Delhi District Court
State vs Ct. Dinesh Kumar on 29 April, 2025
IN THE COURT OF DEEPALI SHARMA
SPECIAL JUDGE: PC ACT: ACB-01:
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT11-000126-2022
CC No. 15/2022
FIR No. 06/2016
U/S: 7/13 of Prevention of Corruption Act r/w Section 120B IPC
PS: Vigilance
State
Versus
1) Dinesh Kumar,
s/o Tara Chand,
r/o Village Rupakavas, PO Chinchroli,
Tehsil Khekhri, Distt. Jhunjhunu,
Rajasthan.
2) Shivraj,
s/o Mandu Lal,
r/o Gali No. 4, D Block,
Phool Bagh, Burari, Delhi.
Permanent R/o :
Village Bada,
Post Office Rajpur
District Karauli
PS Nadauty, Rajasthan.
Date of Institution : 05.03.2022
Date of Arguments : 19.04.2025
Date of Judgment : 29.04.2025
Appearance :
For the State : Sh. Sukhbeer Singh,
Ld. Chief Public Prosecutor
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 1 of 125
For accused : Sh. Sanjay Gupta and Sh. Raj
Kamal Arya, adv., Ld. Counsel
for accused Dinesh Kumar.
Sh. Ajit Kumar Gola, Ld.
Counsel for accused Shivraj.
JUDGMENT
1. Briefly stated the facts of the case are that on 26.09.2016, complainant Manoj Kumar came to PS Vigilance and met the Duty Officer who sent him to Insp. Dharamvir Gautam who was assigned the duty of Raid Officer on that day. The complainant wrote down his complaint stating that he used to do the work of transport and he had RTV vehicles which plied between Madanpur Khadar to Nehru Place. The traffic police officials in front of Apollo Hospital on the above said route used to demand monthly payment to run the vehicles on this route. They demanded Rs.500/- for every vehicle. The previous week his driver Deepak of the RTV vehicle no. DL-1VC-0247 made him speak to a traffic police official telephonically who told the complainant that he was a traffic police official and his duty was at Apollo Hospital red light and further that he had to give monthly payment to run his vehicle. Under his pressure the complainant agreed to give Rs.1500/-, however he also reported the matter telephonically on 1064. The complainant was called to the Vigilance office next day, however he was unable to pursue the matter on that day. Thus in the morning on 26.09.2016 he spoke on mobile no. 9136267214 with traffic police officials who told their names as Dinesh Kumar and Shivraj Singh and CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 2 of 125 demanded Rs.1500/- to run his vehicles and asked him to come and give the money to them. Since the complainant did not wish to give the bribe money therefore, he gave a complaint at Vigilance office to take action against Ct. Dinesh Kumar and Shivraj Singh. The complaint was also attested by RO and panch witness Anish Ahmad who was also present at that time and he verified the facts from the complainant.
2. The complainant also produced Rs.1500/- towards bribe money before the RO containing one GC note of Rs.1000/- and another GC note of the denomination of Rs.500/-. Their serial numbers were noted in the pre-raid report prepared by RO Insp. Dharamvir Gautam who applied phenolphthalein powder on the aforesaid GC notes and he also gave demonstration of the speciality of the phenolphthalein powder to the complainant and panch witness. After demonstration, RO handed over powder smeared GC notes to the complainant and he put the same in the left side pocket of his wearing shirt. The panch witness was directed to remain with the complainant and to hear and watch the transaction between the complainant and the bribe seeker. RO also directed the panch witness to give signal by raising his right hand after the bribe amount had been accepted from the complainant on demand. The complainant was directed to hand over the bribe amount only upon demand. The RO, panch witness and complainant cleaned their hands with soap and water. The pink solution was also thrown away and the plastic mug was cleaned with the help of soap and water.
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 3 of 1253. A raiding team was constituted comprising HC Narender, HC Sunil, Ct. Mahavir and Ct. Rajender which alongwith the complainant, panch witness and the RO left PS Vigilance in two official vehicles driven by ASI Amardeep and ASI Saahi Ram for Apollo Hospital Red Light, Mathura Road. When they reached near Ashram Chowk, the complainant Manoj Kumar received call on his mobile phone bearing no. 9311818181 from Ct. Dinesh Kumar from mobile no. 9013142142 and he told the complainant that Ct. Shivraj was away and to meet him at Apollo Hospital. Thereafter, Manoj Kumar spoke to Ct. Shivraj who told him that he was at Airport and that money will be received by Ct. Dinesh Kumar.
4. At about 02:00 pm, raiding team reached in front of Apollo Hospital at the gate of DCP, South-East office and the complainant, panch witness went to Ct. Dinesh and after having some conversation with Ct. Dinesh Kumar, the complainant took out the GC notes from his pocket and handed them over to Ct. Dinesh Kumar who kept them in the right side pocket of his wearing pant. The raid was conducted and Ct. Dinesh Kumar was apprehended at the instance of the panch witness Anish Ahmad who told that Ct. Dinesh Kumar had accepted the bribe amount of Rs.1500/- on demand from the complainant. The panch witness further stated that the accused accepted the same with his right hand and put them in the right pocket of his wearing pant. The bribe money was recovered by the panch witness from the right side pocket of wearing pant of the accused. The serial numbers of the recovered GC notes were compared with the pre-
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 4 of 125raid report and found to be correct. The recovered GC notes were also seized by the RO vide seizure memo Ex.PW5/C. The right hand wash of accused Ct. Dinesh Kumar was taken in colourless sodium carbonate solution which turned pink. The pink solution was kept in sealed glass bottles which were seized by the RO. Right side pocket wash of wearing pant of accused Ct. Dinesh Kumar was also taken in colourless sodium carbonate solution which turned pink. The pink solution was kept in sealed glass bottles which were seized by the RO. The pant was also converted into cloth pulanda and sealed. The sealed exhibits were taken into possession by the RO vide seizure memos Ex.PW5/D and Ex.PW5/E. RO prepared sample seal and seal after use was handed over to the panch witness. The RO prepared the raid report Ex.PW19/A and prepared a rukka Ex.PW19/B on the raid report. The rukka was handed over to Ct. Mahavir for registration of the FIR. Meanwhile, Insp. Kailash Chandra reached the spot and the RO apprised him about the case and handed over the seizure memos, sample seal, copy of rukka, sealed exhibits and accused Ct. Dinesh Kumar to him. IO was apprised about the raid by the RO. Thereafter, RO Insp. Dharamvir Gautam left the spot.
5. Necessary investigation was conducted by IO Insp. Kailash Chandra. He prepared the site plan Ex.PW5/L at the instance of complainant. Upon return to PS Vigilance, he interrogated the accused. Copy of FIR was handed over to him. The accused was arrested vide arrest memo Ex.PW5/G. His personal search was conducted vide personal search memo CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 5 of 125 Ex.PW5/H. Case property was deposited in the Malkhana. IO recorded the statements of the panch witness and the complainant.
6. The next day the IO requested the service providers to furnish the call details of Ct. Dinesh Kumar, Ct. Shivraj, complainant Manoj Kumar, driver Deepak and one Amit by whose mobile information was given on the Vigilance helpline by complainant Manoj. The exhibits of the case were sent to FSL, Rohini. IO also seized the documents pertaining to the RTV in issue bearing DL-1VC-0247 which was driven by Deepak, vide seizure memo Ex.PW5/J. IO obtained the documents pertaining to the duty of Ct. Dinesh Kumar at Apollo Red Light point on 26.09.2016 and he came to know that on that day, accused Shivraj was on casual leave and he seized the said documents, vide seizure memo Ex.PW9/B. IO recorded the statements of witnesses. The FSL result was obtained. CDRs and CAFs of the mobile numbers were obtained and placed on record. The location chart and posting record in respect of Ct. Shivraj were also obtained. The duty roster between 03.09.2016 to 26.09.2016 of Ct. Dinesh and Ct. Shivraj were also seized. The details of challans of the four RTVs in question were collected. The statement of complainant Manoj Kumar was got recorded U/s 164 Cr.P.C. Other documents relevant to the case were also collected. Statements of witnesses were recorded U/s 161 Cr.P.C. Prosecution sanction was obtained against both the accused persons. As both the accused persons were found to be acting in conspiracy with each other for demand and acceptance CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 6 of 125 of bribe, section 120B IPC was added. Accused Shivraj was interrogated. After completion of necessary investigation, charge-sheet was filed against accused Ct. Shivraj and Ct. Dinesh Kumar under Section 7/13 (1)(d) P.C. Act read with section 120B IPC.
7. After completion of investigation, charge-sheet was filed against accused Dinesh Kumar and Shivraj u/s 7/13(1)(d) PC Act, 1988 and Section 120B IPC on 05.03.2022 and cognizance of offence was taken against both the accused persons on 02.04.2022. Thereafter, both the accused persons were summoned and after hearing arguments, charge for the offence under Section 120B IPC, Section 7 of PC Act r/w Section 120B IPC and Section 13 (1) (d) of PC Act punishable u/s 13 (2) of PC Act r/w Section 120B IPC was framed against both the accused persons, to which they pleaded not guilty and claimed trial.
8. In order to prove its case, prosecution has examined 21 witnesses. Brief summary of deposition of prosecution witnesses is as under:-
i) PW1 Retired SI Ten Singh was the Duty Officer, who proved copy of FIR no. 06/2016, PS Vigilance, Ex. PW1/A;
his endorsement on the rukka Ex. PW1/B; DD no. 6A dated 26.09.2016 Ex.PW1/C; DD No. 7A dated 26.09.2016 Ex.PW1/D; DD no. 23B Ex.PW1/E, which was made by Insp. Dharamvir Gautam and DD no. 25B Ex.PW1/ F, which was made by DO CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 7 of 125 pertaining to the present case.
ii) PW2 Ct Mahendra Kumar - CCTNS Operator on 26.09.2016 at P.S. Vigilance, who fed the contents of the rukka in the computer system on the basis of rukka handed over to him by ASI Ten Singh, Duty Officer and present case FIR was registered and took out the printout of the FIR and gave certificate U/s 65B Indian Evidence Act Ex. PW2/A qua the present case FIR.
iii) PW-3 Insp. Sagar Singh, MSI(M) at PS Vigilance, Barakhamba Road, on 26.09.2016. He stated that Insp. Kailash Chand deposited sealed exhibits in the present case alongwith the copy of seizure memo in the Malkhana vide entry at serial no. 77 in Register no. 19 Ex.PW3/A. PW3 also deposed that on 05.10.2016, on the instructions of the IO Insp. Kailash Chand, vide entry Ex. PW3/A-1 in register no. 19, he handed over sealed exhibits i.e. four sealed glass bottles with the seal of RRK alongwith sample seal and forwarding letter to Ct. Sikander Mann to get the same deposited at FSL, Rohini vide RC no. 26/21/16 Ex.PW3/B. Ct. Sikander Mann collected the sealed exhibits and got deposited the same at FSL, Rohini and came back and handed over the acknowledgment of case acceptance Ex. PW3/C alongwith the copy of RC to him. PW3 further deposed that ASI Kailash received sealed exhibits alongwith the FSL result from FSL and PW3 made entry to the said effect in the Register no. 19 which is at point A of the Ex.PW3/A. The FSL result was handed over to IO Insp. Kailash Chander Kukreti.
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 8 of 125iii.a) PW3 further deposed that on 09.08.2016, the personal search items of accused Dinesh Kumar were handed over to the accused by the order of the court vide entry in Register no. 19 Ex.PW3/D.
iv) PW-4 Pawan Singh, Nodal Officer, Vodafone Idea Ltd., deposed that during investigation, he provided the certified copies of call details of mobile no. 9911805668 and 9911292178 for the period 15.09.2016 to 26.09.2016 Ex.PW4/A (colly). The mobile no. 9811805668 was in the name of Ramjani Khan and the corresponding documents given at the time of obtaining the aforesaid numbers was the Voter I-Card. The certified copy of CAF in the name of Ramjani Khan alongwith certified copy of Voter I-Card was Ex.PW4/B (colly). The mobile no. 9911292178 was in the name of Amit Kumar Gupta and the corresponding documents given at the time of obtaining the aforesaid number was the Voter I-Card. The certified copy of CAF in the name of Amit Kumar Gupta alongwith certified copy of Voter I-Card was Ex.PW4/C (colly). PW4 deposed that he also provided certificate U/s 65B of Indian Evidence Act Ex.PW4/D regarding the CDRs of both the aforesaid numbers.
iv.a) PW Pawan Singh, Nodal Officer, Vodafone Idea Ltd., was also examined as PW-4A. He deposed that in the year 2017, Saurabh Aggarwal was working with Vodafone Mobile Services Ltd. as Nodal Officer. in September 2018 Vodafone Mobile Services Ltd. merged with Idea Cellular Ltd. He was working with Idea Cellular Ltd. in the year 2018 and after the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 9 of 125 merger, he had the opportunity to work with Saurabh Aggarwal, who was also Nodal Officer at that relevant time, and he had seen him signing and writing in my official capacity. The reply dated 08.09.2017 Ex.PW4A/C regarding certified copy of CAF and CDR of mobile no. 9311818181 Ex.PW4A/A and certificate U/s 65B of Indian Evidence Act Ex.PW4A/B were prepared by Saurabh Aggarwal and bears his signature. Saurabh Aggarwal had left the company and his present whereabouts were not known to the company.
iv.b) PW Pawan Singh, Nodal Officer, Vodafone Idea Ltd., was also examined as PW-4B. He deposed that he was working with Idea Cellular Ltd. since 2005. As per CAF the mobile no. 9013142142 was subscribed to one Dinesh Kumar S/o Sh. Tara Chand. The certified copy of CAF, certified copy of Aadhar Card and identity card of Dinesh Kumar were collectively Ex.PW4B/A. The certified copy of CDR of the mobile no. 9013142142 running into four pages was collectively Ex.PW4B/B and the certificate U/s 65B of Indian Evidence Act dated 20.09.2017 was Ex.PW4B/C.
v) PW5 Manoj Kumar - complainant.
vi) PW6 Aneesh Ahmad - panch witness. vii) PW7 ASI Satish deposed that on 12.06.2018, he was posted as MHC. He produced the original duty roster
register and Rojnamcha from 21.08.2016 to 21.09.2016 and from 21.09.2016 to 24.10.2016 as well as attested copies of duty roster CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 10 of 125 of the staff of Sukhdev Vihar Circle (SDV/C) from 03.09.2016 to 26.09.2016 running into 24 pages Ex.PW7/A-1 to Ex.PW7/A-24 respectively, which were seized by Insp. Kailash Chander vide memo Ex.PW7/B. vii.a) He further deposed that as per duty roster Ex.PW7/A-1 to Ex.PW7/A-24, from 03.09.2016 to 26.09.2016 Ct. Dinesh and Ct. Shivraj were deployed at Apollo Red Light, South East District and during the deployment period, both of them performed duty at Apollo Red Light on 05.09.2016, 20.09.2016, from 22.09.2016 to 24.09.2016. PW7 further deposed that on 25.09.2016, Ct. Shivraj remained at the duty post and as per record on 26.09.2016, Ct. Shivraj remained on one day casual leave.
vii.b) In his cross-examination by accused, he affirmed that as per Duty Roster Ex. PW7/A18 dated 20.09.2016 ASI Ramhet, Ct. Dinesh, Ct. Shivraj and Ct. Lekhraj were on duty at Apollo Hospital Red Light. He also affirmed that as per Duty Roster dated 20.09.2016, Ct. Dinesh was absent and entry in that regard was at Point-A on Ex. PW7/A18. He also affirmed that as per the Duty Roster dated 26.09.2016 Ex. PW7/A24, ASI Ramhet, Ct. Dinesh, Ct. Shivraj ad Ct. Lekhraj were on duty at Apollo Hospital Red Light. He further affirmed that on 26.09.2016 accused Ct. Shivraj was on Casual Leave as indicated at Point-B of Ex. PW7/A24.
viii) PW8 HC Sikender Maan, who deposited the sealed exhibits alongwith sample seal at FSL, Delhi alongwith CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 11 of 125 forwarding letter, vide RC no. 26/21/16 dated 05.10.2016 and after depositing the sealed exhibits at FSL, he handed over the acknowledgment to MHC(M), PS Vigilance.
ix) PW9 SI K. Narasimaha deposed that on 04.11.2016 he was MH(C) at Sukhdev Vihar Traffic Circle and he handed over the certified copy of duty roster of Sukhdev Vihar Circle (South-East) dated 26.09.2016, copy of DD no. 7 dated 26.09.2016 regarding the deployment of accused Ct. Dinesh at Apollo Hospital Red Light on 26.09.2016 according to which Ct. Dinesh, ASI Ramhet were on duty at Apollo Red Light and Ct. Shivraj was on one day CL on 26.09.2016 and he also handed over the photocopy of casual leave application of accused Ct. Shivraj and photocopy of casual leave register to the IO Ex.PW9/A-1 to Ex.PW9/A-6 respectively and same were seized by the IO vide memo Ex.PW9/B. ix.a) In his cross-examination by the accused, he affirmed that as per DD No. 7 Ex. PW9/A1, ASI Ramhet and Ct. Dinesh made departure entry for duty at Apollo Hospital Red Light. He also affirmed that as per Duty Register, Ct. Shivraj was on duty rest on 25.09.2016.
x) PW10 HC Manoj Kumar deposed that on 06.10.2016, he joined the investigation in this case and complainant Manoj Kumar came to PS Vigilance and handed over the photocopies of registration certificate of RTV bus no. DL-1VC-0315, DL-1VC-0666, DL-1VA-9562 alongwith the copy of Stage Carriage Permit of these vehicles regarding their CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 12 of 125 route from Madanpur Khadar to Govindpuri via Kalindi Kunj, Modi Flyover, Nehru Place, Okhla Tank and Sarita Vihar and complainant also handed over the copy of RC of vehicle no. DL- 1VC-0247 Ex.PW5/K (colly) and same were seized vide memo Ex.PW5/J. x.a) PW10 further deposed that on 04.11.2016, HC K.Narsimha, MH(C) Sukhdev Vihar Circle, handed over the certified copy of computerized duty register of Ct. Dinesh regarding his deployment at Apollo Red Light point of Sukhdev Vihar Circle dated 26.09.2016, copy of DD no. 7 dated 26.09.2016, copy of application for casual leave of Ct. Shivraj and copy of casual leave register Ex.PW9/A-1 to Ex.PW9/A-6, which were seized vide seizure memo Ex.PW9/B. x.b) PW10 further deposed that on 07.11.2016, Ct. Prakash of SIP Branch, who was working as Dealing Assistant, Traffic Unit, Todapur, handed over the computerized certified copy of posting record of Ct. Dinesh and relevant page of posting register, which was seized vide memo Ex.P1 (colly). x.c) PW10 further deposed that on 07.04.2018, complainant Manoj Kumar came at PS and he handed over the copy of Stage Carriage Permit of RTV vehicle no. DL-1VC- 0247, which was seized vide memo Ex.PW5/P (colly). He also deposed that on 12.06.2018, HC Satish Kumar produced the original duty roster register for the year 2016 and handed over the duty roster of Sukhdev Vihar Circle from 03.09.2016 to 26.09.2016 alongwith self attested copy of duty roster register regarding Ct. Dinesh and Ct. Shivraj at Apollo Red Light, Mathura Road of September 2016 regarding their deployment, CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 13 of 125 Ex.PW7/A-1 to Ex.PW7/A-24, which were seized by the IO vide memo Ex.PW7/B. x.d) PW10 was not cross-examined by ld. Counsel for the accused persons despite opportunity given.
xi) PW11 M.L.Meena, Sr. Scientific Officer (Chemistry), FSL, Rohini, Delhi, deposed that on 05.10.2016, exhibits i.e. four sealed glass bottles containing pink colour solution sealed with the seal of RRK were received in the FSL and he received the same for examination.
xi.a) The sealed glass bottles were marked as exhibits RHW-I, RHW-II, PRPW-I and PRPW-II, which were containing pink coloured solution. Exhibit RHW-I, stated to be wash of the right hand of the accused Ct. Dinesh Kumar and RHW-II stated to be wash of the right hand of accused Ct. Dinesh Kumar. Exhibit PRPW-I stated to be wash of right pocket of pant of accused Ct. Dinesh Kumar and exhibit PRPW-II stated to be wash of right pocket of pant of accused Ct. Dinesh Kumar. On chemical and TLC examination, exhibits were found to contain sodium carbonate and phenolphthalein and in this regard he prepared his report Ex.PW11/A. PW11d correctly identified the case property i.e. four sealed bottles having the seal of MLM FSL DELHI as well as his signatures, as Ex.P3, Ex.P4, Ex.P5 and Ex.P6.
xi.b) PW11 was cross-examined by ld. Counsel for accused persons on the various aspects relating to the report prepared by him.
