Delhi High Court
Hari Singh Yadav vs State on 18 February, 2014
Author: S.P.Garg
Bench: S.P.Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 24th SEPTEMBER, 2013
DECIDED ON : 18th FEBRUARY, 2014
+ CRL.A. 464/2004
HARI SINGH YADAV ..... Appellant
Through : Mr.Pawan Kumar, Advocate with
Mr.Nitin Kumar, Advocate.
VERSUS
STATE ..... Respondent
Through : Mr.P.K.Sharma, Standing Counsel
for CBI with Mr.A.K.Singh &
Mr.Bakul Jain, Advocates.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Hari Singh Yadav (the appellant) impugns a judgment dated 17.05.2004 of learned Special Judge, Delhi in RC No. 38 (A)/98, CC No. 125/2001 by which he was convicted under Section 7 and 13 (2) read with Section 13 (1)(d) of PC Act. By an order dated 18.05.2004, he was awarded rigorous imprisonment for two years with fine ` 5,000/- under Section 7 and rigorous imprisonment for three years with fine ` 5,000/- CRL.A. 464/2004 Page 1 of 22 under Section 13(2) read with Section 13(1)(d) of the PC Act. The substantive sentences were to operate concurrently.
2. In brief, the prosecution case is that on 13.07.1998, Gurcharan Singh lodged a written complaint with CBI alleging demand of bribe of ` 5,000/- by Hari Singh Yadav, Sub Inspector, PS Mehrauli from his sister Harbans Kaur for not implicating her and her husband in a false case. It was further alleged that due to failure to pay the bribe, Harbans Kaur and her husband were implicated in a case under Sections 107/150 Cr.P.C. for which a notice was delivered to appear before SDM on 14.07.1998. When the complainant and his sister contacted the accused on 13.07.1998 in his office, he repeated the demand of ` 5,000/- which on request was reduced to ` 15,00/- to be paid in the evening. Since the complainant was not willing to pay the bribe, he lodged the complaint with CBI. Further case of the prosecution is that the investigation was assigned to Insp. A.K.Singh who organised a trap team and arranged two independent witnesses Bajrang Bali and Devender. The complainant was introduced to both the independent witnesses as well as to the trap team members. The complainant produced a sum of ` 1,500/- in the form of 15 GC notes in the denomination of ` 100/- each. After noting down the numbers of GC notes in the handing over memo, the notes were treated CRL.A. 464/2004 Page 2 of 22 with phenolphthalein powder and a practical demonstration was given to all trap members. The powder treated notes were kept in the left side shirt pocket of the complainant with the direction to hand over the same to the accused on his specific demand of bribe and not otherwise. Devender was directed to act as shadow witness and to remain as close as possible to see the transaction of bribe money and to overhear the conversation between the complainant and the accused. He was further directed to give a signal by scratching his head with both hands after the transaction was over. After completing and recording pre-trap proceedings, the trap team left CBI office at 04.10 P.M. and reached at police station Mehtrauli at about 05.15 P.M. Further case of the prosecution is that the complainant and shadow witness Devender were directed to proceed inside the police station. Other team members were directed to take suitable position in the nearby area. Trap Laying Officer (TLO) and independent witness Bajrang Bali took suitable position. Complainant and Devender met the accused inside the police station and had formal conversation. Thereafter, the accused at the request of the complainant and shadow witness showed them the police station. They all came out of it and went to Verma Bakeries situated opposite to the police station. While moving outside the police station, the accused had a conversation regarding demand of bribe CRL.A. 464/2004 Page 3 of 22 with the complainant. It was further alleged that all of them took cold drinks at the bakery shop. While moving out of the shop, the accused demanded the bribe amount from the complainant by opening the mouth of the right side pocket with the help of his right hand fingers and directed him to put the bribe amount inside the pocket and the complainant did that accordingly. As soon as the transaction was over, the shadow witness gave a pre-appointed signal and on receiving it, the trap team rushed towards the accused and apprehended him at the stairs of the shop. When confronted, the accused admitted having demanded and accepted the bribe amount of ` 1,500/- from the complainant. Bajrang Bali recovered the tainted amount of ` 1,500/- from the right side pant pocket of the accused. Thereafter, hand wash, pocket wash, etc. were conducted and post-raid proceedings were completed. During investigation, statements of the witnesses conversant with the facts were recorded. After completion of investigation, a charge-sheet was filed against the accused; he was duly charged and brought to trial. The prosecution examined nine witnesses. In 313 statement, the accused pleaded false implication and examined eight defence witnesses. After hearing the rival contentions of the parties and on appreciation of the entire evidence, the Trial Court, by the impugned judgment, held the appellant perpetrator of the crime mentioned CRL.A. 464/2004 Page 4 of 22 previously. Being aggrieved and dissatisfied, the appellant has preferred the appeal.
