript of the same. Furthermore, from the perusal of the Sanction Order Ex.PW15/A, it is also reflected that all the relevant facts concerning the allegation as against the accused have been duly found mentioned therein.
12. In the case reported as State of Maharashtra and ors V/s Ishvar Piraji Kelpatri & ors 1996 Cri.L.J.1127, where Hon'ble Supreme Court had laid down that if the Authority according Sanction makes statement that while signing the order of Sanction, it had C.C. No. 16/12 Page No. 12 of 38 personally scrutinized the file and had arrived at required satisfaction, it is not necessary to look for, that there was application of mind or not or that material on record was examined by the concerned officer or not before according sanction, especially when order prima facie shows that, he had done so.
13. Furthermore, in the case reported as 2004 (13) SCC 487, Shankar Bhai Lalji Bhai Vs. State of Gujrat, it was observed by Hon'ble Supreme Court of India as under: "So far as the question of Sanction is concerned, in the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
14. In the case reported in 2011 I AD (CRI.) (S.C.) 1, Kootha Perumal Vs. State (through) Inspector of Police, Vigilance & Anti Corruption, it was held in Para 14 by Hon'ble Supreme Court of India as under: "Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction C.C. No. 16/12 Page No. 13 of 38 order in the present case was not valid. Ex.P2 with the present appeal is the copy of the sanction order. A perusal of the same would show that the sanctioning authority has adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also states that the other materials such as copy of the FIR as well as other official documents such as the different mahazars were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal".
C.C. No. 16/12 Page No. 14 of 38
15. By taking cue from the aforesaid judgment and applying the same to the facts of the present case, I do not find any force in the submission of Ld. Counsel for the accused to the effect that Sanction Order has been passed mechanically as I am of considered view that the Sanction concerning both the accused Mansa Ram and Sumer Singh have been validly granted by PW15 Sh.B.K.Mishra who was competent to do so.
16. That during the course of argument, it is submitted by Ld. Counsel for the accused Mansa Ram that this accused is innocent and has neither demanded nor accepted any bribe from the complainant. It is further added by him that the complainant has falsely implicated this accused due to malafide motive and the complainant is not reliable being interested witness and is an accomplice and he himself was placed under suspension. It is also added by him that even otherwise there is nothing on record as to when the bribe amount was demanded and as to when the bribe amount was paid by the complainant. Similarly, it is submitted by the Ld. Counsel for the accused Sumer Singh that this accused is innocent and has been falsely implicated in this case. It is further added by him that this accused has neither demanded nor accepted any bribe from the C.C. No. 16/12 Page No. 15 of 38 complainant. It is also added by him that even the complainant had not made any allegation regarding alleged demand of bribe as against this accused in his complaint. On the other hand, it is submitted by Ld. Addl. PP for the State that prosecution has clearly established its case regarding demand and acceptance of the bribe as against the accused persons from the complainant through the deposition of PW7/CT.Navratan, complainant, PW8/ Ct.Vijay Kumar, PW9/Inspector Suraj Bhan and PW16/ACP Vimlesh Yadav/IO and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that there is no reason as to why PW7/Ct.Navratan, complainant, PW8/ Ct.Vijay Kumar, PW9/Inspector Suraj Bhan and PW16/ACP Vimlesh Yadav/IO would falsely implicate the accused persons specifically when there is no previous enmity as against the accused persons by them.