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 14 of 125xii) PW12 Mukesh Kumar, Data Entry Operator, Transport Department, RTA Rajpura Road, Civil Lines, Delhi, produced the registration record of vehicle no. DL-1VC-0666, DL-1VC-0315, DL-1VA-9562 and DL-1VC-0247. The certified copies of the vehicle particulars and registration record were exhibited as Ex.PW12/A (colly two sheets), Ex.PW12/B (colly two sheets), Ex.PW12/C (colly two sheets) and Ex.PW12/D (colly three sheets) respectively.
xii.a) PW12 was not cross-examined by ld. Counsel for the accused persons despite opportunity given.
xiii) PW13 Amit Dabas, Sr. Assistant, STA Branch, Transport Department, 5/9, Underhill Road, Delhi, produced the Permit Record of vehicle no. DL-1VC-0315 and DL-1VC-0666. The certified copy of the vehicle particulars and Permit record were exhibited as Ex.PW13/A. xiii.a) PW13 was not cross-examined by ld. Counsel for the accused persons despite opportunity given.
xiv) PW14 Amit Sharma, Nodal Officer, Reliance Communications Ltd., proved the CAF of mobile no. 9136267214 and its CDR w.e.f. 15.09.2016 to 26.09.2016 as Ex. PW14/A (colly), which was issued by MTS company which was taken over by Reliance Communications in September 2017. He deposed that the aforesaid mobile number was issued in the name of Shivraj S/o Sh. Mandu Ram. He also proved the signatures of Sh. Pankaj Sharma, the then Nodal Officer, and the stamp of Shyam Siestema Ltd. (MTS) on Ex. PW14/A (colly). He also CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 15 of 125 proved the Cell location chart Ex. PW14/B and Certificate U/s 65B of I.E. Act in support of CDRs, Cell Location Chart and CAF as Ex.PW14/C. xiv.a) PW14 was not cross-examined by ld. Counsel for the accused persons despite opportunity given.
xv) PW15 Deepak - driver of complainant on RTV vehicle no. DL-1VC-0247.
xvi) PW16 ASI Satish Kumar deposed that on 02.07.2021, he was posted in the SIP Branch, Todapur Unit, Delhi and handed over the certified copy of posting record of Ct. Shivraj Prajapat, No. 3560/T, PIS No. 28109479 Ex.PW16/B, which was seized vide memo Ex.PW16/A. xvi.a) He was not cross-examined by ld. Counsel for accused persons despite opportunity given.
xvii) PW17 SI Ravinder Singh proved the handwriting and signatures of Insp. Kuldeep Singh Dhull on the letter in reply to notice of IO i.e. Ex.PW17/A. PW17 also produced the copy of office copy of the letter Ex.PW17/A alongwith details of e- challan of vehicles no. DL-1VC-0315, DL-1VC-0666, DL-1VA- 9562 and DL-1VC-0247 Mark-PW17/B (colly).
xvii.a) He was not cross-examined by ld. Counsel for accused persons despite opportunity given.
xviii) PW18 S.D. Mishra, Joint Commissioner, Crime, Delhi, deposed that in the year 2021, I was posted as Additional CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 16 of 125 Commissioner, Traffic with additional charge of DCP, Traffic Headquarters. A letter no.116 and 117/ACP/DIU/Vig.branch dated 02.09.2021 was received with a request to grant prosecution sanction U/s 19 of PC Act against Ct. Shivraj, No. 3560/T, PIS NO. 28109479 and Ct. Dinesh Kumar, No. 3125/T, PIS No. 28100533 alongwith draft chargesheet, statements of witnesses, FSL result, seizure memos, CDRs and other documents. He went through the documents and after applying his mind, he being the competent authority to accord sanction against accused Ct. Shivraj and Ct. Dinesh Kumar, accorded sanction U/s 19 of PC Act Ex. PW18/A against accused Ct. Dinesh Kumar and Ex. PW18/B against accused Ct. Shivraj, for their prosecution for the offences U/s 7/13(1)(d) of PC Act and r/w Section 120B IPC. The aforesaid sanction orders were sent to the DCP, Vigilance vide letter dated 24.09.2021 Ex.PW18/C. xviii.a) PW18 was cross-examined by the ld. Counsel for the accused persons.
xix) PW19 Insp. Dharamvir Gautam - Raid Officer. He deposed that on 26.09.2016 complainant Manoj Kumar came to PS Vigilance and he was sent to his room as he was assigned duty of Raid Officer on that day. Complainant told him that his RTV vehicle used to ply on the route of Madanpur Khadar to Nehru Place and on the traffic point of Sarita Vihar Red Light, Opposite Apollo Hospital, two traffic police Constables, who were performing their duty at that time, and revealed that Ct. Dinesh Kumar and Ct. Shivraj Singh made demand of Rs. 500/- per month per vehicle for plying his RTV vehicles. PW19 asked CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 17 of 125 complainant to give his complaint in writing. Panch witness Aneesh Ahmad was also present in PS Vigilance for his duty. Complainant wrote his complaint in his own handwriting in the presence of panch witness Aneesh Ahmad, who also verified the facts from complainant. Complainant also told that on 26.09.2016 he had telephonic conversation with Ct. Dinesh Kumar and Ct. Shivraj Singh and that they demanded bribe of Rs. 1500/- for allowing his three RTVs to ply on the said route. Panch witness Aneesh Ahmad also put his signature on complaint Ex. PW5/B. PW19 apprised all the facts to ACP, VIU Sh. L.C.Yadav, who after discussing the matter with senior officers, directed him to proceed with the complaint. PW19 further deposed that complainant Manoj Kumar had also brought Rs. 1500/- i.e. one GC note of Rs. 1000/- and one GC note of Rs. 500/- denomination with him. He noted the serial number of the GC notes brought by the complainant in pre-raid report Ex. PW5/F. He applied Phenolphthalein power on both the GC notes and asked the panch witness Aneesh Ahmad to touch the powder smeared GC notes with his right hand and thereafter, his right hand was dipped in colourless Sodium Carbonate solution which turned into pink. He explained the specialty of the Phenolphthalein powder to the complainant as well as panch witness. The pink coloured solution was thrown and they cleaned their hands with soap and water. After using the bottle of remaining Phenolphthalein powder, the same was handed over to the Reader of VIU Office. He handed over the powder smeared GC notes to the complainant, who put the same in his left side pocket of his wearing shirt. PW19 directed the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 18 of 125 complainant to keep panch witness Aneesh Ahmad with him during the proceedings so that he could see and hear the conversation between the accused and the complainant. PW19 also instructed the complainant to give the bribe only on demand. He also explained the panch witness to remain with the complainant and to hear and see the transaction of bribe and only if he is satisfied that the bribe amount was accepted on demand then to give the signal by raising his right hand. xix.a) PW19 further deposed that at about 01:10 pm, he alongwith complainant, panch witness, HC Narender, HC Sunil, Ct. Mahavir and Ct. Rajinder left the office of Vigilance in two official vehicles bearing nos. DL-1CJ-5549 and DL-1CJ-4543, which were driven by ASI Amardeep and ASI Saahi Ram, after making entry vide DD No. 23B Ex. PW1/E, for Sarita Vihar. PW19 further deposed that when they reached ahead of Ashram Chowk, Ct. Dinesh made a call on the mobile phone of complainant bearing no. 9311818181 and he told that on that day Ct. Shivraj was not available and asked him to meet him in front of DCP Office, Sarita Vihar. PW19 and panch witness both were sitting in the same vehicle with the complainant. Thereupon complainant Manoj Kumar made a call from his mobile phone to Ct. Shivraj Singh in their presence and Ct. Shivraj told him that he was at airport and asked him to meet with Ct. Dinesh and to hand over the bribe amount to him. Thereafter, they reached at Sarita Vihar red light and stopped their vehicles ahead of DCP Office. Complainant and panch witness both de-boarded from the vehicle and the other members of raiding team took their position in nearby area so that they could see them. One police CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 19 of 125 official in traffic uniform was standing outside the gate of DCP Office and thereupon complainant and panch witness both proceeded towards him. The complainant had some conversation with accused Ct. Dinesh Kumar and thereupon he took out GC notes from his pocket and handed over the same to accused Ct. Dinesh Kumar and he after holding the GC notes with his right hand put the same in the right pocket of his wearing pant. They were standing at a point from where they could see all the proceedings from a distance. Thereafter, panch witness gave pre- determined signal by raising his right hand. The raiding team rushed to the place and surrounded accused Ct. Dinesh Kumar and panch witness told that Ct. Dinesh Kumar accepted the bribe amount of Rs. 1500/- after making the demand and after accepting the same with his right hand, put the same in the right pocket of his wearing pant. PW19 gave his introduction as well as of raiding team to accused Ct. Dinesh Kumar and told him that he had accepted bribe of Rs. 1500/- for allowing the complainant to ply his three RTVs on the route of Madanpur Khadar to Nehru Place for their point. Thereafter, PW19 offered his search as well as of other members of raiding team before they took his search but accused became perplexed and sought apology. PW19 asked panch witness Aneesh Ahmad to take search of accused Dinesh Kumar and accordingly panch witness took search of Ct. Dinesh Kumar and recovered bribe amount of Rs. 1500/- i.e. one GC note of Rs. 1000/- and another of Rs. 500/- denomination from the right side pocket of wearing pant of accused. PW19 tallied the serial number of recovered GC notes with the pre-raid report and found the same as correct. The recovered GC notes were put CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 20 of 125 in an envelop and sealed with seal of RRK and seized vide seizure memo Ex. PW5/C. PW19 took right hand wash of accused Ct. Dinesh Kumar in colourless Sodium Carbonate solution in the presence of complainant and panch witness, which turned into pink and said solution was transferred in two clean glass bottles which were marked as RHW-1 and RHW-II. Both the glass bottles were closed with the plastic cork and sealed with the seal of RRK. PW19 arranged one pant for the accused from police booth of accused Ct. Dinesh Kumar, which was near the spot, and accused was asked to change the pant and thereafter the right side pocket wash of wearing pant of accused Ct. Dinesh Kumar was taken into colourless Sodium Carbonate solution which turned into pink and said solution was transferred in two clean glass bottles which were marked as PRPW-1 and PRPW-II. Both the glass bottles were closed with the plastic cork and sealed with the seal of RRK. PW19 got dried the right side pocket of wearing pant of accused Ct. Dinesh and complainant, panch witness and accused signed on the pocket of pant. The pant was converted into cloth pullanda, sealed with the seal of RRK. Exhibits were seized vide seizure memo Ex. PW5/D and Ex. PW5/E. PW19 prepared sample seal on two plain papers and seal after use was handed over to panch witness. PW19 prepared raid report Ex. PW19/A. PW19 also prepared rukka Ex. PW19/B and handed over the same to Ct. Mahavir to get the FIR registered from Duty Officer of PS Vigilance. PW19 also telephonically informed the Duty Officer for sending IO, which was recorded as DD No. 25B Ex. PW1/F and to senior officers about the success of the raid. Ct. Mahavir left the spot alongwith CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 21 of 125 rukka. After registration of FIR, PW19 also enquired about the FIR number from the Duty Officer telephonically and mentioned the same on the memos and exhibits prepared by him. At about 04.45 pm, Insp. Kailash Kukreti came at the spot. PW29 handed over the sealed exhibits, memos, copy of rukka, sample seals and custody of accused Dinesh Kumar and also explained facts of the case of Insp. Kailash Kukreti and left the spot. xix.b) PW19 correctly identified accused Ct. Dinesh Kumar before court. PW19 also correctly identified before court GC notes Ex. P1 and Ex. P2, glass bottles Ex. P3, Ex. P4, Ex. P5 and Ex. P6 as well as blue colour pant Ex. P7.
xx) PW20 ASI Mahavir Prasad deposed that on 26.09.2016 he joined raiding party alongwith RO/Insp. Dharamvir Gautam, HC Sunil, Ct. Rajender and HC Narender and at about 01.00 pm thay left PS Vigilance in two official vehicles for Apollo Hospital near DCP Office. RO gave briefing to the members of raiding team after reaching near divider of road near PS Sarita Vihar. Complainant Manoj and panch witness were also with them and IO briefed them that some traffic constable had called the complainant and there was a complaint against the said traffic constable regarding corruption. Both the vehicles were parked near the DCP Office and he took his position near the official vehicles. After some time, raiding team members were seen while coming with a traffic police official i.e. accused Ct. Dinesh and he came to know that Ct. Dinesh was caught red handed while accepting money, but he did not know how much was the total money. PW20 further deposed CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 22 of 125 that Raid Officer prepared a rukka, which was handed over to him for registration of FIR and he went to PS Vigilance and handed over to Duty Officer, who after registration of FIR handed over copy of FIR and rukka to him to hand over the same to IO/Insp. Kukreti. PW20 deposed that he found Insp. Kukreti in the office of PS Vigilance after about 20-25 minutes and handed him over both the documents.
xx.a) PW20 further deposed that from the possession of accused Dinesh Kumar, bribe amount of Rs.1500/- was recovered which were one GC note of Rs.1,000/- and one GC note of Rs.500/- denomination. After the recovery of amount, right hand of accused Dinesh Kumar was washed in a solution which turned pink. The said pink solution was kept in two plastic bottles and the bottles were sealed with the help of cloth by Insp. Dharamvir. The wearing pant of accused Dinesh Kumar was also put in the solution and it also turned pink. The pant was also sealed by the IO in a pulanda with the seal of the IO. xx.b) Ld. Chief PP for State with the permission of the court put some leading questions to PW20 and he deposed that the RO Insp. Dharamvir had prepared a sample seal on a paper of the specimen which were affixed on the sealed pulandas of bottles and pant. The bottles in which pink solution was kept by the RO and sealed were of glass and not of plastic. xx.c) He was cross-examined by ld. Counsel for the accused persons.
xxi) PW-21 ACP Kailash Chandra - IO of the case. He deposed that on 26.09.2016, an information was recorded in the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 23 of 125 PS Vigilance vide DD no. 25B given by Insp. Dharamvir regarding the raid conducted by him at near DCP Office, Sarita Vihar, South-East District. Accordingly, he reached at the spot at about 04:45 pm where he met Insp. Dharamvir Gautam, HC Sunil, HC Narender, Ct. Rajinder, complainant Manoj Kumar and panch witness Aneesh Ahmad. They were having custody of one person namely Ct. Dinesh Kumar of Traffic Circle Sukhdev Vihar from whom bribe amount of Rs.1500/- was recovered during the trap and raid conducted by Insp. Dharamvir Gautam. Case property was handed over to him by Insp. Dharamvir i.e. one sealed envelope of currency notes having seal of RRK, the sealed bottles containing handwash and pantwash having seal of RRK and one sealed pulanda of pant also sealed with the seal of RRK. He was also given the three seizure memos of the case property and two samples of sample seal affixed on two papers. The accused was also produced before him. PW21 prepared site plan Ex.PW5/L at the instance of complainant Manoj Kumar. Insp. Dharamvir had already obtained FIR number from the DO on telephone and had put the same on the seizure memos and pulandas prepared by him. He correctly identified accused Dinesh Kumar before the court. He further deposed that thereafter, they returned alongwith accused to PS Vigilance. PW21 interrogated accused in detail. Ct. Mahavir handed over copy of FIR to him. PW21 arrested the accused vide arrest memo Ex.PW5/G and conducted his personal search vide memo Ex.PW5/H. Case property was deposited in the malkhana and in this regard PW21 recorded a DD entry no. 8A. PW21 recorded statements of panch witness Aneesh Ahmad and complainant CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 24 of 125 Manoj Kumar, Ct. Mahavir and RO Insp. Dharamvir. PW21 also recorded disclosure statement of accused Ex.PW5/I. xxi.a) PW21 further deposed that on the next day i.e. on 27.09.2016, accused Dinesh was produced in the court and he was sent to J/C. On 28.09.2016, complainant Manoj Kumar joined the investigation and revealed that he was not knowing the whereabouts of his driver Deepak, who used to ply RTV in the area of Sarita Vihar, but complainant gave mobile number of Deepak. At that time the mobile number of Deepak was found switched off. PW21 further deposed that since other suspect Ct. Shivraj was also involved in the incident, he moved request to the service providers for obtaining the call details of Ct. Dinesh, Ct. Shivraj, complainant Manoj Kumar, driver Deepak and also of one Amit by whose mobile information was given on helpline of Vigilance by Manoj.
xxi.b) PW21 further deposed that on 05.10.2016, the exhibits of this case were sent to FSL, Rohini through Ct. Sikander. PW21 also deposed that on 06.10.2016, complainant Manoj informed that his four RTVs were being plied in the area of Sartia Vihar including the RTV no. DL-1VC-0247 on which the driver was Deepak. The owner of that RTV was actually Neeraj, who was his brother, and complainant only used to look after the affairs of that RTV. He produced the copies of documents i.e. permits and RCs. Stage carriage permit of one vehicle no. DL-1VC-0247 was not given at that time. PW21 seized those documents Ex.PW5/K (colly) vide seizure memo Ex.PW5/J. PW21 further deposed that he had also obtained the documents Ex.PW9/A2 regarding deployment of Ct. Dinesh at CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 25 of 125 Apollo Red Light Point on the day of incident on 26.09.2016. He came to know that on the day of raid, accused Shivraj was on casual leave vide application Ex. PW9/A3, copy of CL register Ex.PW9/A4 and the copy of rojnamcha register dated 26.09.2016 and 27.09.2016 Ex.PW9/A5 and Ex.PW9/A6 and PW21 seized those documents. PW21 further deposed that Ct. Shivraj had not reported for duty and was marked absent on 27.09.2016. PW21 obtained the DD entry no. 7 dated 26.09.2016 Ex.PW9/A1 regarding departure of Ct. Dinesh for his duty at the place of incident i.e. Apollo Red Light Point and seized vide seizure memo Ex.PW9/B. He made enquiries from ASI Hetram, who was ZO and was on duty with Ct. Dinesh Kumar on 26.09.2016 and he revealed that he was not present at the spot at the time of incident and was not aware of any demand made by Ct. Dinesh and Ct. Shivraj. PW21 also made enquiries from Neeraj, owner of RTV No. DL-1VC-0247 who also revealed that he was not aware regarding any demand made by driver Deepak as his brother Manoj was looking after the affairs of his RTV. xxi.c) PW21 further deposed that the FSL result Ex.PW11/A was received. Complainant Manoj had given an affidavit Ex.PW5/O regarding the GC notes that he did not want to take back the same. PW21 got verified the documents of permits of the vehicles collectively marked as Mark-PW21/X from the Transport Department and same were found to be in order. The CDRs alongwith CAFs of the mobile numbers were also obtained from the service providers and on examination, PW21 found that on the day of incident complainant had talked to Ct. Dinesh and Ct. Shivraj, however, the location of Ct.