3. I have heard the learned counsel for the parties and have examined the file. Appellant‟s counsel urged that the Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error in relying upon the testimonies of the interested witnesses without independent corroboration. PW-Bajrang Bali and PW- Devender did not support the prosecution on material aspects and resiled from their previous statements. The appellant had never demanded any bribe from the complainant or his sister any time and it was never accepted voluntarily by him. The investigation is highly faulty and tainted and no proper verification was made to ascertain the antecedents of the complainant and his sister who were involved in number of criminal cases. The recovery of the tainted money is suspect. No independent public witness was associated at any stage of the investigation. Learned Standing Counsel for CBI while supporting the judgment urged that the complainant had no ulterior motive to lodge complaint with CBI. There was a specific demand of ` 1,500/- which was paid and accepted by the appellant and he was caught red handed. Evidence and the test carried out go a long way to show that the tainted amount was recovered from the CRL.A. 464/2004 Page 5 of 22 possession of the appellant - accused. The recovery part has gone totally unchallenged. Presumption under Section 20 of the PC Act is attracted and the appellant has failed to dislodge it. Minor discrepancies in the statements of the witnesses do not affect the core of the prosecution case i.e. demand and acceptance of money. Reliance was placed on „Narendra Champaklal Trivedi vs. State of Gujarat‟, 2012 (7) SCC 80, „Rajesh Bhatnagar vs. State of Uttarakhand‟, 2012 (7) SCC 91, „Subbu Singh vs. State‟, 2009 (6) SCC 462, „Surendra Singh Beniwal vs. Hukam Singh and ors.‟, 2009 (6) SCC 469 & „Narayana vs. State of Karnataka‟, 2010 (14) SCC 453.
4. Admitted position is that on 13.07.1998, Hari Singh Yadav was posted as Sub Inspector in police station, Mehrauli. It is also not denied that he had instituted a kalandra under Sections 107/150 Cr.P.C. against the complainant‟s sister and her husband for which she had received a notice on 12.07.1998 for appearance before the concerned SDM on 14.07.1998. It is also not in dispute that SI Hari Singh Yadav was the Investigating Officer in case FIR No. 345/98 under Section 324/34 IPC registered on 22.06.1998 against Karamvir @ Kalu and others for causing injuries to Dinesh Sada. The prosecution has examined relevant witnesses to prove that on 13.07.1998, complaint (Ex.PW-2/A) CRL.A. 464/2004 Page 6 of 22 was lodged by PW-2 (Gurcharan Singh) against the appellant for demanding a bribe of ` 5,000/- which was reduced to ` 1,500/- from his sister Harbans Kaur. It is also not in dispute that after registration of the case, CBI constituted a trap team to apprehend the appellant red handed. The pre-trap proceedings (Ex.PW-2/C) have been proved beyond doubt by the complainant; panch and shadow witnesses.
5. PW-5 (Bajrang Bali) who joined the trap as panch witness deposed that at around 05.00 or 05.15 P.M., as instructed, complainant and Devender went to the police station Mehrauli to contact the accused. After about 10 / 15 minutes, they came out of the police station along with the accused and proceeded towards a canteen outside the police station. After 8 or 10 minutes, he was informed that the accused had already been trapped. He was not aware as to how and in what manner the accused was trapped. Since PW-5 (Bajrang Bali) did not support the prosecution, Spl. Public Prosecutor for CBI cross-examined him after seeking Court‟s permission. When confronted with the statement (Ex.PW-5/X), Bajrang Bali denied to have made any such statement to CBI. He denied that he had noticed the complainant and Hari Singh Yadav talking with each other while coming out from the police station Mehrauli. He further denied that the complainant - Gurcharan Singh after coming out of the CRL.A. 464/2004 Page 7 of 22 shop put tainted money in the right side pocket of the pant of the accused or that PW-Devender gave a pre-appointed signal by scratching his head with both hands. He admitted recovery of ` 1,500/- from the pant of the accused Hari Singh Yadav by him. In the cross-examination, he disclosed that he and Devender were dropped by Inspector, CBI at their residences. He was unable to read, write or understand English. He further admitted that public had protested for arresting the accused without any reason. Needless to say panch witness - PW-5 (Bajrang Bali) did not opt to support the prosecution and completely resiled from the statement (Ex.PW-5/X). No ulterior motive was assigned to him for deviating from the previous statement. The cross-examination of the witness did not yield any fruitful result.