17. In order to prove that the accused persons have demanded and accepted the bribe amount from the complainant, the prosecution is found to have examined PW7 Ct.Navratan/complainant, PW8/Ct.Vijay Kumar, PW9/Inspector Suraj Bhan and PW16 ACP Vimlesh Yadav/IO. PW7 Ct.Navratan/complainant has clearly deposed before the court that while he was posted as Constable in C.C. No. 16/12 Page No. 16 of 38 Mounted Police on 21.2.08 he asked accused ASI Mansa Ram, Incharge (P & L) for his posting near to his house as treatment of his wife was going on, for which accused Mansa Ram responded that he has to do something for him and asked him to talk to coaccused HC Sumer Singh, Dana Incharge. So when the complainant met accused Sumer Singh and talked to him regarding his posting near to his house, he demanded Rs.15002000/ for choice posting and the complainant asked accused Sumer Singh to talk to accused Mansa Ram in this respect. Said PW7 further stated that after sometime he received phone call from accused Sumer Singh who informed him that accused Mansa Ram was demanding Rs.1500/ for his PTC transfer and on expressing inability to give such amount by the complainant, accused Sumer Singh responded again after talking to accused Mansa Ram that accused Mansa Ram had agreed to accept Rs.1200/ and demanded the said amount from the complainant. Said PW7 complainant has also deposed regarding giving of said amount of Rs.1200/ to accused Sumer for onwards delivery to accused Mansa Ram for getting his transfer to PTC, Jharoda Kalan. As regards the demand and acceptance of bribe by the accused Mansa Ram through the accused Sumer Singh, said PW7/complainant has deposed in this respect as under: C.C. No. 16/12 Page No. 17 of 38 "After a short time, I received a telephone call from accused Sumer who told me that accused SI Mansa Ram was demanding Rs.1500/ for RTC Transfer. On this I told him that I would not be able to give so much amount. On this accused Sumer told me that he would again talk to accused Mansa Ram and only then he would inform me. Thereafter accused Sumer again made telephone call to me and told me that accused Mansa Ram had agreed to accept RS.1200/ and he asked to give Rs.1200/. Accused Sumer further told that accused Mansa Ram would give posting of your choice and he further told in the same manner others were also getting posting of their choice. I recorded all these conversation in my mobile in order to highlight the increasing corruption. Thereafter, I gave Rs.1200/ to accused Sumer as a proof. Accused Sumer also told me that he had given said money to accused Mansa Ram and he further asked me to talk on telephone to accused Mansa Ram and to get it verified from accused Mansa Ram whether he had got the money or not. I was sent to PTC Jharoda Kalan.
C.C. No. 16/12 Page No. 18 of 38
Thereafter in order to confirm the said facts, I talked to accused Mansa Ram on phone and on my asking accused Mansa Ram told me that he had got and received said amount. I also told him that Rs.1200/ was higher to some extent. On this accused Mansa Ram told me that I would get 15% extra and on the basis of pay commission I would get Rs.2000/. Thereafter I talked to accused Sumer on phone who told me that he had given Rs.1200/ to accused Mansa Ram and on this I told to accused Sumer also that said amount was higher to some extent. On this accused Sumer told me that my work was done in lesser amount and he further told me that everyone used to give Rs.1000/ to Rs.2000/ to him for their work done and he further demanded that I would get 15% extra."
18. Said PW7/complainant further deposed that he recorded the conversation in his mobile chip 16 MB (copy) bearing no.0243893 and original of the same was 512 MB and after getting the copy of the same, he had sent it alongwith his Complaint to Commissioner of Police, copy of which is Ex.PW7/C bearing his signature at point A. C.C. No. 16/12 Page No. 19 of 38 He further deposed that on 6.3.08 he was called from PTC and was sent to Bela Road Farm and on 16.3.08 he was sent to PS Shahdara Gard where he was suspended on 9.4.08 and was sent to Line. He further deposed that later on he sent one Complaint by fax, copy of which is Ex.PW7/A bearing his signature at point A to Joint CP, Old Police Line, 5 Rajpur Road. Said PW7 also deposed that on 1.7.08 he produced before the IO the Mobile Chip No.512 MB containing the recording of conversation between him and the accused which was sealed and seized vide Seizure Memo Ex.PW7/B bearing his signature at point A. Said PW7 after hearing the conversation on playing through Laptop Computer one Audio CD which was taken out from sealed parcel sealed with seal of FSL, identified his voice as well as voice of both the accused and stated that said CD Ex.P3 was prepared on the basis of conversation recorded in Chips of his mobile phone and transcript of the said conversation is Ex.PW7/D. Said PW7 has also duly identified his Mobile Chip KINGMAX 512 MB, MMC Mobile as Ex.P4 wherein he had recorded the said conversation between him and accused Mansa Ram and Sumer Singh. Said PW7 in his cross examination by Ld. Counsel for the accused Mansa Ram has clearly stated that he was transferred by accused Mansa Ram and not by DCP. Said PW7 has also denied the suggestion that he used to C.C. No. 16/12 Page No. 20 of 38 roam here and there and used to ply the vehicles of the Officers against his duty. Said PW7 has also denied the suggestion of Ld. Counsel for the accused Sumer Singh that accused Sumer Singh did not demand any bribe from him or that he had not given any bribe money to accused Sumer Singh.