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 26 of 125Shivraj was not found in the area of Sarita Vihar as he had left for some work to the area of Burari. PW21 also deposed that he found that mobile number of driver Deepak was not in his name and he was using the mobile number in the name of one Ramjani Khan R/o Taimur Nagar, Delhi. He made enquiry from Ramjani and he showed his inability to tell as to how mobile number was obtained by Deepak in his name. PW21 had also obtained the details of location of Amit, complainant Manoj and accused Dinesh of the day of incident and their location was found in the area near Apollo Hospital, Sarita Vihar. He obtained the CAF, CDRs and location charts of the relevant mobile numbers. xxi.d) PW21 further deposed that he had obtained the posting record of Ct. Shivraj Ex.PW16/B and seized vide seizure memo Ex.PW16/A. PW21 also obtained the record of duty roster from 03.09.2016 to 26.09.2016 of Ct. Dinesh and Ct. Shivraj Ex.PW7/A to Ex.PW7/A24, which were seized vide seizure memo Ex.PW7/B. PW21 also recorded statement of HC Satish Kumar. PW21 analyzed and examined the duty record of both the accused at the traffic point of Apollo Red Light, Sarita Vihar, Mathura Road and they were found to be on duty together on the dates i.e. 05.09.2016, 20.09.2016, 22.09.2016 and 24.09.2016. PW21 also obtained the details of challan of all the four RTVs and found that in the month of September 2016 no challan was found in respect of these RTVs. The details thereof were given by the Traffic Circle Incharge, Computer Centre, vide letter Ex.PW17/A. The permit of RTV no. DL-1VC-0247 was got verified and found that the said RTV used to be plied on the route between Nehru Place to Madanpur Khadar via Sarita Vihar, CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 27 of 125 Mathura Road. PW21 seized stage carriage permit vide seizure memo Ex.PW5/P. xxi.e) PW21 further deposed that during investigation, vide his application Ex. PW21/A, he had also got recorded statement of complainant Manoj Kumar U/s 164 Cr.P.C. and obtained its copy vide application Ex.PW21/B. xxi.f) PW21 further deposed that on 08.09.2020, driver Deepak joined the investigation of the case and he confirmed the demand of bribe by the police officials. PW21 obtained prosecution sanction against both the accused persons i.e. Ct. Dinesh Kumar and Ct. Shivraj Ex. PW18/A and Ex. PW18/B respectively, which was accorded by Addl. C.P., which were were forwarded from the DCP, Traffic Headquarters, vide letter Ex.PW18/C. PW21 also obtained the bio-data of both the accused persons i.e. accused Dinesh Kumar Ex.P3 and P2 and that of accused Shivraj Ex.PW21/C. PW21 deposed that Section 120B IPC was also added during investigation of the case as both Ct. Dinesh and Ct. Shivraj were found to be in conspiracy of demand and acceptance of bribe amount. PW21 interrogated accused Shivraj and he was not arrested in this case. PW21 prepared chargesheet against both the accused persons and filed the same in the court. PW21 correctly identified accused Ct. Shivraj before the court.
xxi.g) PW21 was cross-examined in detail by ld. Counsel for the accused persons.
9. During course of trial, on 24.08.2022 ld. Counsel for the accused Ct. Dinesh admitted document i.e. seizure memo CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 28 of 125 dated 07.11.2016 regarding posting record of accused Ct. Dinesh Kumar Ex. P-1(colly), copy of Bio-data of accused Ct. Dinesh Kumar Ex. P-2 (colly) and Bio-data of Ct. Dinesh Ex. P-3. Accordingly, PWs Ct. Prakash and SIP 6th Battalion, DAP were dropped from the list of prosecution witnesses. On 26.09.2023 ld. Counsel for both the accused persons did not dispute the genuineness of the proceedings conducted u/s 164 Cr.P.C. by Ld. M.M. Sh. Babru Bhan, Ex. PW5/A and they did not wish to cross-examine him and as such PW Sh. Babru Bhan, Ld. M.M. was dropped from the list of witnesses.
Statement of accused :
10. After conclusion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C wherein they denied the correctness of all the incriminating circumstances appearing in evidence against them and stated that they were was innocent and falsely implicated in the present case.
11. Accused Dinesh further stated that he had never met the complainant prior to 26.09.2016. On 26.09.2016, he was on duty at Apollo Hospital red light alongwith ASI Ramhet. One person whose name he later came to know as Manoj Kumar came to them and started talking with ASI Ramhet and him. Few person in civil dress reached there and apprehended him. ASI Ramhet ran away from there. Accused Dinesh also stated that he was immediately taken to PS Vigilance and falsely implicated in CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 29 of 125 the present case. He had never demanded any money from any Deepak or any Manoj Kumar for any purpose nor was he aware about plying of the RTV enroute Apollo red light. Apollo red light is busiest red light being Apollo Hospital intersection and entry and exit points for PS Sarita Vihar/DCP Office and various ACP officers due to official movement. The traffic police officials are deployed on red light to manage smooth movement only. He had never demanded any money from said Manoj Kumar nor accepted any money on 26.09.2016. It was not his duty to book the vehicle for any traffic violation being a constable. He stated that the investigating agency had not conducted the investigation in a fair and impartial manner.
12. Accused Shivraj further stated that he had never met the complainant. On 25.09.2016, he was on weekly off and on 26.09.2016, he was on leave. He stated that there had been no telephonic conversation as alleged between the complainant and him as well as Ct. Dinesh and him. He was not even present at the spot. Neither he had demanded any bribe nor had he asked the same to be handed over to anybody. He had always performed his duties diligently. It was not his duty to book the vehicles for any traffic violation being a constable. He further stated that the investigating agency had also not conducted the investigation in a fair and impartial manner. Accused Shivraj did not prefer to lead evidence in his defence.
13. Accused Dinesh Kumar preferred to lead evidence in his defence and has examined following seven defence CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 30 of 125 witnesses :
i) DW1 Pawan Singh, Nodal Officer, Vodafone Idea Ltd., proved the Cell ID Location Chart as Ex. DW1/A and Certificate u/s 65B of Indian Evidence Act as Ex. DW1/B. He also stated that the Cell ID Nos. 404110015901162 and 404110015901162 pertain to Telephone Exchange, C.P., near Super Bazar, Delhi.
ii) DW2 HC Bishnu deposed that as per record the FIR no. 6/2016 was freezed on CCTNS Portal on 27.09.2016 at 09:33:50 am. He further deposed that as per as per Helpline Call Register of 1064 pertaining to year 2016-2017 Ex. DW2/A, no call was made to the helpline no. 1064 on 22.09.2016. He further deposed that as per DD Register dated 22.09.2016 record, no entry with regard to call made from mobile no. 9911292178 on 1064 on 22.09.2016.
iii) DW3 Insp. Mahesh Kumar, who lodged DD entry No. 17 dated 26.09.2016 Ex. PW9/A regarding absence of ASI Ramhet and Ct. Dinesh at the place of their duty point i.e. Apollo Hospital Red Light, Mathura Road, at 03.00 pm.
iv) DW4 SI Umesh Tiwari proved the order no. 3708-
4068/HAR/PHQ dated 10.05.2013 passed by Sh. Neeraj Kumar, Commissioner of Police, as Ex. DW4/A and its forwarding letter Ex. DW4/B. CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 31 of 125
v) DW5 SI Murari Lal proved the RTI reply no. (ID- 1628/23)/07 dated 02.01.2024 Ex. DW5/A. He deposed that RTI application was filed by Dinesh s/o Tara Chand.
vi) DW6 HC Sandeep Dagar proved the RTI Repy no. F.337/23/2262/RTI Cell/Traffic (HQ) dated 14.06.2023 as Ex. DW6/A. He deposed that the RTI application was filed by Dinesh s/o Tara Chand.
vii) DW7 Amit Kumar, who deposed regarding a call made by him to helpline no. 1064 from his mobile no. 9911292178 in September 2016.
Thereafter defence evidence was closed by the ld. Counsel for the accused Dinesh.
Arguments :
14. It is argued on behalf of Ld. Counsels for accused persons that the prosecution has failed to prove the initial demand as well as demand at the spot. It is stated that PW-5 complainant has not supported the prosecution case and was declared hostile. His driver Deepak PW-15 also did not support the prosecution case. The demand of bribe is also not established through the testimony of panch witness PW-6. It is urged that mere recovery of bribe amount is not sufficient to hold the accused persons guilty of the offence U/s 7/13 P.C. Act. It is urged that the prosecution has not been able to prove the CDRs, CAFs and cell ID charts of the accused persons and the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 32 of 125 complainant. It is stated that there are contradictions in the testimony of panch witness and the witnesses of raid. It is urged that the accused persons being traffic constables were not authorized to book vehicles for traffic violations. It is urged that the prosecution has not examined Amit Kumar, from whose mobile phone the initial complaint was made at 1064, Neeraj, owner of RTV in issue or ASI Rahmat who was posted with accused Dinesh at red light of Apollo Hospital. It is argued that the sanction to prosecute u/s 19 P.C. Act is defective. It is urged that the testimony of Raiding Officer PW-19 and panch witness PW-6 is not of the nature on the basis of which guilt of the accused persons can be arrived at. It is accordingly prayed that the accused persons are liable to be acquitted of the charged offences.
15. On the other hand, it is argued by Ld. Chief P.P. for the State that no doubt the complainant PW5 and the driver of RTV namely Deepak PW15 have turned hostile, however the panch witness PW6 has supported the prosecution case. The testimony of panch witness PW-6 read with the testimony of Raid Officer PW19 as well as the IO/PW21 and other witnesses is sufficient to arrive at finding of guilt of the accused persons and the fact that the accused persons have conspired with each other to obtain illegal gratification from the complainant for allowing his RTVs to ply on the route between Nehru Place to Madanpur Khadar. Their testimonies are also corroborated by the CDRs of the complainant and the accused persons. Accused Dinesh Kumar was caught red-handed at the spot during raid CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 33 of 125 proceedings. The bribe money was also recovered from accused Dinesh Kumar. It is stated that the hand-wash and pocket wash of accused Dinesh Kumar turned pink and the FSL result Ex. PW11/A indicates presence of Phenolphthalein and Sodium Carbonate. It is argued that the CDRs of the accused persons and the complainant indicates that they were in touch with each other in accordance with the prosecution version. It is accordingly prayed that the accused persons are liable to be held guilty of the offences they are charged with.
16. I have heard ld. Counsel for the parties and perused the record.
Defective Sanction :
17. At the outset it is contended by ld. Counsel for the accused persons that the sanction orders u/s 19 P.C. Act for prosecution against the accused persons are defective. It is urged that the sanction orders Ex. PW18/A qua accused Ct. Dinesh Kumar and Ex. PW18/B qua accused Ct. Shivraj have been accorded by PW18 Sh. S.D.Mishra, who was the Additional Commissioner of Police (Traffic) at that time. It is stated that the disciplinary authority to accord sanction for a Constable is DCP (Traffic), which fact is admitted by PW18 and hence PW18 was not competent to accord sanction vide Ex. PW18/A and Ex. PW18/B.
18. During cross-examination of PW18, he produced copy of the order dated 07.05.2021 Ex. PW18/DA. As per the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 34 of 125 said order dated 07.05.2021, PW18 Sh. S.D.Mishra, Additional C.P./T(SR) was also ordered to look after the work of Additional C.P./DCP/T(HQ). It was further ordered that all sections of the Traffic Head Quarter except Traffic Modernization and TE will directly report to Additional C.P./DCP/T(HQ) Sh. S.D.Mishra, who will also be the Head of Office.
19. In his cross-examination by ld. Counsel for the accused, PW18 also stated that Additional Commissioner of Police is senior in hierarchy to the DCP and is one rank senior to the DCP. Accordingly, PW18 was holding a higher rank than the DCP and vide order dated 07.05.2021 Ex. PW18/DA he was given additional charge of DCP(T)(HQ), who was the competent authority to grant sanction for prosecution qua the accused persons, who were holding the post of Constable. Since PW18 was an official of higher rank than DCP, therefore, there was no question of delegation of powers of DCP to him and vide order Ex. PW18/DA he was directed to also look after the work of DCP(T)(HQ), which would also include the power to accord sanction even though not specifically stated therein. Hence, PW18 was competent to accord sanction u/s 19 PC Act qua the accused persons.
20. It is also contended by ld. Counsel for the accused persons that the sanction order was passed on the basis of a typed sanction order which is in the form of the initial note-sheet on the office file Ex. PW18/DB. It is stated that the sanction order was signed by PW18 without any application of mind in a mechanical CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 35 of 125 manner. However, perusal of Ex. PW18/DB reveals that it mentions the bare facts of the case, whereas the sanction orders Ex. PW18/A and Ex. PW18/B are detailed orders which besides the facts also deal with the FSL result, the CDRs and mention about the statements of witnesses and hence, the aforesaid contention of ld. Counsel for accused is without any substance. Though the aforesaid sanction orders Ex. PW18/A and Ex. PW18/B do not bear any date, however, they bear the signatures of PW18 and they were forwarded to DCP Vigilance on 24.09.2021, as deposed by PW18. There is nothing on record to suggest that the sanction order were signed on some other date and as the order giving additional powers to PW18 to look after the work of DCP(T)(HQ) is dated 07.05.2021, therefore PW18 had the requisite authority to grant prosecution sanction qua the accused persons. In these circumstances, the contention that the sanction orders Ex. PW18/A and Ex. PW18/B are defective, is untenable.
Testimonies of Complainant and Other Material Public Witnesses:
21. PW5 Manoj Kumar deposed that he was a transporter by profession and was running RTV vehicles in the route from Madanpur Khadar to Nehru Place via Sarita Vihar underpass Crown Plaza, Govindpuri Metro Station. One week prior to 26.09.2016, Deepak his driver on RTV vehicle no. DL-
1VC-0247 informed him that the traffic police officials of that route were demanding Rs.500/- per vehicle for plying the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 36 of 125 vehicles on that route and further that on 24.09.2016 they again demanded money and had stopped the RTV. On 24.09.2016, Deepak telephonically informed him that the traffic officials deputed at underpass Crown Plaza were demanding Rs.500/-. PW5 asked him to make them talk with him but the traffic police officials refused to talk with him telephonically. The traffic police officials further threatened his driver Deepak to impound his vehicle. Thereafter on the same day, PW5 made a call on number 1064 from his mobile phone and he was directed to visit the office of Vigilance the next day. PW5 got typed a complaint against the traffic police officials and visited the office of Vigilance on the next day. PW5 stated that in his complaint the names of the traffic police officials were not mentioned by him and as such he was directed to come on the next day alongwith the names of traffic police officials.
22. The next day i.e. on 26.09.2016, PW5 again visited the office of Vigilance alongwith the same complaint. He tried to find out the names of the traffic police officials, who were demanding money, but could not succeed. He was asked to sit there in the office. The Vigilance officials tried to find out the names of the traffic police officials, who were demanding money and were posted at underpass Crown Plaza. The Vigilance officials also provided him with one mobile number and asked him to talk on the said number. PW5 was directed to contact at the number provided by the Vigilance officials and to ask for the identity. PW5 called on the said number and tried to find out the name and address of the person speaking but the said person CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 37 of 125 refused to tell his name and disconnected the phone. The Vigilance officials also asked PW5 whether he had brought Rs.1,500/-, which was to be given as bribe to the traffic police officials. PW5 apprised them that he had Rs.8,000/- or Rs. 9,000/- with him at that time. The Vigilance officials took Rs.1,500/- from him and applied powder on the said notes. One of the notes was of Rs.1,000/- denomination and the other note was of Rs.500/- denomination. After applying powder on the GC notes, the notes were handed over to him (PW5) by the Vigilance officials, which were kept by him. He was made to sit at the Vigilance office for about 2-3 hours. Thereafter he was taken alongwith 3-4 other police officials to Sarita Vihar Metro Station. There the Vigilance officials provided him with another mobile number and asked him to talk on the said number and told him that the mobile number which he had to contact was of ASI Rahmat Ali. PW5 tried to contact on the said number but it was not picked up. Again PW5 was asked to contact the previous number which was earlier provided by the Vigilance officials at the office and as such PW5 made a call on the said number and the phone was picked up. PW5 stated to the person that he was the owner of the vehicle, namely Manoj. The said person replied that he was on leave and disconnected the phone. Another mobile number was provided by the Vigilance officials and PW5 was asked to make a call on the said number. PW5 tried to contact on the said number but nobody picked up the phone. After some time, PW5 received call from that number and he asked about the identity of the person who was talking. PW5 also disclosed his identity that he was owner of the vehicle and he wanted to talk to CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 38 of 125 him. The said person replied that he was managing traffic outside DCP, South-East office and disconnected the phone. After that PW5 alongwith the police officials of Vigilance reached outside the office of DCP, South-East. Two traffic police officials were managing the traffic there. The Vigilance officials caught one of the traffic police officials and the other fled away from there. After that PW5 alongwith the apprehended traffic police official and the Vigilance officials returned back to Vigilance office. PW5 was made to sit in another room at the Vigilance office. The Vigilance official asked PW5 to hand over the powder smeared notes i.e. Rs.1,500/- which were with him. PW5 apprised them that the powder treated notes were mixed up with the other notes which he was having in his wearing pant pocket. The Vigilance officials took one note of Rs.1,000/- and one of Rs.500/- denomination from the aforesaid notes and the said GC notes were kept in an envelope. Thereafter PW5 was again asked to sit in another room of the office. After some time PW5 was asked to sign some papers, some of which were blank and some were written. PW5 was also asked to sign on paper slips affixed on 2-3 glass bottles containing white solution and after that he was asked to leave their office.