6. PW-4 (Devender) associated as shadow witness participated in the pre-trap proceedings and deposed that after reaching at police station at about 05.10 P.M., as directed, he and the complainant went to the room of the accused. The complainant, after exchanging greetings had a conversation with him. He was unaware as to what was the said conversation. Thereafter, as suggested by the accused, they went out and had cold-drinks at a shop outside the police station. During conversation at the said shop, the accused told the complainant to come again and then CRL.A. 464/2004 Page 8 of 22 he would talk to him. Thereafter, complainant gave him empty bottles along with ` 100/- to pay to the shop owner. When he was making payment at the counter, the complainant and the accused came back towards him. He overheard the complainant telling the accused „paise rakh lo aap‟ and the accused replied „abhi nahi baad me aana tum‟. Thereafter, complainant told him „paise de ke aao hum bahar khare hain‟. When he came out after making the payment, complainant told him that he had given the money and suggested him to give the signal. On that, he gave the signal to the trap party. He did not see the complainant giving money to the accused. Since this witness gave statement in conflict with his previous statement, he was cross-examined by Spl. Public Prosecutor. He admitted that in the police station, he was introduced as the nephew of the complainant brought by him to see the police station. He further admitted that thereafter police station was shown to him by the accused. He was unable to admit or deny that while moving outside the police station, the accused said „Thana to dekh liya ab jo kaam maine kaha tha who bhi kiya ke nahin, paise laye ho?‟. He admitted that complainant said „ha sahab jitne aapne kaha tha utne hi laya hun ab meri bahan ka dhyan rakhna‟. He further admitted that accused said „arey ab to dosti ho gai hai pura dhyan rakhenge, chalo kuch thanda vagera pee kar aate hain tumhara CRL.A. 464/2004 Page 9 of 22 bhatija bhi aya hai ise kuch pila doon‟. Thereafter, complainant said „thik hai sahab mujhe kuch jaldi hai. He denied the suggestion that when they were moving out of the shop, Hari Singh Yadav directed the complainant „lao ab paise de do‟ and opened the mouth of right side pocket of his pant with his fingers and signaled him to put the money inside the pocket. In the cross-examination by the accused, he disclosed that he did not know English and was unable to understand the conversation in English. He was confronted with his statement (Ex.PW-4/X) where there was no mention of „paise rakh lo aap, abhi nahi baad mein aana tum‟.
7. The shadow witness gave inconsistent version and did not depose if demand of bribe at any stage was made by the accused in his presence from the complainant or that the complainant pursuant to the demand gave the money to the accused or it was accepted by him. He was categorical to say that no money was paid by the complainant in his presence and he did not give any pre-appointed signal to the raiding team. The cross-examination of the witness did not bring out anything material to connect the accused with the demand of money. No explanation was given by the prosecution regarding the improvements made by the witness for which he was confronted with his statement (Ex.PW-4/X). CRL.A. 464/2004 Page 10 of 22
8. PW-1 (Harbans Kaur) at whose instance her brother PW-2 (Gurcharan Singh) approached CBI to apprehend the accused red-handed herself did not go to the office of CBI to lodge complainant. On 20.06.1998, a quarrel had taken place between her tenant -Dinesh Sada and neighbour -Karamvir @ Kalu in which Dinesh Sada sustained injuries. PW-1 (Harbans Kaur) informed the police and control room about the occurrence and Dinesh Sada was taken for medical examination. PW-1 (Harbans Kaur), in her deposition, disclosed that no action was taken in that matter by the police officials of PS Mehrauli. On 22.06.1998, she called her brother - Gurcharan Singh and informed him about police officials of PS Mehrauli for not taking any action against Karamvir @ Kalu. Thereafter, she, her brother and Dinesh Sada went to the police station at around 08.00 P.M. On enquiry, they came to know that the case was assigned to SI Hari Singh Yadav. She informed that after great persuasion, Hari Singh Yadav agreed