19. Similarly, PW8 Ct.Vijay Kumar deposed before the court that in the year 2008 he was posted as Constable in Mounted Police and he was called in Old Police Line from PTC Jharoda by accused ASI Mansa Ram I/C, P & L (Mtd) Gard. He further deposed that after few days accused Mansa Ram started saying him to go and report in PS Delhi Cantt.Gard in response to which he requested accused Mansa Ram to remain him posted there or to send him at PS Janak Puri or PS Nangloi as his father who was a heart patient had undergone operation few days back and his mother was hard of hearing, on which accused Mansa Ram demanded Rs.2000/ for his choice posting. Said PW8 further deposed that as he could not pay said amount to accused Mansa Ram, he directed him to report at PS Delhi Cantt. and thereafter, he joined at Delhi Cantt. Said PW8 further deposed that one day when he had come to Old Police Line and met accused Mansa Ram, he again demanded Rs.2000/ for his C.C. No. 16/12 Page No. 21 of 38 transfer of his choice. Said PW8 also deposed regarding seizure of Mobile Chip vide Seizure memo Ex.PW7/B by the IO in his presence and has identified the Mobile Chip as Ex.P4.
20. PW9/Inspector Suraj Bhan deposed that in the year 2008 when he was posted as Inspector, Investigation in PS Civil Lines, Letter Ex.PW9/A from DCP, P & L, Delhi being addressed to DCP, North District, Delhi with regard to the Complaint of Ct. Navratan as against accused Mansa Ram was marked to him vide Covering Letter Ex.PW9/B and making his endorsement Ex.PW9/C, he got the case registered vide FIR Ex.PW5/A. Said PW9 further deposed that he had received said Letter Ex.PW9/A alongwith copy of Complaint Ex.PW7/A. He also deposed that vide his Request Ex.PW9/E, he sent request for entrusting the Investigation of this case to some competent Officer.
21. PW16 ACP Vimlesh Yadav/IO has deposed that on 6.6.08 while she was posted as ACP in Civil Lines, after registration of this case, Investigation was assigned to her. During course of Investigation, she recorded the statement of Ct. Navratan and Ct. Vijay. She also stated to have seized the Mobile Chip from the C.C. No. 16/12 Page No. 22 of 38 complainant Ct.Navratan on 1.7.08 vide Seizure memo Ex.PW7/B bearing her signature at point C. She has also deposed that after obtaining the consent for giving voice sample from both accused Mansa Ram and Sumer Singh, their voice sample were taken at FSL Rohini and CD of the same was taken into possession by her from Inspector Suraj Bhan vide Seizure Memo Ex.PW1/A. She also deposed that she had prepared the transcript of conversation between the complainant and the accused which is Ex.PW7/D. She has also deposed that relevant exhibits were sent to FSL and FSL Report Ex.PW9/H was obtained after which accused Mansa Ram was arrested vide Memo Ex.PW9/K and his Personal Search Memo Ex.PW9/L and his Disclosure Statement Ex.PW9/J was recorded. Similarly, accused Sumer Singh was arrested vide Memo Ex.PW1/B and his Personal Search Memo Ex.PW1/C and his Disclosure Statement Ex.PW1/D was recorded. Said PW16 also deposed that she has obtained the Sanction Order Ex.PW15/A, call details, Duty Roaster and TransferPosting Order of the accused persons during the course of the Investigation. Said PW16 has clearly denied the suggestion that she has falsely implicated the accused persons in this case or that she has deposed falsely against the accused. C.C. No. 16/12 Page No. 23 of 38
22. From the perusal of the FSL Report Ex.PW9/H, it is reflected that said FSL Report concluded the results of examination in terms of the opinion as under: "On auditory analysis by critical listening and subsequent waveform and spectrographic analysis of the audio recording in CD marked Exhibit2, there is no indication of any form of alteration in audio recording."
Exhibit2 : One CDR of 'WRITEX', containing recorded conversation in two audio files namely "9818145824.amr" & "01123965921.amr." The speaker starts with "han, nameshkar han" on audio file "9818145824.amr" is marked as "ExhibitQ1"
and The speaker starts with "bat han pandit ji maharaj" on audio file "01123965921.amr" is marked as "ExhibitQ2" in the Laboratory.
The Voice Exhibit of speaker marked Exhibit Q1 (which is questioned voice of Mansa Ram) and Ex.VS1 (which is specimen sample voice of Mansa Ram) are voice of same person i.e. Mansa Ram with high probability.
The Voice Exhibit of speaker marked Exhibit Q2 (which is questioned voice of Sumer Singh) and Ex.VS2 (which is specimen C.C. No. 16/12 Page No. 24 of 38 sample voice of Sumer Singh) are voice of same person i.e. Sumer Singh with high probability.