23. PW5 deposed that he could identify the traffic police officials, who were apprehended by the Vigilance officials, however, after looking in the court room, PW5 stated that the said person was not present in the court.
24. PW5 further deposed that after about two years, he CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 39 of 125 was again called at Vigilance office and then he accompanied the officials of Vigilance to Tis Hazari Court. PW5 deposed that he was asked by the Vigilance officials to narrate the facts whatever was written on a paper given to him, to the Ld. Judge and he gave his statement u/s 164 Cr.P.C. Ex.PW5/A. PW5 also identified his signature on complaint Ex.PW5/B and stated that the said complaint was in his handwriting. PW5 also identified his signatures on the seizure memo of currency notes Ex.PW5/C, seizure memo of hand-wash and pant wash Ex.PW5/D, seizure memo of pant Ex.PW5/E, pre-raid report Ex.PW5/F, arrest memo of accused Dinesh Kumar Ex.PW5/G, his personal search memo Ex.PW5/H and his disclosure statement Ex.PW5/I, seizure memo of documents of RTV Ex.PW5/J and the documents annexed with the seizure memo running into 7 pages Ex.PW5/K (colly), site plan Ex.PW5/L and his voter ID card Ex.PW5/M placed on judicial file alongwith photocopy of the CAF.
25. PW5 also correctly identified the case property i.e. GC notes Ex.P1 and Ex.P2, envelope/pulanda containing seized currency notes Ex.PW5/N, one sealed bottle containing pink solution marked as RHW-I as Ex.P3, another sealed bottle containing pink solution marked as PRPW-I as Ex.P4, another sealed bottle containing pink solution marked as RHW-II as Ex.P5 and another sealed bottle containing pink solution marked as PRPW-II as Ex.P6. PW5 also identified his signature on the yellow colour envelope on which 'pulanda pant' was written, however, he could not identify his signature on the inner lining of the right side pocket of the blue colour pant Ex.P7.
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 40 of 12526. PW5 also identified his signatures on the affidavit Ex.PW5/O and seizure memo regarding seizure of photocopy of stage carriage permit Ex.PW5/P (colly).
27. On being cross-examined by Ld. Addl. PP for the State, PW5 denied that the traffic police officials posted in front of Apollo Hospital were demanding money at the rate of Rs.500/- per month per vehicle from his driver for plying the RTV vehicles. However, PW5 admitted that one week prior to 26.09.2016, the driver of his RTV no. DL-1VC-0247 had telephonically informed him that the traffic police officials posted in front of Apollo Hospital red light had demanded monthly money for plying the vehicle on the said route. PW5 denied that on 26.09.2016 in the morning, traffic officials namely Dinesh Kumar and Shivraj Singh had contacted him from mobile no. 9136267214 and had asked him to give Rs.1,500/- to them for plying his vehicles on the said road. PW5 further denied that he informed the names of accused persons when he made a call at 1064. He also denied having made statement dated 26.09.2016 Mark-X1 to the Vigilance officials. However, PW5 admitted that on 26.09.2016, he had visited the Vigilance office in the morning and had written a complaint Ex.PW5/B there. PW5 denied that one panch witness Aneesh Ahmad was also present there when he was writing the complaint or that the panch witness had also verified the contents of the complaint from him and after satisfying himself panch witness had also signed the same. PW5 also denied that he had taken with him Rs.1500/- only at CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 41 of 125 Vigilance office and the serial numbers of the GC notes were mentioned in the pre-raid report prepared by RO. PW5 also denied the facts regarding demonstration given by the RO to him and the panch witness. He denied that panch witness was asked to touch the powder smeared notes with his right hand or that the right hand wash of the panch witness was taken by the RO which turned pink or that the specialty of the phenolphthalein powder was explained to him and panch witness or that the powder treated notes were handed over to him by the RO or that the RO had directed him to remain with the panch witness at the time of transaction i.e. giving of the bribe money or that he was directed to hand over the bribe to the accused namely Dinesh and Shivraj when the same was demanded by them or that the panch witness was also directed to remain present with him to overhear the spot conversation and to see the bribe transaction or that when the panch witness was satisfied, he should give signal to the raiding party by waving his right hand over his head or that the pink solution i.e. the right hand wash of the panch witness was thrown by the RO or that the plastic mug was cleaned with the help of soap and water or that the bottle containing the remaining phenolphthalein powder was closed or that he alongwith the panch witness and RO cleaned their hands with soap and water. PW5 stated that he did not remember the time of leaving the PS Vigilance alongwith raiding team, however, they left the PS in two vehicles. PW5 denied that the panch witness Anees Ahamd also accompanied them with raiding party. PW5 did not remember the numbers of the officials vehicles in which they had left the PS Vigilance as to whether those were DL-1CJ-5549 or CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 42 of 125 DL-1CJ-4543. PW5 denied that on way when they reached near Ashram Chowk, he received call of Ct. Dinesh on his mobile phone, who stated to him that Ct. Shivraj was outstation and he was asked by Ct. Dinesh to meet him near Apollo Hospital.
28. PW5 denied that thereafter he called Ct. Shivraj on way, who stated that he was busy at airport and instructed PW5 to hand over the amount to his associate Dinesh. PW5 denied that he was deliberately deposing falsely in this regard as the call details of my mobile number as well as of accused persons shows that such calls were exchanged or that he was liable to be punished for giving false evidence.
29. PW5 denied that the raiding team alongwith him and panch witness reached at the gate of DCP, South-East office and raiding team took position in a scattered manner there or that accused Dinesh Kumar was present there discharging his official duty or that he met with accused Dinesh or that Ct. Dinesh asked him about the identity of the panch witness or that he replied that he was a known person, who has work at Sarita Vihar, or that during talks Ct. Dinesh stated to him " paise lekar aaya hai, laa de, kaha hai" or that on his demand he (PW5) took out the powder smeared notes from his shirt pocket and handed over the same to accused Dinesh or that accused Dinesh accepted bribe from him from his right hand and without counting put the same in the right side pocket of his wearing pant. PW5 further denied that accused Dinesh accepted the bribe from him and panch witness Anees Ahmad gave pre-determined signal to the raiding CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 43 of 125 party or that raiding party immediately came there and surrounded accused Dinesh or that panch witness apprised the happenings to the RO or that panch witness stated that accused Dinesh had accepted the bribe from him (PW5) and kept the same in the right pocket of his pant. PW5 denied all the post-raid proceedings regarding taking of hand-washes and collection of the exhibits including hand-wash, pant wash and the pant of the accused. He also denied that any amount was recovered from accused Dinesh by the panch witness or that the said GC notes were seized by the IO.
30. PW5 also denied that RO prepared the rukka or that exhibits/documents alongwith the accused were handed over by the RO to the IO. PW5 alongwith denied that the site plan was prepared by the IO at the instance of panch witness and at his instance. PW5 also denied that accused Dinesh was arrested in the present case in his presence or that the documents regarding his arrest were prepared in his presence.
31. PW5 also denied that his statement Mark-X2 was recorded on 28.09.2016 at PS Vigilance. PW5 admitted that he had stated to the police officials that the mobile number of his driver Deepak was 9911805668, who was the driver of RTV vehicle no. DL-1VC-0247. He denied that one week prior to 26.09.2016, his driver Deepak had made him to talk to Ct. Shivraj of traffic police on this mobile number. PW5 denied that he had made call on 22.09.2016 from mobile no. 9911292178 of one Amit r/o Madan Pur Khadar, his known on helpline no.
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 44 of 1251064. He volunteered that he made call at helpline no. 1064 from his mobile phone no. 9311818181. PW5 was confronted with relevant portions of his statement Mark-X2.
32. PW5 admitted that his statement Mark-X3 was recorded by Vigilance officials on 06.10.2016. He admitted that he had handed over the attested copies of the documents related to his vehicle no. DL-1VC-0247 and DL-VC-0135, DL-1VA- 9562 and DL-1VC-0666 which were plying in the route from Madanpur Khadar to Nehru Place via Sarita Vihar, route code F- 414A. PW5 admitted that three buses out of four were registered in his name and vehicle no. DL-1VC-0247 was registered in the name of his cousin Neeraj Chauhan and they were having valid permit for plying said three buses. PW5 admitted that when he had made complaint on helpline no. 1064, the duty officer had asked him to visit the Vigilance office on the next day. He also admitted that when he visited the Vigilance office on the next day regarding his complaint, he was asked to come on Monday i.e. 26.09.2016. PW5 affirmed that later he came to know about the mobile no. 9136267214 as of Ct. Shivraj. He denied that Deepak had received call from mobile no. 9136267214 in the morning of 26.09.2016 and had apprised him that Shivraj was with Ct. Dinesh and had asked him to come near Traffic Point to meet him. He further denied that on 26.09.2016, he received call of accused Dinesh or that he had telephonically contacted accused Shivraj on his mobile number and he had asked him to meet accused Dinesh at Apollo Hospital or that Ct. Shivraj had apprised that he was busy in arrangement or that he had asked CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 45 of 125 him to meet accused Dinesh or that he had also apprised that he was performing duty with Ct. Dinesh at Apollo red light traffic point or that he further apprised that Dinesh was aware about their talks or that accused Shivraj was demanding money for smooth plying of RTV on the said route or that he had met Shivraj once and had never met Dinesh prior to 26.09.2016. He was confronted with relevant portions of his statement Mark-X3.
33. PW5 admitted that his statement Mark-X4 was recorded on 09.02.2017 by the Vigilance officials. PW5 admitted that he was asked by the IO regarding the exchange of case property i.e. the seized currency notes due to demonetization and he had refused for the same and gave one affidavit in that regard.
34. PW5 stated that his statement dated 07.04.2018 Mark-X5 was recorded by the Vigilance officials. He admitted that he joined the investigation on 07.04.2018 and handed over photocopies of stage carriage permit of vehicle no. DL-1VC- 0247 which was seized by the IO through seizure memo.
35. PW5 denied he had given his statement U/s 164 Cr.P.C. Ex.PW5/A voluntarily and not on the asking of the Vigilance officials. He also denied that he was not made to read any written document by Vigilance officials before recording of his statement U/s 164 Cr.P.C.
36. Accused Dinesh was pointed out to PW5 in court with the suggestion that he was the same person against whom he CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 46 of 125 lodged his complaint and mentioned his name therein and that accused Dinesh was apprehended on 26.09.2016 by the Vigilance officials after accepting bribe from him but PW5 denied the suggestion of the State and stated that he was not the same person who was apprehended on 26.09.2016 during the raid proceedings.
37. Attention of PW5 was also drawn towards the accused Shivraj present in the court with the suggestion that he was the same person against whom PW5 lodged his complaint and also mentioned his name in the complaint, however, PW5 denied the suggestion and stated that he had not mentioned the names of accused persons in his complaint.
38. PW5 denied that he had been won over by the accused persons and therefore he was intentionally not disclosing the true facts of the case or that he was deliberately not identifying the accused persons before the court and against whom the complaint was lodged.
39. On a court question being put to PW5 he stated that he had made a call at help-line no. 1064 as his driver Deepak told him that traffic police constables were demanding monthly amount, failing which they threatened to impound his vehicles.
40. On another court question being put to PW5, he stated that he had not made any written complaint to any authority that he was asked to mention the names of accused CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 47 of 125 persons in his complaint by the Vigilance officials.
41. On another court question being put to PW5, he stated that the Ld. Magistrate while recording his statement under Section 164 Cr.P.C. had asked him if he was under any threat or any kind of influence for making the statement and he denied any such threat or influence before the Ld. Magistrate.
42. In his cross-examination by ld. Counsel for the accused Dinesh and Shivraj, PW5 denied that he was not informed by his driver Deepak about any demand by Traffic Police Officials at or near Apollo Hospital Traffic light. He also denied that he was not made to talk to any police officials by Deepak from any mobile number. PW5 stated that the drivers of his other vehicles never informed him about any demand by any Traffic Police Official on the route of his RTV vehicles. He stated that the complaint Ex. PW5/B was written by him as per the dictate of Vigilance Officials. He affirmed that till the time they returned back to PS Vigilance from the spot, the names of the Traffic Police Officials namely Shivraj and Dinesh were not known to him.
43. PW15 Deepak deposed that he was employed as a driver of RTV vehicle no. DL-1VC-0247 belonging to one Neeraj. He was not aware about the facts of the case and his statement was not recorded by the police. Thereafter Ld. Chief PP for the State sought permission to cross-examine PW15 as he was resiling from his statement.
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 48 of 12544. On being cross-examined by Ld. Chief P.P. for the State, PW15 denied having made statement Mark-PW15/A. PW15 affirmed that in the year 2012, he was working as a driver in Soundline Company situated at Taimur Nagar and he worked there for about 1½ years. He denied that he was using mobile no. 9911805668 which was in the name of Ramzani Khan or that it was obtained by him from retailer HRF International, Taimur Nagar, New Delhi in 2012. He also denied that the said mobile number was used by him from 2012 till September 2016. PW15 also denied that the RTV bus no. DL-1VA-0247 was being looked after by Manoj Kumar, who was cousin of owner Sh. Neeraj Kumar and who was also residing in Madanpur Khadar. He denied that in the evening of 20.09.2016 when he was carrying passengers in RTV bus no. DL-1VA-0247 from Nehru Place to Madanpur Khadar and reached ahead of Apollo Red light, two traffic police officials stopped the bus and asked him to park the same on the road side or that one of those traffic police official came to him, whose name was later disclosed as Shivraj, who asked PW15 to bring the documents or that PW15 told him that papers of the vehicle were complete at which he asked him (PW15) to give Rs.500/- per month as entry of the vehicle. PW15 also denied that he asked him (Shivraj) to talk with owner of the vehicle and Shivraj enquired from him the name of the owner of the vehicle at which PW15 told the name of the owner of the vehicle as Bablu @ Manoj. PW15 denied that thereafter, Shivraj asked PW15 to make him talk with owner of the vehicle or that thereafter, PW15 made him talk with Manoj @ Bablu CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 49 of 125 from his mobile no. 9911805668 on Manoj's mobile no. 9311818181 and thereupon Ct. Shivraj allowed PW15 to take the vehicle and thereafter, PW15 left for Madanpur Khadar alongwith the bus. PW15 was confronted with relevant portions of his statement Mark-PW15/A.
45. Ld. Chief PP pointed towards accused Ct. Dinesh and Ct. Shivraj but PW15 stated that he did not know them. PW15 affirmed that he received information regarding illness of his mother and thereupon he went to his village and remained there for about 4-5 months. He affirmed that he had not informed address of his village to Manoj and Neeraj as they used to contact him on his mobile. PW15 denied that when he went to his village, his SIM no. 9911805668 became out of order or that when he returned from his village and tried to change his aforesaid SIM, he could not do so as the SIM was in the name of Ramzani or that he tried to find Ramzani but could not find him. PW15 admitted that he was using mobile no. 9818131369. PW15 denied that Bablu @ Manoj and Neeraj were not aware about his aforesaid mobile number. PW15 affirmed that he did not meet with them as he was not willing to work with them and he started driving Taxi at Gurgaon. He affirmed that prior to lock-down, he went to his house and returned to Delhi in August. He denied that after returning from village, he met with Manoj @ Bablu, who brought him to Vigilance office on 08.09.2020 or that he joined the investigation of the present case and narrated the incident as mentioned in his statement Mark-PW15/A or that his statement Mark-PW15/A was recorded. PW15 denied that he CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 50 of 125 was won over by the accused persons as such he was deliberately concealing the true facts in order to help them and intentionally not identifying the accused persons.
46. PW15 was not cross-examined by ld. Counsel for the accused persons despite opportunity given.
47. PW6 Aneesh Ahmad, panch witness, deposed that on 26.09.2016, he visited at PS Vigilance at about 10:30/11:00 am and he was instructed by the DO to meet Insp. Dharambir Gautam. PW6 went upstairs and met with Insp. Dharambir Gautam where one person namely Manoj was also sitting. Insp. Dharambir Gautam apprised him about the allegations made by complainant Manoj regarding demand of bribe by two Constables namely Dinesh Kumar and Shivraj for permitting his vehicles to ply on the route of Madanpur Khadar to Nehru Place and that complainant did not want to give bribe to them. The complainant also told PW6 that both the police Constables were demanding Rs.500/- per vehicle from the complainant. Complainant also informed that one week prior to that day, his driver Deepak made him to talk with those police Constables i.e. Ct. Dinesh and Ct. Shivraj. Complainant had brought Rs.1,500/- with him i.e. one note of Rs.1,000/- denomination and another of Rs.500/- denomination. Complainant also told that on 22.09.2016, he made a call at PS Vigilance and he was asked to come on 23.09.2016 but on that day no action could be taken and therefore, he was called for that day i.e. 26.09.2016. PW6 deposed regarding the pre-raid proceedings whereby Insp.
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 51 of 125Dharambir Gautam instructed the complainant to give the bribe only on demand and PW6 was also instructed to remain with the complainant and to see and hear the conversation and only on the demand and acceptance of bribe by the accused, PW6 had to raise his right hand as a signal to the raiding party. PW6 also deposed that RO also noted down the serial numbers of the GC notes on a raid book (register type). PW6 deposed regarding the fact that the RO explained the specialty of the Phenolphthalein powder to him and to the complainant. Thereafter, the solution was thrown and their hands were also cleaned by soap and water.
48. PW6 further deposed that the raiding team consisting of PW6, complainant, Insp. Dharambir Gautam and other staff left the PS Vigilance in two vehicles at about 12-12.15 pm. On the way, complainant received a call from Ct. Shivraj and he told him that he was at airport and asked the complainant to hand over the bribe amount to Ct. Dinesh near DCP Office, Sarita Vihar. After some time, when they reached near red light complainant received call from Ct. Dinesh and he asked the complainant "kaha rah gaya bhai" on which the complainant replied that he was coming and told him to meet him as Shivraj was at airport. Thereupon, PW6 alongwith the complainant alighted from the vehicles before the red light point. Thereafter, PW6 and complainant crossed the road and reached the place where Ct. Dinesh, who was in traffic police uniform, met them. PW6 was having helmet in his hand and Ct. Dinesh enquired from the complainant about PW6 and complainant told him that he (PW6) was known to him and after some conversation Ct.
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 52 of 125Dinesh asked the complainant to give the money " paise de jo lekar aaya hai" and thereupon the complainant took out the GC notes from his pocket and handed over the same to Ct. Dinesh, who after accepting the same with his right hand put the same in the right side pocket of his wearing pant. Thereupon PW6 gave the pre-determined signal to the raiding party and the raiding team members reached there and apprehended Ct. Dinesh. PW6 correctly identified Ct. Dinesh before the court.