to register FIR No. 345/98 under Section 324/34 IPC at 08.40 P.M. There are no allegation of demand of illegal gratification by the accused from PW-1 (Harbans Kaur) or the injured for lodging FIR. PW-1 (Harbans Kaur) and her brother - Gurcharan Singh had no business to persuade SI Hari Singh Yadav to register the case for the said incident. Dinesh Sada, the victim who has not CRL.A. 464/2004 Page 11 of 22 been examined had no complaint whatsoever against the police officials. Anyhow, the complainant and his sister had no complaint against SI Hari Singh Yadav till 22.06.1998. In her deposition, PW-1 (Harbans Kaur) did not disclose as to when and where any bribe was demanded by the accused after 22.06.1998. She merely stated that from 23.06.1998 onwards, the accused started harassing and demanding ` 5,000/- and threatened to arrest her husband and son -Ravinder Singh in some false case or spoil their future if demand was not met. She further testified that Hari Singh Yadav kept on visiting her time and again for bribe on daily basis. She, however, did not divulge and explain as to what was the motive to demand bribe from her when he (SI Hari Singh Yadav) had already registered the case vide FIR No. 345/98 under Section 324/34 IPC. He had not registered any case against her or her family members on 23.06.1998 or soon thereafter. She admitted that she did not lodge any complaint to the SHO/ Addl. SHO or any other authority for such demand. In the cross-examination, she admitted that she had visited the police station on 23.06.1998 and subsequent to that also. However, no complaint in writing was ever lodged against the accused for harassment or demand of bribe. On 12.07.1998, Harbans Kaur received a notice from PS Mehrauli to appear before Sh.Praveen Dutt, Patiala House Courts, on CRL.A. 464/2004 Page 12 of 22 14.07.1998. She alleged that Hari Singh Yadav himself came at her residence to deliver the said notice. The prosecution, however, did not collect any evidence if notices (Ex.PW-7/DA & Ex.PW-7/DB) were delivered personally by SI Hari Singh Yadav to Harbans Kaur on 12.07.1998. Contrary to that, the accused examined DW-1 (Const. Shri Pal) who categorically on oath deposed that notices (Ex.PW-7/DA & Ex.PW-7/DB) were served by him as process server on 11.07.1998. He elaborated that at first instance Harbans Kaur had refused to accept the notices and threatened that she would teach a lesson to SI Hari Singh Yadav who had got issued the said notices. PW-6 (A.K.Singh), TLO, admittedly did not verify during investigation as to who had served the said notices under Sections 107/150 Cr.P.C. for appearance on 14.07.1998. He did not record the statement of the process server of the police station regarding service of the notices and did not obtain the copy of entry in relevant V-B register. PW- Harbans Kaur did not allege if at the time of delivery of the notices, any bribe was demanded from her on 12.07.1998. After receipt of process / notices, she called her brother Gurcharan Singh, at her residence, on 13.07.1998; both went to Police Station Mehrauli and met SI Hari Singh Yadav. Allegedly the appellant demanded ` 5,000/- from them which was subsequently reduced to ` CRL.A. 464/2004 Page 13 of 22 1,500/-. He told them that their failure to pay the bribe, had forced him to file a false kalandra against her and her husband. They were directed to bring the demanded amount by the evening. Again, no complaint was lodged to the concerned SHO for the said demand. It is not explained as to why PW-1 and her brother had gone to Hari Singh Yadav in the police station when he had already prepared the kalandra and PW-1 was directed to appear before the Court concerned on 14.07.1998. It is unclear as to how the appellant could have assisted the victim in the said kalandra which was already pending for 14.07.1998 before the concerned Court. Strange enough, on the same day, PW-2 (Gurcharan Singh) wrote a complaint (Ex.PW-2/A) and reached CBI office at around 12.00 Noon or 01.00 P.M. Without verifying the contents of the complaint, FIR (Ex.PW- 6/A) was registered on the directions of Sh. Anil Kumar, SP, Incharge of ACB then and there. PW-6 (A.K.Singh) without verifying the truth in the allegations immediately decided to lay a trap and arranged panch witnesses PW-4 (Devender) and PW-5 (Bajrang Bali) line-men from Delhi Vidyut Board.