23. During course of arguments, it is submitted by Ld. Counsel for the accused Mansa Ram that this accused Mansa Ram was merely posted as ASI in Mounted Police and he was not competent to transfer the complainant Ct.Navratan to PTC Jharoda as it is DCP (P & L) who was competent to transfer the lower subordinate and upper subordinate of the Mounted Staff as found from the deposition of PW13 and PW14 and therefore, there was no occasion on the part of this accused Mansa Ram to demand and accept any bribe through co accused Sumer Singh for transfer of the complainant to PTC Jharoda. From the perusal of the record, it is clearly reflected that during the relevant period i.e. February, 2008 accused ASI Mansa Ram was posted as Incharge (P & L), Delhi and the complainant Ct.Navratan was posted in Mounted Police at Police Line. PW2 Inspector Surinderjeet Singh, (P & L) has deposed in his examination in chief at the initial part as under: "In the month of February, 2008 I was posted as Insp. mounts as incharge. On 17.8.2009, I had joined the investigation of this case with the IO. On enquiry, I had C.C. No. 16/12 Page No. 25 of 38 told to IO that in the month of February, 2008 that accused ASI Mansa Ram was working as incharge mount, P&L Guard and accused HC Sumer Singh was working as Incharge, Mount Ration Store and Tej Singh was working as Syees (safai karamchari)."
Said PW2 in cross examination by Ld. Counsel for the accused has deposed as under: "DCP P&L was having power to transfer the mounted staff but in case of exigency, the power has been delegated through ACP / Inps. Mount / I/c P&L Guard i.e. accused Mansa Ram at that time. Delegation of power was not in writing but was made verbally. Verbal order can be given for a maximum period of 1 week and in case it was to be extended, verbal order was to be informed to Sr. Officials. It is incorrect to suggest that I was not having any delegated power to change the duties of the staff. It is incorrect to suggest that no power was given to me by way of delegation. I have been posted as I/c, P&L since November, 07 till date." C.C. No. 16/12 Page No. 26 of 38
24. In view of aforesaid deposition of PW2, it is clearly reflected that accused Mansa Ram who was posted as Incharge, P & L, Guard was also empowered to transfer the subordinate staff. Furthermore, PW7/complainant Ct.Navratan has also clearly deposed that after payment of bribe of Rs.1200/, he was transferred to PTC, Jharoda Kalan by accused Mansa Ram. 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 C.C. No. 16/12 Page No. 27 of 38 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 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."
25. During the course of the arguments, it is submitted by Ld. Counsel for the accused Mansa Ram that the complainant has falsely implicated this accused due to malafide motive and the complainant is not reliable being interested witness and is an accomplice and he himself was placed under suspension. Ld. Counsel for the accused Sumer Singh also submitted that PW7/complainant is an interested witness and therefore, his deposition cannot be treated as trustworthy and reliable. I have considered the submission of ld. defence counsel but do not find any force in that. So far as his contention that the statement of complainant cannot be acted upon without corroboration C.C. No. 16/12 Page No. 28 of 38 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 account of any rule of C.C. No. 16/12 Page No. 29 of 38 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. ''
26. Furthermore, the Hon'ble Supreme Court in case of M. O. Shamshuddin V/s State of Kerela 1995 ( 2 ) Crimes 284 considered the aspect and the Hon'ble Supreme Court in para 11 has held as under : Now confining ourself to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such case should not be subjected to the same rigorous tests which are C.C. No. 16/12 Page No. 30 of 38 generally applied to a case of an approver. Though bribe givers are generally treated to be treated in the nature of accomplices but among them there are various types and gradation In case under the Prevention of corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case whereever the complainant is filed there must be a person who has to give money to the accused which in fact is the bribe money which is demanded and without such a giving the trap cannot be succeed. When there is such a demand by the public servant from a person who is unwilling and if to do public good approaches the authorities and lodges complaint then in order that the trap succeeds he has to give the money. There could be another type of bribe giver who is always willing to give money in oder to get his work done and having got the work done he may send a complaint. Here he is a particeps criminis in respect of the crime committed and thus is an accomplice. Thus there are C.C. No. 16/12 Page No. 31 of 38 grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat or loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of "accomplices' by reason of their being bribe givers, in the first instance the court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances.
27. I do not find any force in the submission of Ld. Counsel for the accused persons for throwing out the case of the prosecution merely on account of the fact that the IO has not seized the mobile C.C. No. 16/12 Page No. 32 of 38 phone on which the complainant is stated to have recorded the alleged conversation of negotiations between the accused and the complainant nor produced the same in the court nor has examined the Owner of said mobile phone and same are fatal for the case of the prosecution. From the perusal of the record, it is reflected that though the IO has not seized the mobile phone as used by the complainant for recording the conversation of negotiation between the accused and the complainant, but IO has duly seized the required mobile chip KINGMAX 512 MB which is Ex.P4 which has been duly identified by the complainant as the mobile chip wherein he got recorded the conversation between him, Mansa Ram and Sumer Singh and said fact is also found corroborated from the deposition of PW16/ACP Vimlesh Yadav/IO and said chip is found to have been seized vide Seizure Memo Ex.PW7/B. In view of the same, I am of the considered view that nonseizure of the mobile phone and non examination of Owner of said mobile phone is of no consequence. Furthermore, I am of the considered view that mere lapse on the part of the IO cannot be a escape ground for the accused specifically when adequate incriminating material for the charged offence is 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 C.C. No. 16/12 Page No. 33 of 38 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 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)."