49. PW6 deposed that thereafter Insp. Dharambir Gautam gave his introduction to the accused and informed him that he was from Vigilance and told him that he had accepted bribe from the complainant and asked him if he wanted to take their search but the accused refused. Thereupon, Insp. Dharambir Gautam asked PW6 to take search of accused Ct. Dinesh. As accused accepted bribe in his presence, PW6 took out the bribe amount from the right hand side pocket of the wearing pant of the accused and handed over the same to RO, who kept the same in an envelope. Thereafter the hand-wash of the accused Ct. Dinesh was taken in a mug and the colour of the solution turned pink. The hand-wash of the accused was transferred into two glass bottles and they were sealed. The left hand-wash of the accused was also taken but it did not turn pink. Thereafter, the RO arranged one pant from nearby police booth and the right pocket wash of the wearing pant of the accused Ct. Dinesh was also taken and it also turned pink. The pant wash of the accused was also transferred into two bottles and the same were sealed. The pocket of the wearing pant of the accused Ct. Dinesh was CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 53 of 125 dried up and his signatures as well as of complainant were taken on the pocket of the pant of the accused. The pant was converted into a pulanda and sealed. Thereafter, all the exhibits were handed over to Insp. Kailash Chand by the RO and thereafter, they all returned to PS Vigilance. Some writing work was also done at PS Vigilance. He left the PS Vigilance at about 11:00 pm -12:00 night for his house.
50. PW6 correctly identified his signatures on the seizure memo of currency notes Ex.PW5/C, seizure memo of hand-wash and pant wash Ex.PW5/D, seizure memo of pant Ex.PW5/E, complaint Ex.PW5/B, the raid report Ex.PW5/C, arrest memo Ex.PW5/G, personal search memo Ex.PW5/H and disclosure statement of the accused Ex.PW5/I.
51. PW6 also correctly identified the case property i.e. one brown colour envelope Ex.PW5/N containing currency note of Rs.1,000/- denomination Ex.P1 and one note of Rs.500/- denomination Ex.P2, one sealed bottle containing pink solution marked as RHW-I as Ex.P3, another sealed bottle containing pink solution Marked as PRPW-I as Ex.P4, another sealed bottle containing pink solution marked as RHW-II as Ex.P5, another sealed bottle containing pink solution marked as PRPW-II as Ex.P6. PW6 also correctly identified his signatures on the inner lining of the right side pocket of the blue colour pant Ex.P7.
52. On being cross-examined by ld. Addl. PP for the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 54 of 125 State, PW6 affirmed that after raid proceedings when they returned to PS Vigilance, his statement dated 26.09.2016 was recorded by the IO. PW6 affirmed that a handwritten complaint Ex.PW5/B was given by the complainant to the RO in his presence before the raid and he had also signed after going through the contents of said complaint. PW6 also affirmed that the serial numbers of GC notes were not noted down by the RO on any register but same were noted down on pre-raid report Ex.PW5/F prepared by the RO, which was also signed by him. PW6 also affirmed that after the demonstration, RO handed over the powder smeared notes to the complainant who had kept the same with him. PW6 affirmed that firstly the phone of Ct. Dinesh was received on the mobile phone of the complainant while they were reaching near Ashram Chowk and thereafter, some conversation took place between complainant and Shivraj telephonically. He also affirmed that the complainant Manoj Kumar had received call of accused Ct. Dinesh Kumar from mobile no. 9013142142 and accused Dinesh had stated to the complainant that "paise lekar aaya hai, laa de". PW6 affirmed that serial numbers of the GC notes recovered from the accused Dinesh were compared by the RO with the serial numbers mentioned in the pre-raid report and found to be correct and the envelope containing the notes was sealed by the RO with his seal of RRK. PW6 also affirmed that all the glass bottles containing washes and the pulanda of the pant were sealed with the seal of RRK by the RO. He also affirmed that three seizure memos were prepared by the RO at the spot regarding the seizure of exhibits and he had signed the same. He also affirmed that he had also CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 55 of 125 signed the paper slips pasted on the glass bottles and that the seal after use was handed over to him by the RO. He also affirmed that site plan of the spot was also prepared in his presence at his instance as well as at the instance of complainant. He also affirmed that after returning to PS Vigilance, accused Ct. Dinesh was arrested in his presence and arrest papers i.e. Ex.PW5/G Ex.PW5/H were prepared and signed by him and the disclosure statement of accused Dinesh Ex. PW5/I was also recorded. He affirmed that due to lapse of time he could not recollect those facts.
53. Before appreciating evidence in this case, it is important to note that even in a case under Prevention of Corruption Act, 1988, the onus is on the prosecution to prove the the foundational facts. The Hon'ble Supreme Court in A. Subair v. State of Kerala [(2009) 6 SCC 587] while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)( d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
54. The Constitution Bench of Hon'ble Supreme Court in Neeraj Dutta vs. State, Govt. of NCT of Delhi, Crl. Appeal no. 1669 of 2009, with regard to the nature and quality of proof CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 56 of 125 necessary to sustain a conviction for offences under Section 7 or 13 (1) (d) (i) & (ii) of the PC Act, summarized as under :-
" 68. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d)
(i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 57 of 125 proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 58 of 125 mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point
(e) as the former is a mandatory presumption while the latter is discretionary in nature."
55. The Hon'ble Supreme Court in State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede Crl.Appeal No. 1350 of 2009, d.o.d. 29.07.2009 held that the foundational facts must be established by the prosecution. It was also observed that that while invoking the presumption under section 20 of PC Act, the court is required to consider the explanation offered by the accused, if any, only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. The Hon'ble Supreme court made the following observations in this regard:
"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-`-vis the standard of burden of proof on the prosecution would CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 59 of 125 differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
56. As regards raising of presumption under section 20 of the PC Act, it was held in Mukut Bihari Vs State of Rajasthan, 2012 (11) SCC 645 as under :-
"The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification but the burden rests on the accused to displace the statutory presumption raised under section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 60 of 125 possession, the foundational facts must be established by the prosecution. The complainant is an interest and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused persons."(emphasis supplied)
57. As regards drawing of presumption, it has been held in Madhukar Bhaskarrao Joshi Vs State of Maharashtra, (2000) 8 SCC 571 as under:-
"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 premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification of 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 word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it." (emphasis supplied)
58. The presumption under section 20 of the PC Act is rebuttable either through cross-examination of witnesses of prosecution or by adducing reliable evidence as held in C. M. Girish Babu vs CBI, Cochin High Court of Kerala (2009) 3 SCC
779. CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 61 of 125
59. In State of Punjab v. Madan Mohan Lal Verma , (2013) 14 SCC 15, the Hon'ble Supreme court made the following observations as regards the burden of proof upon the prosecution and the accused in light of presumption under section 20 PC Act.:
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] ,T. Subramanian v. State of T.N. [(2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , State of Kerala v. C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642 : (2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136] .)" (emphasis CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 62 of 125 supplied)
60. Viewed in light of law discussed herein-above, it has to be examined as to what extent the prosecution has succeeded in proving the charge against the accused.
61. It is the case of the prosecution that accused Ct.
Dinesh and Ct. Shivraj demanded bribe amount of Rs. 1500/- (Rs. 500/- per vehicle) from the complainant PW5 and his driver Deepak PW15 for permitting them to ply the RTVs on the route from Nehru Place to Madanpur Khadar as monthly amount and in pursuance to the demand they obtained Rs. 1500/- from the complainant on 26.09.2016 as illegal gratification and accordingly they are liable to the held guilty for the charged offences.
62. It is contended by the ld. Counsel for the accused persons that the complainant PW5 and PW15 Deepak did not support the prosecution version and were hostile to the prosecution case and hence their testimony cannot be relied upon. It is stated that the complainant was coerced into mentioning the names of the accused persons in the complaint Ex. PW5/B which the complainant has stated that he had written at the dictation of the Vigilance officials. It is further stated that the statement of the complainant under Section 164 Cr.P.C. was made by the complainant on the basis of written document given to the complainant by the Vigilance officials before recording his CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 63 of 125 statement under Section 164 Cr.P.C. and therefore same cannot be also relied upon by the prosecution.
63. From perusal of testimony of the complainant PW5 it is revealed that he has not supported the prosecution version on material points and is hostile on the essential aspects of the case. Even the driver of the RTV vehicle Deepak PW15 has not supported the prosecution version and he has denied that any demand was made from him by any traffic police official. However, it may be noted that it is settled law that it is not that the testimony of hostile witnesses is to be discarded altogether and the same is available to be read. In this context, reference can be made to Dhananjay Singh Chauhan vs State, 2013 IV AD (Cri) (DHC) 259, wherein the Hon'ble Supreme Court observed as under:
"There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryana [AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa [AIR 1977 SC 170] it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 64 of 125 hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy." (emphasis supplied)
64. The above principle of law has been followed in Krishan Chander vs. State of Delhi, (2016) 3 SCC 108 etc. The law therefore permits courts to take into consideration the deposition of the hostile witness to the extent the same is in consonance with the case of the prosecution and is found to be reliable on careful judicial scrutiny. Conviction can be based on such a testimony, if corroborated by other reliable evidence. Therefore, testimony of the complainant Manoj Kumar and his driver Deepak PW15 cannot be wholly rejected and the same is relevant. The testimony of the complainant PW5 and his driver PW15 has to be now examined on the touchstone of the law discussed hereinabove.
65. From perusal of testimony of the complainant PW5 it is revealed that he was a transporter by profession, whose RTV vehicles used to ply in the route from Madanpur Khadar to Nehru CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 65 of 125 Place via Sarita Vihar underpass Crown Plaza, Govindpuri Metro Station. The complainant also deposed that his driver Deepak on RTV vehicle no. DL-1VC-0247 had informed him that one week prior to 26.09.2016, the traffic police officials of that route were demanding Rs.500/- per vehicle for plying the vehicles on that route. The said fact is also mentioned in the complaint Ex. PW5/B. The complainant also deposed that on 24.09.2016 the traffic police officials again demanded money and stopped the RTV and his driver Deepak telephonically informed him that the traffic officials deputed at under-pass Crown Plaza were demanding Rs. 500/-. He asked his driver to make them talk to him telephonically but the traffic police officials refused and they threatened his driver Deepak to impound his vehicle. On the same day, PW5 made a call on 1064 regarding the incident and was directed to visit the Vigilance Office the next day. Hence, the complainant PW5 has supported the prosecution version to some extent and regarding the demand he stated that he was informed about the same by his driver, whereas in his complaint Ex. PW5/B he stated that his driver made him speak to the traffic official, who had demanded money from him and hence, the version as deposed before the court to this extent becomes hearsay.
66. PW5 further stated that he got typed a complaint against the traffic police officials and visited the Vigilance Office the next day i.e. on 26.09.2016 alongwith that complaint. However, he stated that the names of the traffic police officials CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 66 of 125 were not mentioned by him in that complaint.
67. The complaint Ex. PW5/B is a handwritten complaint. Complainant PW5 stated that the said complaint was in his handwriting and he identified his signatures thereon. It may be noted that the names of the traffic police officials i.e. accused Dinesh Kumar and Shivraj Singh are mentioned in the said handwritten complaint Ex. PW5/B. It is further mentioned in the said complaint that on 26.09.2016 in the morning he spoke to traffic police officials namely Dinesh Kumar and Shivraj Singh on mobile number 9136267214, who asked him to get Rs. 1500/- to allow him to ply the vehicles. The complaint further mentioned that since he was against bribery therefore he was giving a complaint in writing and wanted action to be taken against Ct. Dinesh Kumar and Shivraj Singh. In his deposition before the court, the said conversation with the accused persons on 26.09.2016 is not mentioned.
68. The complaint Ex. PW5/B, which is in the handwriting of complainant Manoj and also bears his signatures mentions the names of the traffic police officials as well as the fact that he had spoken to the traffic police officials namely Ct. Dinesh Kumar and Shivraj Singh on 26.09.2016, who demanded Rs. 1500/- from him for plying his vehicles and asked him to come and give that amount to them. In his entire examination-in- chief, the complainant did not state that the said complaint was CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 67 of 125 obtained from him under coercion by the Vigilance officials. It is also not stated by him in his detailed examination-in-chief and even in cross-examination by Ld. Addl.P.P. for the State that he had mentioned the names of the traffic police officials at the asking of the Vigilance officials. In fact, on a court question being put to him, he denied that he had made any written complaint to any authority that he was asked by the Vigilance Officials to mention the names of the accused persons in his complaint. It may be noted that on one hand the complainant stated that the complaint was in his handwriting, however, on the other hand he denied the suggestion that he had lodged the complaint while mentioning the names of the accused persons, even though the complaint Ex. PW5/B disclosed the names of the accused persons. Moreover, in his cross-examination by ld. Addl.P.P. for the State, PW5 affirmed that on 26.09.2016 he had visited the Vigilance office in the morning and had written the complaint Ex. PW5/B there. At that stage also, PW5 never stated that the complaint was written by him at the instance of Vigilance officials. It is thus apparent that the complainant deliberately tried to wriggle away from the fact that he had disclosed the names of the accused persons in his handwritten complaint Ex. PW5/B itself and therefore in his cross- examination by ld. Counsel for the accused he stated that the complaint Ex. PW5/B was written by him on the dictate of the Vigilance officials, which statement does not inspire any confidence in the light of his detailed examination-in-chief where no such assertion was made by the complainant despite being a hostile witness. Accordingly, the prosecution has been able to CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 68 of 125 establish that the complaint dated 26.09.2016 Ex. PW5/B was written by the complainant voluntarily.
69. Before proceeding with the remaining testimony of the complainant and other witnesses, it would be relevant to analyze the evidentiary value of the CAF and CDR (call details records) brought on record by the prosecution. To prove the CAF and CDRs, the prosecution has relied upon the testimony of PW4 Pawan Singh, Nodal Officer, Vodafone Idea Ltd., who was also examined as PW4A and PW4B. In his testimony recorded on 14.11.2022 he provided the certified copy of CAF of mobile no. 9911805668 Ex. PW4/B (stated by the prosecution to be the mobile number of Deepak, driver of complainant) and stated that as per CAF the said mobile number was issued in the name of Ramjani Khan. PW4 also provided the certified copy of CAF of mobile no. 9911292178 Ex. PW4/C (stated to be the mobile number from which the call was made at 1064 by the complainant) and stated that as per CAF the said mobile number was issued in the name of Amit Kumar Gupta. He proved the certified copy of call details records of said mobile numbers for the period between 15.09.2016 to 26.09.2016 Ex. PW4/A (colly) and proved the certificate u/s 65B of Indian Evidence Act regarding the CDRs of the above-said mobile numbers Ex. PW4/D.
70. In his cross-examination he stated that he had not CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 69 of 125 furnished the Certificate u/s 65B of Indian Evidence Act with respect to CAF i.e. Ex. PW4/B and Ex. PW4/C as they were scanned copies of the original CAF. He denied that the Certificate u/s 65B of the Indian Evidence Act was defective or that the CDRs were manipulated.
71. Be that as it may, considering the fact that the CAF of the mobile numbers 9911805668 and 9911292178 are not supported with certificate u/s 65B of Indian Evidence Act, they cannot be relied upon. However, the CDRs Ex. PW4/A (colly) being supported by Certificate us 65B of Indian Evidence Act are proved on record.
72. Sh. Pawan Singh was also examined as PW4A and he proved the signatures of Saurabh Aggarwal, who used to work as Nodal Officer with Vodafone Mobile Services Ltd., which merged with Idea Cellular Ltd. in September 2018. PW4 stated that he worked with Idea Cellular Ltd. in the year 2018 and after its merger he worked with Saurabh Aggarwal, who was the nodal Officer at the relevant time and he had seen him signing and writing in his official capacity. He identified signatures of Saurabh Aggarwal on the reply dated 08.09.2017 Ex.PW4A/C regarding certified copy of CAF and CDR of mobile no. 9311818181 Ex.PW4A/A and certificate U/s 65B of Indian Evidence Act issued by Saurabh Aggarwal Ex.PW4A/B. He stated that Saurabh Aggarwal had left the company and his CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 70 of 125 present whereabouts were not known to the company.
73. It is contended by ld. Counsel for the accused that PW4A was not competent to prove the aforesaid documents submitted by Saurabh Aggarwal to the IO as the said documents related to period prior to merger of Vodafone India with Idea Cellular Ltd. and PW4A had not worked with Sh. Saurabh Aggarwal prior to the merger as PW4A has stated that he had never worked with Vodafone Mobile Services prior to its merger with Idea Cellular Ltd. It is also stated that since Sh. Saurabh Aggarwal is stated to be alive at present, therefore, he should have been examined to prove the above documents and not PW4A.
74. From the testimony of PW4A it is manifest that Vodafone Mobile Services merged with Idea Cellular Ltd. in September 2018. The reply Ex. PW4A/C was furnished by Sh. Saurabh Aggarwal to the IO on 08.09.2017 i.e. prior to the merger, however, PW4A stated that he had worked with Sh. Saurabh Aggarwal, who was also the Nodal Officer after the merger and hence he had seen Sh. Saurabh Aggarwal signing and writing. Accordingly, since PW4A was conversant with the handwriting and signatures of Saurabh Aggarwal, therefore, he was competent to prove the signatures of Saurabh Aggarwal on the documents Ex. PW4A/A and Ex. PW4A/B which were furnished to the IO by Saurabh Aggarwal. Merely because CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 71 of 125 PW4A had not worked with Vodafone Mobile Services prior to the merger does not make him incompetent to prove the signatures of Saurabh Aggarwal as PW4A had worked with Saurabh Aggarwal and had seen him writing and signing. The handwriting and signatures of a person would not change merely because a merger of companies had taken place. The contention of the ld. Counsel for the accused that since Saurabh Aggarwal is alive, PW4 cannot prove his signatures and handwriting is without any merit as the whereabouts of Saurabh Aggarwal were not shown to be available with the company.
75. It is also contended by ld. Counsel for the accused that neither documents Ex.PW4A/A to Ex. PW4A/C were handed over to the IO in the presence of PW4A nor they were prepared in his presence and he had not checked the office record to see if the said documents were available in the office record and hence, the said documents cannot be proved by PW4A.
76. In this regard it may be noted that the aforesaid documents bear the signatures of Sh. Saurabh Aggarwal and seal of the company on each page and were provided to the IO by Sh. Saurabh Aggarwal alongwith the repy dated 08.09.2017 Ex. PW4A/C, on the letter-head of the company. No suggestion has been put to the witness that the said documents were manufactured or forged. Moreover the said documents are the record of the company. There is no reason to doubt the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 72 of 125 documents proved by PW4A and accordingly, the contention of Ld. Counsel for the accused in this regard is not tenable.