9. As per PW-2, he and PW-4 (Devender) went to the office of the accused at around 05.15 P.M. After exchange of greetings, Hari Sigh Yadav enquired about the shadow witness "Yeh tere sath mein kaun hai? CRL.A. 464/2004 Page 14 of 22 Ise sath me lekar kyon aye ho". He replied "Bhatija hai isne kabhi thana nahin dekha is liye isko saath laya hun". On that accused replied "chalo main ise thana dikhata hun". He said "thik hai sahab mujhe jaldi hain thora jaldi kar dena". He further deposed that thereafter the accused took Devender to show the police station and he accompanied them. Thereafter, they all moved outside the police station. Thereafter, accused said "thana to dikha diya ab jo kaam kaha tha paise vagera laye ke nahin". To that, he replied "aapne jo kaha tha utne hi laya hun ab meri bahen ka dhyan rakhna". Thereafter, the accused replied "arey ab to dosti ho gai hai aapki bahen ka pura dhyan rakhenge chalo kuch thanda vagera pi kar atey hai. Tumhara bhatija bhi aya hai ise bhi kuch pila dun". He replied "thik hai sahab thora jaldi karna mujhe jaldi hai". Thereafter, the accused took them to Verma Bakeries and ordered three cold drinks, for which payment was made by the accused. When they came outside the shop, the accused said "La ab paise de do". Thereafter, the accused opened the mouth (opening) of right side pocket of his pant with his right hand fingers and signaled him to put the money into his pocket. On that, he put the money in the right side pocket of the pant of the accused. The shadow witness Devender gave signal to the raiding party. This version narrated by the complainant does not find support from PW-4 (Devender) and panch CRL.A. 464/2004 Page 15 of 22 witness PW-5 (Bajrang Bali). They have given divergent version of the incident which is not at all in consonance with the story put by the complainant. There is inconsistency as to at which place demand of bribe was made. Apparently, even as per the testimony of this witness, the appellant soon after exchange of greetings did not ask him to pay the bribe. Rather the appellant took the shadow witness Devender to the police station along with the complainant. Only when they were coming out of the police station, the appellant confirmed if the witness had brought the demanded money. Even at that time, no such money was demanded and paid to the appellant. Rather they went outside the police station and enjoyed cold drinks at Verma Bakeries. The payment of the cold drinks was made by the accused. When they came out of the shop, the complainant was allegedly asked to give the money. There was no sound reasons for the appellant to delay the receipt of bribe amount and instead of accepting it in secrecy in his room, to get it in the open place outside the shop of Verma Bakeries. The place and manner in which the bribe is said to have been offered and received makes the prosecution story wholly opposed to ordinary human conduct. There are conflicting statements as to who had made the payment for the cold drinks. PW-4 (Devender) disclosed that the said payment was made by the complainant CRL.A. 464/2004 Page 16 of 22 who handover ` 100 and the empty bottles of cold drinks to return and make the payment. In the cross-examination, PW-2 (Gurcharan Singh) also admitted that before 13.07.1998, he had not lodged any complaint against the accused for causing harassment to her sister and his family members and demanding bribe either to SHO or Addl. SHO of Police Station Mehrauli or any superior officer. PW-6 (Insp. A.K.Singh) did not corroborate complainant‟s version that he had travelled to the police station in his car and claimed in the cross-examination that they had left CBI office in official vehicle only.
10. PW-1 (Harbans Kaur) admitted in the cross-examination that she was aware of a police case registered against her brother Gurcharan Singh. She also admitted that one kalandra under Section 107/151 Cr.P.C. was pending trial against her and her son Ravinder Singh. She got a case under Section 506 IPC registered against her husband Mahinder Singh. She further admitted that she was involved in a criminal case under Sections 324/307 IPC. She expressed her ignorance if FIR No. 127/2000 under Section 324 IPC PS Mehrauli was registered against her and her son. She admitted that one kalandra under Section 107/150 Cr.P.C. of the year 1999 was pending against her and her son and the other party in the Court of Sh. Parveen Dut, Special Executive Magistrate. Admittedly, she CRL.A. 464/2004 Page 17 of 22 was called on several occasions during the period w.e.f. 13.07.1998 till date in the police station. She denied that during the said visits she was warned by the police to stop indulging in criminal activities or threatening people. She admitted that the kalandra instituted against her was decided about 11 months after the date of registration. She admitted that similar kalandra was registered against the other party namely Kalu and others and they were simultaneously proceeded in the Court of Special Executive Magistrate. PW-2 (Gurcharan Singh) also admitted pendency of a criminal case under Section 307 IPC PS Badarpur against him. He volunteered to add that it was converted under Section 308 IPC and was compromised. PW-6, the Investigating Officer did not investigate all these facts. He did not verify if the kalandra had been put in the Court of SDM on 26.06.1998 duly forwarded by the SHO. The