28. During the course of the argument, it is submitted by Ld. Counsels for the accused persons that there are several contradictions C.C. No. 16/12 Page No. 34 of 38 in the deposition of connected PWs on various aspects which falsify the case of the prosecution and pointed out following contradictions: (A) That PW4/ Ct.Om Singh submitted that one sealed envelope, one sealed cloth parcel, one unsealed CD and one unsealed adapter were deposited in Malkhana whereas PW16/IO has stated that four CDs were deposited in the Malkhana (B) That PW7/complainant at one stage stated that he has produced the mobile chip to the IO whereas said PW7 in his cross examination deposed that perhaps chip was given to Inspector Suraj Bhan on 1.7.2008.
(C) That PW7/complainant deposed that mobile chip was seized and converted into a sealed parcel which was sealed with the seal of SK whereas Ex.PW7/B Seizure Memo of said chip reflect that sealed parcel was sealed with the seal of SB.
29. I do not find any force in the aforesaid submission of Ld. Counsels for the accused persons in view of the fact that said contradictions appear to be on formal aspects and cannot be treated as unnatural because of the time gap between the period of incident and the deposition of the PWs before the court. My said view is also found supported from the law laid down by the Hon'ble Supreme Court C.C. No. 16/12 Page No. 35 of 38 regarding contradictions in case of Bharuda Broginbhai Harjibhai V/s State of Gujrat AIR 1983 SC 753 wherein it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance.
30. During the course of the arguments, it is submitted by Ld. Counsel for the accused Mansa Ram that as the original Complaint is not available on the record and the said fact is also admitted by the IO, the same is fatal for the case of the prosecution. No doubt, the original Complaint is not found available on the record but on seeing the copy of the Complaint which is Ex.PW7/C, complainant has stated that same is the copy of the Complaint as sent by him to the Commissioner of Police and said Complaint bears his signature at point A. PW7/complainant is also found to have deposed in the line of contents of said Complaint Ex.PW7/A. Said PW7 clearly deposed regarding the initial demand of Rs.1500/ by the accused Mansa Ram for his transfer and subsequent acceptance of bribe amount of Rs. 1200/ by coaccused Sumer Singh on behalf of accused Mansa Ram for his transfer. PW7/complainant has also clearly deposed regarding recording the conversation of negotiation through mobile phone and C.C. No. 16/12 Page No. 36 of 38 has identified the mobile chip KINGMAX 512 MB as Ex.P4 which has been seized by the IO/PW16 vide Seizure Memo Ex.PW7/B. It is further revealed from the deposition of PW16/IO that said chip was sent to FSL on 20.1.2009 for the purpose of identification of voice recording alongwith both accused ASI Mansa Ram and HC Sumer Singh. From the perusal of the statement of both the accused U/S 313 Cr.P.C. in response to the Question No.12, it is reflected that the factum regarding the seizure of chip of mobile phone vide Seizure Memo Ex.PW7/B and giving of consent by both accused for taking their voice sample, as per their reply in response to the information on Ex.PW16/A and Ex.PW16/B are found established. It is also reflected from the deposition of PW1 ASI Ram Teerath as well as PW9 Inspector Suraj Bhan that on 20.1.2009 the voice sample of accused Mansa Ram and Sumer Singh were recorded at FSL, Rohini vide two cassettes marked S1 and S2 which were collected by PW9 Inspector Suraj Bhan from FSL and were handed over to the IO which were seized vide Seizure Memo Ex.PW1/A. In view of the aforesaid material as available on the record including the FSL Report Ex.PW9/H, I do not find any force in the submission of Ld. Counsel for the accused persons to the effect that the transcript of conversation cannot be considered.
C.C. No. 16/12 Page No. 37 of 38
31. The net result of the aforesaid discussion is that the prosecution has been successful in establishing its case as against both the accused Mansa Ram and Sumer Singh for the charged offence. Hence, accused Mansa Ram and Sumer Singh are accordingly held guilty and convicted for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988.
Let both these accused be heard separately on the point of sentence.
Announced in the open court on this 30th day of April, 2012 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 16/12 Page No. 38 of 38