77. As per CAF of mobile number 9311818181 Ex.
PW4A/A (colly), the same is issued in the name of Manoj Kumar i.e. the complainant. Infact the complainant also deposed that his mobile number was 9311818181. Hence, the mobile number of the complainant is proved on record to be 9311818181. The CDR of the said mobile number of the complainant is part of Ex. PW4A/A (colly) from the period between 15.09.2016 to 26.09.2016 duly supported with certificate u/s 65B of Indian Evidence Act Ex. PW4A/B, and hence the same are proved on record.
78. PW Pawan Singh, Nodal Officer, Vodafone Idea Ltd., was also examined as PW-4B. He proved the CAF Ex. PW4B/A of mobile no. 9013142142, which was subscribed to Dinesh Kumar S/o Sh. Tara Chand i.e. accused Dinesh Kumar. He also proved the CDR of the mobile no. 9013142142 Ex.PW4B/B (colly) and the certificate under Section 65B of Indian Evidence Act dated 20.09.2017 as Ex.PW4B/C.
79. It is contended by ld. Counsel for the accused that the Certificate u/s 65B of Indian Evidence Act has been stated by PW4B as being fed in the system and only particulars were changed wherever required and therefore it is a defective CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 73 of 125 certificate. Ld. Counsel for the accused has placed reliance upon the judgment in the matter of Ashwani and Others vs. State, Criminal Appeal 323/2018, decided on 08.10.2018, in support of his contentions. It may however be noted that in the said case, the concerned Nodal Officer was still working with the company and despite the same, another person was examined to identify his signatures and hence, the facts of that case are not applicable to the present case.
80. PW14 Amit Sharma, Nodal Officer, Reliance Communications Ltd., deposed that the mobile no. 9136267214 was issued by MTS Company, which was taken over by Reliance Communications in September 2017. He proved the signatures of Sh. Pankaj Sharma, the then Nodal Officer and the stamp of MTS on CAF of mobile no. 9136267214 Ex. PW14/A (colly) as per which the said mobile number was issued in the name of Shivraj S/o Sh. Mandu Ram. He also proved the CDRs between the period 15.09.2016 to 26.09.2016 and cell location chart of the said mobile number as Ex.PW14/B(colly) as well as the certificate under Section 65B of I.E. Act in support of CDRs, Cell Location Chart and CAF as Ex.PW14/C.
81. PW14 was not cross-examined by ld. Counsel for the accused persons.
82. On a perusal of the CDRs of the complainant Ex.
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 74 of 125PW4A/A (colly) it is revealed that on 26.09.2016 a call was made from the mobile number of the complainant 9311818181 on mobile no. 9136267214 i.e. mobile number of accused Shivraj at 10.39 am which lasted for 67 seconds. In context of the abovesaid call, it is deposed by the complainant before the court that when he went to the Vigilance office on 26.09.2016, the Vigilance officials tried to find out the names of the traffic police officials, who were demanding money and were posted at underpass Crown Plaza. They provided one mobile number to the complainant and asked him to call on that number and find out the identity and when the complainant called on that number and enquired about the name and address from that person, he refused to tell his name and disconnected the phone.
83. Whereas in his complaint the complainant stated that he spoke on mobile no. 9136267214 in the morning on 26.09.2016 and the traffic police officials, who told their names as Ct. Shivraj and Dinesh demanded Rs. 1500/- for plying his vehicles and told him to come and give the amount to them.
84. It may be noted that according to the deposition of the complainant before the court, he spoke on the mobile number of accused Shivraj only upon his number being provided to him by the Vigilance officials to find out the name and address of that person. However, perusal of the CDR Ex. PW4A/A of the complainant and CDR of accused Shivraj Ex. PW14/B reveals CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 75 of 125 that a call was also made by the complainant on the mobile number of accused Shivraj on 22.09.2016 at 11.12 am which lasted for 40 seconds and another call was also made by the complainant on the mobile phone of accused Shivraj on 22.09.2016 at 06:35 pm which lasted for 24 seconds. Thereafter a call was made by accused Shivraj on the mobile phone of complainant on 23.09.2016 at 12:18 pm which lasted for 34 seconds, thereby indicating that the complainant and accused Shivraj were in constant touch with each other even prior to 26.09.2016. Hence, the version of the complainant before the court that he spoke to accused Shivraj only upon the mobile number being provided to him by the Vigilance officials does not inspire confidence and is contrary to record. Hence, the call made on 26.09.2016 at 10.39 am by the complainant on the mobile number of accused Shivraj also corroborates the version in the complaint Ex. PW5/B, thereby giving strength to narrative given in the complaint Ex. PW5/B.
85. Though the CAF of mobile number 9911805668 is not proved to be in the name of PW15 Deepak, the driver of the complainant, however, the complainant in his testimony recorded before the court stated that he had told to the IO that the mobile number of the driver Deepak of his RTV vehicle no. DL-1VC- 0247 was 9911805668. It is also noteworthy that in his complaint Ex. PW5/B, the complainant has stated that his driver Deepak made him speak with the police official at Apollo Hospital Red Light, who demanded monthly amount for plying CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 76 of 125 the vehicle on that road, however, PW5 denied a suggestion in that regard before the court. However, PW5 deposed that one week prior to 26.09.2016 his driver Deepak had informed him that the traffic police officials of that route were demanding Rs. 500/- per vehicle for plying the vehicles on that route. PW15 driver Deepak denied that he was using mobile no. 9911805668 at the relevant time or that in the evening of 20.09.2016 two traffic police officials stopped the bus and demanded Rs. 500/- per month as entry for the vehicle or that Ct. Shivraj spoke to the complainant from his mobile no. 9911805668 on the mobile number of the complainant 9311818181 or that thereafter Ct. Shivraj allowed him to take the vehicle.
86. However, it may be noted that the complainant has specifically stated that he had furnished the mobile no. 9911805668 as the mobile number of driver Deepak. Driver Deepak PW15 turned hostile and did not support the prosecution case and stated that the said mobile number did not belong to him. Perusal of the CDR of the complainant Ex. PW4A/A reveals that a call was received from mobile no. 9911805668, stated to be the mobile no. of driver Deepak by the complainant, on the mobile no. of the complainant i.e. 9311818181 on 20.09.2016 at 05.56 pm which lasted for 60 seconds and another call was made from the mobile number of the complainant 9311818181 on mobile no. 9911805668 at 05.58 pm which lasted for 48 seconds. The above-mentioned two calls corroborate the version of the complainant before the court as well as in the complaint Ex CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 77 of 125 PW5/B that in the previous week, the complainant had received call from his driver Deepak. Even though mobile number 9911805668 is not proved to be registered in the name of driver Deepak, however, it is the complainant's version himself that the said number was mentioned as the mobile number of his driver Deepak. However, the contents of the said conversation between driver Deepak and the complainant pertaining to allegations of demand against the traffic officials i.e. the fact that one week prior to 26.09.2016, his driver Deepak of RTV vehicle no. DL- 1VC-0247 informed the complainant that the traffic police officials of that route were demanding Rs. 500/- per vehicle for plying the vehicle on the route from Madanpur Khadar to Nehru Place via Sarita Vihar underpass, Crown Plaza, Govindpuri Metro Station, Delhi, are in the nature of hearsay as the same were told to the complainant by his driver Deepak.
87. Be that as it may, it is also proved on record by the prosecution that the mobile number of accused Shivraj is 9136267214. It is also proved on record that a call was made by the complainant from his mobile number 9311818181 on the mobile number of accused Shivraj at 10.39 am on 26.09.2016, which fact is also mentioned in the complaint Ex. PW5/B. Moreover, despite the complainant PW5 being hostile, the prosecution has been able to establish that the complaint Ex. PW5/B was written by the complainant at the Vigilance office on 26.09.2016. The said complaint Ex. PW5/B is in the handwriting of the complainant. The panch witness PW6 also affirmed that CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 78 of 125 the complaint Ex. PW5/B was given by the complainant to the RO in his presence before the raid proceedings and that he had signed the same after going through its contents. On the other hand, the accused persons have not been able to prove that the complaint was not written by the complainant voluntarily. Hence, there is no reason to doubt that the complaint was not given by the complainant freely and voluntarily. In view of the aforesaid discussion, it can be safely concluded that the prosecution has been able to prove the complaint Ex. PW5/B.
88. It is stated by the complainant in the complaint Ex. PW5/B that he had spoken to accused Shivraj Singh and Dinesh Kumar in the morning of 26.09.2016 on mobile number 9136267214 i.e. mobile number of accused Shivraj and they had demanded Rs. 1500/- in lieu of running his vehicles. Since the complaint Ex. PW5/B, which stands proved on record, mentions that the complainant had himself spoken to the accused persons, therefore, the initial demand of Rs. 1500/- by the accused persons stands proved through the complaint Ex. PW5/B.
89. It is stated by the complainant that on the date of raid i.e. 26.09.2016, he had handed over Rs. 1500/- to the Vigilance Officials which were to be given as bribe money to the traffic police officials. He also stated that the Vigilance officials took Rs. 1500/- (i.e. one currency note of Rs. 1000/- and one currency note of Rs. 500/- denomination) out of Rs. 8,000/- to CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 79 of 125 Rs. 9,000/- that he was having with him and the Vigilance Officials applied powder on the said notes. The complainant further stated that the GC notes were handed over to him after applying powder and subsequently he was taken alongwith 3-4 other police officials to Sarita Vihar Metro Station.
90. Hence, the complainant turned completely hostile as regards the presence of panch witness and the demonstration proceedings and pre-raid proceedings at PS Vigilance. However, the panch witness Aneesh Ahmad was examined as PW6 and the Raid Officer Insp. Dharamvir Gautam was examined as PW19 and their versions regarding the pre-raid proceedings, including demonstration proceedings and the raid proceedings corroborate each other and there is no reason to doubt their testimony. Infact, panch witness PW6 denied the suggestion that he was a stock witness of PS Vigilance and he stated that this case was his only duty with PS Vigilance and denied that he had been deputed many times for panch witness duty. The panch witness PW6 affirmed that the complaint Ex. PW5/B was given by the complainant to the RO in his presence before the raid and that he had signed it after going through the contents thereof. He also deposed regarding the pre-raid proceedings and the pre-raid report Ex. PW5/F.
91. It is further stated by the panch witness PW6 that at about 12.00-12.15 pm, the raiding team consisting of the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 80 of 125 complainant, Insp. Dharamvir Gautam, PW6 and other staff left the PS Vigilance in two vehicles. The said fact is also stated by the complainant except that the complainant has turned hostile regarding the presence of panch witness.
92. The complainant PW5 has further deposed that the Vigilance Officials provided him one mobile number on the way and told him to contact on that number, which was stated to be of ASI Rahmat Ali, however, that number was not picked up. The complainant was again asked to contact on the number provided by the Vigilance officials at their office and he made a call on the said number and the complainant told the person who picked up the phone that he was the owner of the vehicle, however, that person replied that he was on leave and disconnected the phone. Thereafter the complainant was asked to make a call on another number provided by the Vigilance Officials, however, when the complainant called on that number, it was not picked up. After some time the complainant received a call from that number and the complainant disclosed his identity as the owner of the vehicle to that person and asked about the identity of that person, at which that person replied that he was managing traffic outside DCP South-East Office.
93. Hence, as per the testimony of the complainant, he was asked by the Vigilance Officials to make three calls on the way to Sarita Vihar Metro Station i.e. (i) which was stated to be CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 81 of 125 the mobile number of ASI Rahmat Ali by the Vigilance Officials
- it was not picked up. (ii) on the number which was provided by the Vigilance Officials at the Vigilance office - it was picked up and the person told him that he was on leave and disconnected the phone, (iii) third mobile number which was not picked up by anyone and later that person called back and the complainant disclosed his identity to him and that person told him that he was managing traffic outside DCP South-East Office.
94. In this regard, PW6 panch witness, who was part of the raiding team, deposed that on the way to the spot the complainant received a call from Ct. Shivraj and he told him that he was at airport and asked the complainant to hand over the bribe amount to Ct. Dinesh near DCP Office, Sarita Vihar. After some time, when they reached near red light complainant received call from Ct. Dinesh and he asked the complainant "kaha rah gaya bhai" on which the complainant replied that he was coming and told him to meet him as Shivraj was at airport. In his cross-examination by ld. Addl.P.P. for the State, PW6 affirmed that when they were reaching Ashram Chowk initially a call of Ct. Dinesh was received on the mobile phone of the complainant and thereafter telephonically some conversation took place between the complainant and Ct. Shivraj. PW6 also affirmed that complainant received a call of accused Ct. Dinesh from mobile no. 9013142142.
CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 82 of 12595. In this regard, the Raid Officer PW19 Insp. Dharamvir Gautam has deposed that when they reached ahead of Ashram Chowk, Ct. Dinesh made a call on the mobile phone of complainant bearing no. 9311818181 and he told that on that day Ct. Shivraj was not available and asked him to meet him in front of DCP Office, Sarita Vihar. PW19 deposed that he and panch witness both were sitting in the same vehicle with the complainant. Thereupon complainant Manoj Kumar made a call from his mobile phone to Ct. Shivraj Singh in their presence and Ct. Shivraj told him that he was at airport and asked him to meet with Ct. Dinesh and to hand over the bribe amount to him.
96. Hence, both panch witness PW6 and the Raid Officer PW19 have deposed regarding the complainant speaking to Const. Shivraj and Ct. Dinesh on the way and that Ct. Shivraj told the complainant that he was at Airport and that he asked the complainant to hand over the bribe amount to Ct. Dinesh in front of DCP Office, Sarita Vihar. Both also deposed about speaking to Ct. Dinesh on the way, who asked the complainant to meet him as Ct. Shivraj was at the Airport.
97. In his cross-examination by ld. Counsel for accused persons panch witness PW6 stated that the mobile phone of the complainant was not on speaker mode at the time of receiving any call and that he came to know about the identity of the caller on the other side only from the complainant and it was not in his CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 83 of 125 personal knowledge as to with whom the complainant was talking and the conversations were not heard by him personally, however, he stated that he had given the narration whatsoever was told to him by the complainant when they were going for the raid. He denied that no telephonic conversation was ever conveyed by the complainant to him or to the RO at any point of time. PW6 also denied that no such telephonic conversation took place between the complainant and Ct. Dinesh or Ct. Shivraj. PW6 also denied that the complainant was made to call on three mobile numbers provided to him by the RO. PW6 denied that he had mechanically admitted the mobile number of Ct. Dinesh.
98. PW19 Raid Officer denied that he had provided the mobile number of ASI Rahmat Ali to the complainant after reaching near Sarita Vihar Metro Station and asked him to talk to him and he also denied that ASI Rahmat Ali did not pick up that phone call. He also denied that thereafter he asked the complainant to call on the mobile number on which he had made a call earlier at PS Vigilance. He denied that he had provided another mobile number to the complainant at Sarita Vihar Metro Station which was not attended by that person.
99. PW19 in his cross-examination by ld. Counsel for the accused stated that he did not know whether the mobile phone of the complainant was on speaker mode whenever he spoke with the suspect officials. However, he volunteered that CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 84 of 125 the conversation was audible to him. He also affirmed that he was not aware that the caller on the other side were in fact Ct. Dinesh or Ct. Shivraj. He denied that no telephonic conversation took place between the complainant on one side and accused persons on the other side.
100. It is relevant to note that as per the CDR of the complainant Ex. PW4A/A (colly), a call was received on the mobile phone of the complainant (9311818181) on 26.09.2016 at 01:35 pm from the mobile number of Ct. Dinesh (9013142142) and the said call lasted for 67 seconds. Thereafter, a call was made by the complainant on the mobile number of Ct. Shivraj (9136267214) at 01:40 pm and it lasted for 59 seconds. Then a call was made by the complainant on the mobile number of Ct. Dinesh at 01:52 pm which lasted for 11 seconds.
101. As discussed herein-above, the complainant PW5 has stated that he was asked by the Vigilance officials and on their asking he made three calls on the numbers as told to him by them. However, the aforesaid call details records (CDRs) revealed that at 01:35 pm a call was in fact received on the mobile number of the complainant from the mobile number of accused Dinesh, and since that call was received from accused Dinesh, the said call could not have been made by the complainant at the instance of Vigilance Officials, as deposed by the complainant. Moreover, no explanation is forthcoming from CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 85 of 125 accused Dinesh regarding the said call made by him to the complainant.
102. As discussed herein-above, the Call Details Records (CDRs) of the complainant indicates that a call was received on the mobile phone of the complainant from Ct. Dinesh at 01:35 pm and lasted for 67 seconds and thereafter a call was made by the complainant to Ct. Shivraj at 01:40 pm which lasted for 59 seconds and another call was then made by the complainant to Ct. Dinesh at 01:52 pm which lasted for 11 seconds. The sequence of calls as indicated in the CDRs corroborate the version of PW6 panch witness and Raid Officer PW19, who both deposed that a call of Ct. Dinesh was received on the mobile phone of the complainant and thereafter telephonic conversation took place between the complainant and Ct. Shivraj. The CDRs of the complainant therefore corroborate the version of PW6 and PW19 regarding the call received from accused Ct. Dinesh and then a call between the complainant and Ct. Shivraj and belie the version of the complainant PW5 that he had made three calls, while going to the spot, at the instance of Vigilance officials.
103. As regards the contents of the conversation that took place between Ct. Dinesh, the complainant and Ct. Shivraj during the aforesaid calls, PW6 and PW19 deposed that Ct. Shivraj told the complainant that he was at the airport and he asked the complainant to hand over the bribe amount to Ct. Dinesh in front CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 86 of 125 of DCP Office, Sarita Vihar. Both also deposed about the complainant speaking to Ct. Dinesh on the way, who asked the complainant to meet him as Ct. Shivraj was at the airport.
104. Ld. Counsel for the accused persons has argued that since the conversations that took place between the complainant and accused persons were not heard by PW6 or PW19 themselves, therefore, the said alleged conversations being hearsay cannot be relied upon by the prosecution.
105. It may be noted that both PW6 and PW19 as well as the complainant have deposed regarding calls being made when the raiding team was going to the spot and the contents of the calls as discussed herein-above. As per the testimony of PW6 and PW19 Raid Officer, the said conversations took place between the complainant and the accused persons in their presence. The raid officer PW19 stated that the conversations were audible to him. PW6 stated that he came to know about the identity of the caller on the other side from the complainant and the conversations were not heard by him personally. However, he stated that he gave the narration as told to him by the complainant when they were going for the raid and also denied suggestion to the contrary.
106. Hence, the raid officer PW19 stated that he had CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 87 of 125 himself heard the conversations between the accused persons and the complainant. The panch witness PW6 stated that the narration of the conversation was given to him by the complainant. Upon examination of evidence of Panch Witness PW6 it is manifest that the narration of the conversations were given to him by the complainant when those conversations took place and hence, there was no occasion for any concoction or improvement at that time. Immediately after having the conversations with the accused persons, the same were narrated by the complainant and heard by PW6 and PW19 and they stated that Ct. Dinesh called the complainant and told him that Ct. Shivraj was not available and asked him to meet in front of DCP Office, Sarita Vihar and Ct. Shivraj told the complainant that he was at the airport and to hand over the bribe amount to Ct. Dinesh, near DCP Office, Sarita Vihar.