appellant examined DW-4 (Insp.Jagdish Parsad), Addl. SHO PS Mehrauli in June / July 1996 and disclosed that there were number of complaints against Harbans Kaur and her family members from the residents of Pahari Chhatter Pur. DW-5 (ASI Surender Kumar) also deposed on similar lines. Apparently, PW-1 and PW-2 were frequent visitors to the police station and the police officials were aware of their antecedents and their involvement in some cases. Kalandra under Section 107/150 Cr.P.C. of the year 1999 was also CRL.A. 464/2004 Page 18 of 22 issued by some other police officials against her and her son. No complaint whatsoever regarding demand of bribe was ever lodged by them before any concerned authority prior to 13.07.1998. The appellant had no motive or reason to demand bribe from the complainant or his sister on 13.07.1998 as he had already implicated Harbans Kaur and her son in a kalandra under Section 107/150 Cr.P.C. which was pending before the concerned SDM for 14.07.1998. The said kalandra had already been issued by the appellant after being forwarded by the SHO concerned in the Court on 26.06.1998. The notice issued by the concerned SDM had already been delivered for appearance on 12.07.1998. In this scenario, he could not have assisted or helped Harbans Kaur in the said kalandra in any manner. There was, thus no occasion for the complainant and his sister to pay a bribe of ` 5,000/- to the appellant. It appears that institution of proceedings in kalandra prompted the complainant to approach CBI after due deliberations to lay a trap to implicate the appellant with whom they had prior acquaintance. The complainant has got an animus against the appellant and had motive to lodge the report. The appellant was caught by CBI on 13.07.1998 and the recovery of the tainted money was effected from his pocket. The circumstances and facts reveal that complainant had prior acquaintance and familiarity with the appellant and used to meet him CRL.A. 464/2004 Page 19 of 22 in connection with cases registered for or against her sister. Admittedly, he had gone to the police station to get a case registered on 20.06.1998, when a quarrel took place between Dinesh Sada and Karamvir @ Kalu. The appellant without asking any favour or consideration registered the case against Karamvir @ Kalu. Undoubtedly, on 13.07.1998, the complainant along with PW-4 (Devender) visited the police station. The shadow witness PW- Devender has also corroborated the complainant‟s version to the extent that the appellant not only showed him the police station in the company of Gurcharan Singh but also entertained them at Verma Bakeries where they consumed cold drinks. He was aware about the institution of kalandra under Section 107/150 Cr.P.C. against the complainant‟s sister. He had no valid and sound explanation to have close association / nexus with the complainant whose sister was facing proceedings under Section 107/150 Cr.P.C. and to entertain him and his associate / companion even to the extent of showing the police station during office hours and serving them cold drinks. The undesirable conduct was opposed to the duties entrusted to him and was unbecoming of a police officer on duty.
11. The prosecution was, however, unable to establish beyond reasonable doubt that the appellant made a demand of bribe on any CRL.A. 464/2004 Page 20 of 22 particular date as a motive or reward for doing or forbearing to do any official act in the exercise of his official functions.
12. The Court has no reason to disbelieve recovery of the tainted money from the pocket of the appellant in view of the consistent version of the panch witness and TLO including that of PW-4 (Devender), shadow witness in this regard. The bribe amount was not accepted by the appellant with his right or left hand. It was even not counted by him. The TLO did not explain as to why the hand washes of the fingers of right and left hands were taken in post-raid proceedings when the appellant had not taken the money himself. The appellant having familiarity / intimacy with the complainant by this time had no reason to suspect foul play and to ask the complainant to put the money in his pocket by opening its mouth with his right fingers at a public place. It lends credence to the appellant‟s version that the tainted money was thrusted by the complainant in his pocket to implicate him. This possibility cannot be ruled out as the complainant was nurturing grudge against him for instituting proceedings under Sections 107/150 Cr.P.C. against his sister Harbans Kaur. In the absence of any definite evidence of demand of bribe, acceptance of tainted money by the appellant, under unusual circumstance is a mere suspicion which cannot be a substitute for proof. Settled legal preposition is that CRL.A. 464/2004 Page 21 of 22 mere receiving of money divorced from the circumstances under which it was paid is not sufficient to base conviction. The prosecution is required to prove that the money was accepted on demand. The demand and acceptance of the amount as illegal gratification is sine qua non for constitution of the offence under the Act.
13. In view of the above discussion, the appellant deserves benefit of doubt. The appeal is accepted. Conviction and sentence are set aside. Bail bonds and surety bonds stand discharged. Trial Court record be sent back forthwith.
(S.P.GARG) JUDGE FEBRUARY 18, 2014/tr CRL.A. 464/2004 Page 22 of 22