107. In order to examine the relevancy of the contents of the aforesaid telephonic conversations that took place between the complainant and the accused persons, and told to Panch Witness PW6 and RO PW19, it would be relevant to examine the principal of law embodied in Section 6 of Indian Evidence Act i.e. the rule of doctrine of res gestae. In Dhal Singh Dewangan vs. State Chatisgarh, AIR 2016 SC 4745, the Hon'ble Supreme Court observed as follows :
"21. The general rule of evidence is that hearsay evidence is not admissible. However, Section 6 of the Evidence Act embodies a principle, usually CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 88 of 125 known as the rule of res gestae in English Law, as an exception to hearsay rule. The rationale behind this Section is the spontaneity and immediacy of the statement in question which rules out any time for concoction. For a statement to be admissible under Section 6, it must be contemporaneous with the acts which constitute the offence or at least immediately thereafter. The key expressions in the Section are "...so connected... as to form part of the same transaction". The statements must be almost contemporaneous as ruled in the case of Krishan Kumar Malik (Supra) and there must be no interval between the criminal act and the recording or making of the statement in question as found in Gentela Vijayvardhan Rao's case (Supra). In the latter case, it was accepted that the words sought to be proved by hearsay, if not absolutely contemporary with the action or event, at least should be so clearly associated with it that they are part of such action or event. This requirement is apparent from the first illustration below Section 6 which states .... "whatever was said or done.... at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."
108. The doctrine of res gestae as embodied in Section 6 of Indian Evidence Act would be applicable to the said conversations. Section 6 of Indian Evidence Act is reproduced as under :
"6. Relevancy of facts forming part of same transaction.
Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or at different times and places."
109. Accordingly, Section 6 of Indian Evidence Act which incorporates the doctrine of res-gestae makes admissible CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 89 of 125 hearsay evidence if a fact which, though not in issue, is so connected with the fact in issue "As to form part of the same transaction" and is contemporaneous with the acts and there was no time for any fabrication, becomes relevant by itself. The doctrine of res gestae is an exception to the general rule that hearsay evidence is not admissible. The rationale behind making the said statements admissible under Section 6 of Indian Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the transaction.
110. In the present case, the narration of the aforesaid conversation of the complainant with accused persons on mobile phone, on way to the spot, was given contemporaneously by the complainant to the panch witness PW6 and the Raid Officer PW19, who were accompanying him in the same vehicle, upon receiving the calls and there was no room of fabrication and hence the said narration forming part of the same transaction immediately after speaking to the accused persons, would not fall in the category of hearsay evidence and thus the deposition of PW6 and PW19 as regards the account given by the complainant to them about the aforesaid conversations between the complainant and the accused persons, would be admissible.
111. Accordingly, the calls between the complainant and the accused persons stand corroborated by the CDRs of the complainant and the accused persons. The complainant turned CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 90 of 125 hostile and the contents of the conversations that took place between the complainant and the accused persons are proved by the testimony of PW6 and PW19. In the said conversations the complainant was given instructions to hand over the bribe amount to Ct. Dinesh near DCP Office, Sarita Vihar, as Ct. Shivraj was at the airport. The said conversations also establish a conspiracy between Ct. Dinesh and Ct. Shivraj to obtain bribe money from the complainant and in furtherance of that object, the complainant was asked to hand over the bribe money to Ct. Dinesh near DCP Office, Sarita Vihar.
112. As regards demand at the spot, it is deposed by the complainant PW5 that when he alongwith the Vigilance police officials reached outside the DCP office, South-East, two traffic police officials were managing traffic and the Vigilance officials caught one of them and the other traffic police official fled away from there.
113. Panch Witness PW6 however deposed that he alongwith the complainant alighted from the vehicle before the red light and they crossed the road and reached where Ct. Dinesh, who was in traffic police uniform, met them. PW6 stated that he had a helmet in his hand and Ct. Dinesh enquired from the complainant about him and the complainant told Ct. Dinesh that he was known to him. After some conversation Ct. Dinesh asked the complainant to give the money "Paise De Jo Lekar Aaya Hai"
and thereupon the complainant took out the GC notes from his pocket and handed them over to Ct. Dinesh who after accepting CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 91 of 125 them with his right hand put them in the right side pocket of his wearing pant.
114. In his cross-examination by ld. Addl.P.P. for the State, PW6 affirmed that accused Dinesh had stated to the complainant that "Paise Lekar Aaya Hai, Laa De".
115. It is contended by ld. Counsel for the accused that no specific demand of Rs. 1500/- was made from the complainant by Ct. Dinesh. It is also contended that the panch witness PW6 has given two different narrations regarding the alleged demand at the spot and in his examination-in-chief, he stated that accused Dinesh asked the complainant to give money by saying "Paise De Jo Lekar Aaya Hai", whereas in his cross- examination by Ld. Addl.P.P. for the State, he affirmed that accused Dinesh had stated "Paise Lekar Aaya Hai, Laa De". It is urged that since there are two different versions, the assertion regarding demand by accused Dinesh at the spot is not proved on record.
116. In this regard, it would be relevant to consider that it is natural for a witness of reasonable intelligence to not remember the exact details of the conversation, even though the crux of the conversation may remain in memory. It may be noted that the incident took place in the year 2016 and the testimony of the panch witness was recorded in the year 2023 and hence long time had elapsed between the date of incident and recording of testimony. The Hon'ble Supreme Court in Shahaja alias CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 92 of 125 Shahajan Ismail Mohd. Shaikh Vs State of Maharashtra, Criminal Appeal No. 739 of 2017, Decided on July 14, 2022 has observed that a serious view cannot be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness).
117. In the present case, the version of the panch witness in his examination-in-chief "Paise De Jo Lekar Aaya Hai" and his version in cross-examination by ld. Counsel for the accused "Paise Lekar Aaya Hai, Laa De" essentially imply the same meaning i.e. telling the complainant to give the money that was brought by him and thereby implying demand of money by the accused. Minor variations in the narration of the version of PW6 in his examination-in-chief and cross-examination by ld. Addl.P.P. for the State cannot be given undue emphasis in as much as the import of both the versions is essentially the same.
118. It is contended by ld. Counsel for the accused that the aforesaid statement even otherwise would not amount to demand of bribe by the accused at the spot and in that context he has placed reliance upon the judgment of Mukhtiar Singh vs. State of Punjab, 2017(3) RCR (Crl.) 694 SC. It is urged by ld. Counsel for the accused that in that case a trap was laid and on that day the complainant entered the room of the accused on which the accused asked him whether he had brought the money at which the complainant handed over currency notes of Rs. 2000/- to the accused. It is stated that in that case the Hon'ble CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 93 of 125 Supreme Court observed that it did not amount to a demand and set aside the conviction. It may however be noted that in that case the Hon'ble Supreme Court in para 25 made the following observations :
"25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs. 3,000/- which had been paid or of Rs. 2,000/- as made on the day of trap operation is wholly inadequate to comply with the pre-requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs. 3,000/- at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs. 3,000/- as well as the demand of Rs. 2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be constituent of the offence under Section 7 or 13 of the Act."
119. From the aforesaid it is manifest that in Mukhtiar case (Supra) the purported demand was not preceded by a demand as enjoined under section 7/13 of the PC Act. It was a bald uncorroborated statement of the complainant without any particulars which was held to be inadequate to constitute CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 94 of 125 demand. However, in the present case the specifics of demand have been proved through the complaint and the direct evidence of the panch witness as well as the telephonic conversations between the complainant and the accused persons in the presence of PW6 and PW19. Accordingly, the facts of that case are clearly distinguishable from the facts of the present case.
120. As regards acceptance, it is deposed by the panch witness PW6 that after some conversation Ct. Dinesh asked the complainant to give the money and thereupon the complainant took out the GC notes from his pocket and handed over the same to Ct. Dinesh, who after accepting the same with his right hand, put them in the right side pocket of his wearing pant. At this, PW6 raised his hand as the pre-determined signal and the raiding team members reached there and apprehended Ct. Dinesh. PW6 correctly identified accused Dinesh present before the court.
121. It is manifest from the testimony of panch witness PW6 that he has supported the prosecution version regarding the events that transpired during the raid proceedings and recovery of bribe money from the accused Dinesh and taking of right hand wash and right pocket wash of the pant of accused Dinesh at the spot. The panch witness PW6 has corroborated the testimony of the Raid Officer PW19 regarding acceptance of bribe amount of Rs. 1500/- by accused Dinesh. PW6 deposed that accused Dinesh accepted the bribe amount from the complainant in his presence with his right hand and kept it in the right side pocket of his pant. The said amount was also recovered at the spot from right pocket CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 95 of 125 of wearing pant of accused Dinesh by the panch witness PW6. PW6 and PW19 also deposed that the serial number of the recovered GC notes Ex. P-1 and P-2 from accused Dinesh were compared with the serial numbers mentioned in the pre-raid report Ex. PW5/F and found to be correct and were seized by the RO vide seizure memo Ex. PW5/C. PW6 also deposed that the right hand-wash of accused Dinesh was taken and the solution turned pink. He also deposed that the left hand-wash of accused Dinesh was also taken but it did not turn pink as he had accepted the GC notes with his right hand and kept them in the right side pocket of his wearing pant. The right pocket wash of the wearing pant of the accused Dinesh was also taken and it also turned pink. The right hand-wash and right pocket wash of wearing pant were transferred into two glass bottles each and they were sealed. The complainant and the panch witness have identified their signatures on the sealed glass bottles containing the right hand- wash and pant right pocket-wash and the glass bottles are Ex. P-3 to P-6. They have also identified their signatures on the seizure memo of hand-wash and pant-wash as Ex. PW5/D. The FSL result Ex. PW11/A indicated presence of Phenolphthalein and Sodium Carbonate in the right hand wash and right pocket wash of pant of accused Dinesh.
122. PW6 also stated that the pocket of the wearing pant of the accused Ct. Dinesh was dried and his signatures as well as signatures of the complainant were taken on the pocket of the pant of accused. The pant was kept in a sealed pullanda. He identified his signatures on the seizure memo of pant Ex. PW5/E CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 96 of 125 as well as on the inner lining of the right side pocket of the pant. The blue colour pant is Ex. P-7. The complainant identified his signatures on the seizure memo of the pant Ex. PW5/E and the sealed cloth pullanda of the pant.
123. It may be noted that the complainant in the present case turned hostile and as regards handing over of GC notes to the Vigilance officials, he stated that the Vigilance officials had asked him to handover powder treated notes i.e. Rs. 1500/- which were with him. He told them that those notes got mixed up with other notes, which he had in his wearing pant pocket. The Vigilance officials took one note of Rs.1000/- and another note of Rs. 500/- denomination from the said notes and they were kept in an envelope. Thereafter he was asked to sign some blank papers and some written papers and some paper slips were affixed on glass bottles containing white solution and he was asked to leave Vigilance office. The complainant also failed to identify the accused Dinesh as the person, who was apprehended at the spot. Hence, the complainant was completely hostile regarding the raid proceedings.
124. Pertinently, the complainant stated that he had handed over Rs. 1500/- to the Vigilance officials i.e. one GC note of Rs. 1000/- denomination and another GC note of Rs. 500/- denomination. He also stated that powder was applied on those GC notes by the Vigilance officials and they were handed over by the Vigilance officials to him. Hence, the complainant did not deny that he had handed over Rs. 1500/- to the Vigilance CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 97 of 125 officials and that the said notes were handed over to him after applying powder on those GC notes. The GC notes were recovered from accused Dinesh at the spot and the right hand- wash and right pocket-wash of pant of the accused Dinesh turned pink. The complainant has sought to mislead by stating that the powder smeared GC notes got mixed up with other notes in his pocket, however, one cannot loose site of the fact that the GC notes recovered from the accused Dinesh were smeared with Phenolphthalein powder as is revealed in the FSL result Ex. PW11/A and the complainant has also stated that the notes handed over by him to the Vigilance officials were smeared by them with Phenolphthalein powder. As per PW6, the serial number of the GC notes recovered from accused Dinesh at the spot was same as the serial numbers of the GC notes mentioned in the raid report Ex. PW5/F.
125. The complainant, who was a hostile witness, did not identify accused Dinesh as the person, who was apprehended at the spot by the Vigilance officials and stated that that person was not present in the court, even during his cross-examination by ld. Addl.P.P. for the State. However, the panch witness PW6 and the raid officer PW19 as well as ASI Mahavir Prasad PW20, who were part of the raiding team, correctly identified accused Dinesh before the court.
126. It may be noted that the raid proceedings were duly narrated and corroborated by the testimony of PW6 panch witness, PW19 Raid Officer and PW20 ASI Mahavir Prasad, CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 98 of 125 who were present at the time of raid proceedings. Nothing is revealed in the testimony of PW6 to conclude that he had deposed at the instance of the Vigilance Officials. The testimony of panch witness PW6 is a natural version of the events and does not appear to be tutored. In fact the raid proceedings have been described in detail in the testimony of the panch witness PW6 and the Raid Office PW19 and their testimonies are consistent and there is no major contradiction in their testimonies to make them unworthy of reliance. Additionally, there is no reason to disbelieve the testimony of the raid officer PW19 and PW20 ASI Mahavir Prasad. Hence, their testimonies including identification of the accused Dinesh before the court, merits acceptance.
127. It is contended by ld. Counsel for the accused that even though the raid officer has stated that the raiding team consisted of HC Narender, HC Sunil, Ct. Mahavir and Ct. Rajender, however, he has not cited HC Narender, HC Sunil and Ct. Rajender as witnesses nor their signatures were obtained on any document as they were not a part of the raiding party.
128. Even the complainant PW5 has stated that he was taken to Sarita Vihar Metro Station by the Vigilance officials alongwith 3-4 other police officials. Hence, the fact that the signatures of the said officials were not obtained on any documents does not indicate that they were not present in as much as even the complainant, who did not support the prosecution version regarding the raid, has stated that there were CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 99 of 125 3-4 police officials who went alongwith them at the spot. The departure entry of the raiding team was recorded vide DD No. 23B Ex. PW1/E mentions the names of the above-said Vigilance officials, who were part of the raiding team, alongwith panch witness Anish Ahmad, complainant Manoj Kumar, who went in two official vehicles bearing registration nos. DL-1CJ-5549 and DL-1CJ-4543. Accordingly, the contention of ld. Counsel for the accused that the above-named police officials were not part of raid proceedings is untenable.
129. Accordingly, panch witness PW6 was a witness to the entire raid proceedings and he also saw accused Dinesh accepting Rs. 1500/- from the complainant. The demand of bribe from the complainant by the accused persons and acceptance of Rs. 1,500/- from the complainant in presence of panch witness thus stands established on record.
Defence of the accused
130. Accused Dinesh has also taken the defence in his statement recorded under Section 313 Cr.P.C. that he had never met the complainant prior to 26.09.2016. On 26.09.2016, he was on duty at Apollo Hospital red light alongwith ASI Ramhet. One person whose name he later came to know as Manoj Kumar came to them and started talking with ASI Ramhet and him. Few persons in civil dress reached there and apprehended him. ASI Ramhet ran away from there. Accused Dinesh also stated that he was immediately taken to PS Vigilance and falsely implicated in the present case. He had never demanded any money from any CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 100 of 125 Deepak or any Manoj Kumar for any purpose nor was he aware about plying of the RTV enroute Apollo red light. Apollo red light is busiest red light being Apollo Hospital intersection and entry and exit points for PS Sarita Vihar/DCP Office and various ACP officers due to official movement. The traffic police officials are deployed on red light to manage smooth movement only. He had never demanded any money from said Manoj Kumar nor accepted any money on 26.09.2016. It was not his duty to book the vehicle for any traffic violation being a Constable.
131. It is stated by the accused persons in their statements recorded under Section 313 Cr.P.C. that it was not their duty to book vehicles for traffic challans. It is argued by ld. Counsel for the accused persons that the accused persons were Constables in Delhi Police and they did not have the power to issue challan and hence, they did not have any capacity to give any favour to the complainant. It is stated that the raid office PW19 and IO PW21 in their cross-examination admitted that traffic constables are not authorized to book a vehicle for traffic violations.
132. In this regard, perusal of testimony of the IO/PW21 reveals that he has deposed in his cross-examination that he had conducted an enquiry regarding capacity of accused persons to favour or disfavour the complainant, however, he did not record any specific statement of a witness in this regard. He further stated that the Traffic Constables were not authorized to book a vehicle for traffic violation and he volunteered that they assist the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 101 of 125 senior officers in booking a vehicle for traffic violation. He denied the suggestion that an official of the rank of Traffic Constable could not favour or dis-favour driver/owner of any vehicle plying as per/in contravention of the rules. PW21 affirmed that the charge-sheet did not mention about any enquiry conducted regarding such capacity of accused persons. From the testimony of PW21 it thus emerges that though the Traffic Constables were not authorized to book a vehicle for traffic violation, however, they used to assist the senior officials in that respect.
133. In any event, in light of explanation (d) to Section 7 of the PC Act, once it is proved that there was actual demand and acceptance of gratification by the accused persons, the question as to whether the accused persons were in a position to actually challan the vehicle of the complainant or not, becomes immaterial.
134. The Hon'ble Delhi High Court in Shekhar Kumar v State of NCT of Delhi 2021 SCC OnLine Del 4223 : (2021) 226 AIC 517 made the following observations in relation to explanation (d) to Section 7 of PC Act:
7. A perusal of the aforesaid Section and the appended Explanations (d) and (e) would show that to constitute an offence thereunder, it is enough if a public servant receives illegal grat-
ification as a motive for rendering service by holding out that he would render assistance whether or not he is capable of doing it.
8. The issue involved in the present case also arose before the Supreme Court in relation to CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 102 of 125 the offence punishable under Section 161 IPC (repealed by the PC Act) in Mahesh Prasad v.
State of Uttar Pradesh reported as AIR 1955 SC 70. The Supreme Court while negating the contention observed that to constitute an of- fence under the aforesaid Section, it is enough if the public servant who receives the money takes it by holding out that he will render as-
sistance to the giver with any other public ser- vant and the giver gives the money under that belief. The receiver of the money may not be in a position to render such assistance. He may not even have intended to do what he holds himself out as capable of doing. He may ac-
cordingly be guilty of cheating. Nonetheless he is guilty of the offence punishable under Section 161 IPC. Later, these observations were reiterated by the Supreme Court in Chaturdas Bhagwandas Patel v. State of Gu-
jarat reported as (1976) 3 SCC 46 as under:--
"21. ....It is further immaterial if the public ser- vant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of do- ing. This is clear from the last Explanation ap- pended to Section 161, according to which, a person who receives a gratification as a motive for doing what he does not intend to do, as a reward for doing what he has not done, comes within the purview of the words "a motive or reward for doing." The point is further clari- fied by Illustration (c) under this Section...."
"22. Indeed, when a public servant, being a po- lice officer, is charged under Section 161 Pe- nal Code and it is alleged that the illegal grati- fication was taken by him for doing or procur- ing an official act, the question whether there was any offence against the giver of the grati- fication which the accused could have investi- gated or not, is not material for that purpose. If he has used his official position to extract ille- gal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the Court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or disfavour." (em- phasis supplied) CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 103 of 125
135. In Girwar Singh v CBI 2016 SCC OnLine Del 2329 : (2016) 5 RCR (Cri) 757 the Hon'ble Delhi High Court ob- served as under:
"139. Therefore, I find no merit in the submis- sion of the learned senior counsel that the file was not in possession of the appellants. PW-11 clearly deposed that the file pertained to Audit No. 10 and that Audit no. 10 comprised of the appellants in the present case. Even if the ap- pellants were not in a position to help the com- plainant, it is meaningless since explanation
(d) to Section 7 of the Act provides that : "(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression." (emphasis supplied)
136. Accordingly, the contention of the ld. Counsel for the accused that the accused persons being Constables were not in the position to issue traffic challans for violations and hence, they were not in a position to give or not to give any favour to the complainant, is misconceived in view of explanation (d) to Section 7 of the Act. Moreover, it is not as if the accused persons had no role to play and in fact they used to assist the senior officials in issuing of challans.
137. It may be noted that from the defence taken by accused Dinesh in his statement recorded under Section 313 Cr.P.C. it is manifest that he was present at the spot, even though the complainant has not identified him before the court. Hence, his identification before the court by the panch witness PW6, CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 104 of 125 Raid Officer PW19 and PW20 ASI Mahavir Prasad stands fortified through the aforesaid defence taken by accused Dinesh, who stated that he had not seen the complainant before 26.09.2016 and stated that on 26.09.2016 when he was on duty at Apollo Hospital red light one person, whose name he later came to know as Manoj Kumar, came and started talking with them and subsequently few persons in civil dress, came there and apprehended him.
138. It is also contended by ld. Counsel for accused Dinesh that post-raid proceedings were not conducted at the spot. It is urged that as per the raiding officer PW19, the post raid report was written by him after apprehension of accused Dinesh at about 2.00 pm and it took about 1-1¼ hours to make the post raid report and prepare the rukka and the IO reached the spot at about 05.00 pm, thereby meaning that till 05.00 pm PW19 was present at the spot with the raiding party when IO reached there at 05.00 pm. The accused has also led evidence of DW3 Insp. Mahesh Kumar, who lodged DD No. 17 on 26.09.2016 Ex. PW9/A-5. DW3 stated that he had telephonically informed the DO of Sukhdev Vihar Circle at about 03.00 pm regarding absence of ASI Ramhet and Ct. Dinesh at the place of their duty i.e. Apollo Hospital red light, Mathura Road, regarding which DD No. 17 Ex. PW9/A-5 was lodged on 26.09.2016 at 03.00 pm. Their mobile numbers were also found switched off. He stated that the Apollo Hospital Red Light was a busy area and he had taken a round of the said red light area while checking for both the officials. He also stated that the campus of PS Sarita Vihar, CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 105 of 125 DCP South-East Office, and other offices are situated near the red light and hence, there is regular movement of officials and official vehicles on the said red-light. In his cross-examination by ld. Chief P.P. for the State, he stated that he remained at the red- light point for about 15-20 minutes. He further stated that the area allotted to them was approximately 1 km. He took a round of that area before lodging the DD entry.
139. Accordingly, as per the testimony of DW3 upon finding accused Dinesh absent from Apollo Hospital red light, he took a round of that area and lodged DD No. 17 at 03.00 pm. It may be noted that the raid took place at the gate of DCP South- East office, Sarita Vihar, Delhi. As per the site plan Ex. PW5/L, the DCP South East Office gate was located inside the service road and not on the main road where the Apollo Hospital red light was situated. It is deposed by PW19 Raid Officer in his cross-examination that the post-raid proceedings were conducted by him 15-20 steps away from the main gate of DCP Office towards Faridabad side in the service lane. He further stated that the wash proceedings were conducted by him at a distance of 5-6 paces away from the spot of apprehension of Ct. Dinesh and it was near the main gate of DCP Office, Sarita Vihar, and officials were passing through that gate. It may be noted that a person searching for the Traffic Officials is likely to look around the main road for a missing official. Moreover, even as per DW3 there was movement of many official vehicles and officials in the area as the DCP South-East office was situated there. No question has been put to DW3 to ascertain if he had also CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 106 of 125 specifically checked in the service lane near DCP Office for the presence of accused Dinesh. Moreover, since the DCP office was situated there, the presence of police officials would be considered routine. Hence, if the raid proceedings were being conducted near the gate of DCP office, the same may go unnoticed unless a careful look is given. Ld. Counsel for the accused has also referred to the testimony of IO/PW21, who stated that no Traffic Incharge namely Mahesh Kasana came to the spot till the time he remained there. Since it is not stated by DW3 that he had also checked at the gate of DCP office for accused Dinesh, therefore, it cannot be assumed that he had actually gone there and therefore the fact that the IO could not tell if DW3 had visited the spot, is not material. Hence, merely because accused Dinesh was found absent at his duty point at 03.00 pm by DW3, it cannot be assumed that post raid proceedings were not conducted at the spot.
140. The accused has also examined DW1 who proved the Cell ID location chart Ex. DW1/B to prove that the location of the complainant on 26.09.2016 at about 12.15 pm and at about 06.04 pm, 06.05 pm and 60.7 pm was at telephone exchange, Connaught Place, near Super Bazar, Delhi, stating that PS Vigilance is also situated about 50-100 meters away. It is urged that the IO made an arrival entry at PS Vigilance at 08.00 pm vide DD No. 8, and since the location of the complainant was near PS Vigilance around 06.00 pm also, therefore, it cannot be stated that the complainant and Raiding party reached at P.S. Vigilance Branch at 08.00 pm and they had reached P.S. CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 107 of 125 Vigilance much before 08.00 pm and all the proceedings after apprehension of accused Dinesh were conducted at P.S. Vigilance only.
141. In this regard, it may be noted that the Raid Officer PW19 stated that he left the spot after the post raid proceedings and handing over of the exhibits and the accused to the IO. He stated that the IO reached at the spot at around 5.00 pm. PW21 IO/ACP Kailash Chand deposed that he reached the spot at about 04.45 pm where he met the RO and the raiding party alongwith the complainant and the panch witness. The case property was handed over to him and the accused was produced before him. He prepared the site plan Ex. PW5/L. PW21 put the FIR No. on the seizure memos and the pullandas prepared by the IO. Thereafter they returned alongwith the accused to PS Vigilance. In his cross-examination PW21 stated that he left the spot at about 05.45-06.00 pm and it took about 30-45 minutes in reaching PS Vigilance from the spot and he stated that the complainant returned with him to PS Vigilance from the spot. The presence of the complainant is shown near PS Vigilance around 06.04 pm. The IO also stated that he did not lodge his arrival entry immediately upon his arrival at PS Vigilance on 26.09.2016 i.e. DD No. 8A and the same was lodged after detailed interrogation of the accused. The arrest memo of the accused Ex. PW5/G also reflects the time of arrest at 07.50 pm and the place of arrest is indicated as PS Vigilance, Barakhamba Road, New Delhi. Hence, the contention of ld. Counsel for the accused that since DD No. 8A was lodged at 08.00 pm and the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 108 of 125 complainant was present around P.S. Vigilance at 06.04 pm indicates that all the post raid proceedings were conducted at P.S. Vigilance, is without any substance. In this regard, the observation of the Hon'ble supreme Court in Shahaja case (Supra) may also be noted wherein the Hon'ble Supreme Court observed that as regards the exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters. It depends on the time-sense of individuals which varies from person to person. Be that as it may, there is no major discrepancy in the time lines indicated in the testimony of the Raid Officer and the IO and the presence of the complainant near Vigilance office at 06.04 pm is sufficiently explained and does not lead to a conclusion that all the post raid proceedings were vitiated.
142. It is argued by ld. Counsel for the accused that as per the prosecution version the complainant made a call at help- line number 1064 of Vigilance Branch from the mobile number of one Amit. It is stated that the record of the said call was not produced by the prosecution despite the fact that the IO/PW21 has deposed that the calls made on help-line no. 1064 may be automatically recorded. The prosecution has examined PW4, who proved the CAF of mobile no. 9911292178 which was issued in the name of Amit Kumar Gupta. In this regard the complainant PW5 denied the suggestion that he had made a call on 22.09.2016 from mobile no. 9911292178 of one Amit. PW5 CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 109 of 125 volunteered that he had made a call on the help-line number 1064 from his mobile no. 9311818181. DW7 Amit Kumar Gupta was examined by accused Dinesh, who stated that he had made a call on help-line no. 1064 from his mobile no. 9911292178 in September 2016 with regard to a quarrel with his neighbour. Moreover, DW2 brought the help-line call register of 1064 pertaining to the year 2016-2017 as per which no call was made on 1064 on 22.09.2016. In these circumstances, the fact that a call was made on 22.09.2016 on the help-line no. 1064 by the complainant PW5 from the mobile number of Amit Kumar Gupta regarding demand of bribe by the accused persons is not proved on record.
143. It is also contended by ld. Counsel for the accused persons that ASI Ramhet, who was on duty at Apollo Hospital Red Light alongwith accused Dinesh and Shivraj on 26.09.2016 as per the Duty Roster, has not been examined as a witness even though he was present at the spot at the time of raid and therefore adverse inference should be drawn against the prosecution for not examining him as a witness. In this regard, it may be noted that PW21 IO/ACP Kailash Chand in his cross-examination stated that he had interrogated ASI Ramhet during investigation after serving him notice u/s 160 Cr.P.C. Ex. PW21/DC, however, his statement was not recorded as it was not found relevant to the present case. He denied the suggestion that he did not record his statement intentionally as he was speaking against the prosecution story. However, it is noteworthy that ASI Ramhet was not examined as a defence witness even by the accused to CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 110 of 125 prove that the story of the prosecution was concocted.
144. It is argued by ld. Counsel for accused Shivraj that he never met the complainant. In his statement recorded u/s 313 Cr.P.C. accused Shivraj further stated that on 25.09.2016, he was on weekly off and on 26.09.2016, he was on leave. He stated that there had been no telephonic conversation as alleged between the complainant and him as well as Ct. Dinesh and him. He was not even present at the spot. Neither he had demanded any bribe nor had he asked the same to be handed over to anybody. He had always performed his duties diligently.
145. It is thus contended by ld. Counsel for accused Shivraj that accused Shivraj was not present at the spot and no recovery has been effected from him. Since he was on leave on the date of raid proceedings i.e. 26.09.2016, therefore, the offence under Section 7 of P.C.Act and its essential ingredients of demand and acceptance cannot be attributed to him.
146. Even as per the prosecution version, Ct. Shivraj was on leave on 26.09.2016 and the prosecution has placed on record the leave application of Ct. Shivraj Ex. PW9/A3 seeking leave on 26.09.2016. As per the Rojnamcha dated 26.09.2016, the accused Shivraj proceeded to one day CL on 26.09.2016 at 11.50 am Ex. PW9/A5. Hence, it is an admitted fact that accused Ct. Shivraj was on leave on 26.09.2016.
147. However, as discussed hereinabove, as per CAF of CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 111 of 125 mobile no. 9136267214 Ex. PW14/A, the said mobile number was issued in the name of Shivraj s/o Mandu Ram i.e. accused Ct. Shivraj. The CDR between the period between 15.09.2016 to 26.09.2016 of the said mobile number are Ex. PW14/B. The calls between the complainant and accused Shivraj stand corroborated by the CDRs of the complainant and accused Shivraj. The complainant turned hostile and the contents of the conversations that took place between the complainant and the accused Shivraj and Dinesh on 26.09.2016 while going for raid, are proved by the testimony of PW6 and PW19. In the said conversations the complainant was given instructions by Ct. Shivraj and Ct. Dinesh to hand over the bribe amount to Ct. Dinesh near DCP Office, Sarita Vihar, as Ct. Shivraj was at the airport. As per the CDRs placed on record, a call was received on the mobile phone of the complainant from Ct. Dinesh on 26.09.2016 at 01.35 pm and immediately thereafter a call was made by the complainant to Ct. Shivraj at 01.40 pm. The contents of the conversations between the complainant and Ct. Dinesh and conversations between the complainant and Ct. Shivraj establish a conspiracy between Ct. Dinesh and Ct. Shivraj to obtain bribe money from the complainant and in furtherance of that object, the complainant was asked by them to hand over the bribe money to Ct. Dinesh near DCP Office, Sarita Vihar.
148. It is settled law that the most important ingredient of the office of criminal conspiracy is an agreement between two or more persons to do an illegal act. To prove the offence of conspiracy, some kind of physical manifestation of the agreement CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 112 of 125 is required to be established. The express agreement need not be proved. Such an agreement must be proved through direct or circumstantial evidence. In the decision of State of Kerala v. P.Sugathan and Anr., 2000 (8) SCC 203, the Hon'ble Supreme Court noted that an agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation:
"12. ...As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. ...A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy...
13. ...The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..." (emphasis supplied)
149. In Sajeev vs. State of Kerala, 2023 SCC Online SC 1470, the Hon'ble Supreme Court noted the ingredients of the offence of criminal conspiracy and made the following observations :
"After consideration of these depositions, we must decide whether the evidence on record is sufficient to establish a conspiracy under Section 120B, IPC. The ingredients to constitute a criminal conspiracy were summarised by this Court in State through Superintendent of Police v. Nalini & Ors.6 (3-Judge Bench). They are as follows:CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 113 of 125
i. Conspiracy is when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means.
ii. The offence of criminal conspiracy is an exception to the general law, where intent alone does not constitute crime. It is the intention to commit a crime and join hands with persons having the same intention. iii. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
iv. Where in pursuance of the agreement, the conspirators commit offenses individually or adopt illegal means to do a legal act that has a nexus to the object of the conspiracy, all of them will be liable for such offenses even if some of them have not actively participated in the commission of those offenses.
36. These principles were followed in Yakub Abdul Razak Memon v. State of Maharashtra7 (2-Judge Bench), wherein this Court reiterated that to establish conspiracy it is necessary to establish an agreement between the parties. Further, the offence of criminal conspiracy is of joint responsibility, all conspirators are liable for the acts of each of the crimes which have been committed as a result of the conspiracy. [See also:
Arvind Singh v. State of Maharashtra8 (3-Judge Bench); Mohd. Naushad (supra)]"
150. Hence, it is settled law that criminal conspiracy is hatched in secrecy for which direct evidence is normally not forthcoming. Conspiracy can be proved by way of adducing circumstantial evidence or by way of necessary implication. Applying these principles to the present case it is demonstrated on record through the CDRs of the complainant and accused persons and the testimony of PW6 and PW19 that when the complainant alongwith the raiding party was going to Apollo Hospital red light, he had telephonic conversation with accused CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 114 of 125 Ct. Dinesh and Ct. Shivraj, who told him to hand over the bribe amount to Ct. Dinesh as Ct. Shivraj was not present there and for the said purpose the complainant was asked to meet Ct. Dinesh near DCP Office, Sarita Vihar.
151. It may be noted that as per duty roster Ex.PW7/A1 to Ex.PW7/A-24, from 03.09.2016 to 26.09.2016 Ct. Dinesh and Ct. Shivraj were deployed at Apollo Red Light, South East District and during the deployment period, both of them performed duty at Apollo Red Light on 05.09.2016, 20.09.2016 and from 22.09.2016 to 24.09.2016. It is also proved on record that on 26.09.2016 the complainant spoke to Ct. Shivraj on his mobile phone at about 10.39 am for about 67 seconds. The said call is also mentioned in the complaint and as per the complaint Ex. PW5/B, Rs. 1500/- were demanded from the complainant in lieu of running his vehicles, by Ct. Shivraj and Ct. Dinesh. Moreover, the CDRs of accused Ct. Shivraj indicate that the complainant and Ct. Shivraj were in constant contact with each other and had spoken to each other on 22.09.2016 and 23.09.2016. In these circumstances, the prosecution has been able to prove the involvement of Ct. Shivraj in the conspiracy to obtain bribe/illegal gratification of Rs. 500/- for plying each RTV owned by the complainant on the route from Nehru Place to Madanpur Khadar.
152. In Om Prakash v CBI decided on 05.09.2017, the Hon'ble Delhi High Court discussed the law on how to prove the existence of conspiracy and if the the acts of one member of the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 115 of 125 conspiracy could be attributed to others, who shared a common intention by placing reliance upon section 10 of the Indian Evidence Act. The Hon'ble High Court discussed the law as settled by the Hon'ble Supreme Court on this point and made the following observations in this regard:
4.3. Apex Court in the decision reported as (2004) 11 SCC 585 Esher Singh v. State of A.P., reiterating the principle laid down in (1980) 2 SCC 665 V.C. Shukla v.
State (Delhi Admn.) with respect to onus on the prosecution to prove the alleged conspiracy held:
"38. It was held that the expression "in reference to their common intention" in Section 10 is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is a relevant fact only "... 'as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it'. ... In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co- conspirator and not in his favour." (AIR p.
687, para 8) We are aware of the fact that direct independent evidence of criminal conspiracy may not ordinarily and is generally not available CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 116 of 125 and its existence invariably is a matter of inference except as rare exceptions. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. This Court in V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665 : 1980 SCC (Cri) 561] held that to prove criminal conspiracy there must be evidence, direct or circumstantial, to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied on for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy."
4.4. Explaining the theory of agency as envisaged under Section 10 of the Indian Evidence Act, 1872 applicable to the law of conspiracy Supreme Court in the decision reported as (2001) 1 SCC 378 Saju v. State of Kerala, observed:
"8. In a criminal case the onus lies on the prosecution to prove affirmatively that the accused was directly and personally connected with the acts or omissions attributable to the crime committed by him. It is a settled position CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 117 of 125 of law that act or action of one of the accused cannot be used as evidence against another. However, an exception has been carved out under Section 10 of the Evidence Act in the case of conspiracy. To attract the applicability of Section 10 of the Evidence Act, the court must have reasonable ground to believe that two or more persons had conspired together for committing an offence. It is only then that the evidence of action or statement made by one of the accused could be used as evidence against the other. This Court in Kehar Singh v. State (Delhi Admn.) [(1988) 3 SCC 609 : 1988 SCC (Cri) 711 : AIR 1988 SC 1883] has held: (SCC pp. 649-51, para 45) "Section 120-A provides for the definition of criminal conspiracy and it speaks of that when two or more persons agree to do or cause to be done an act which is an illegal act and Section 120-B provides for the punishment for a criminal conspiracy and it is interesting to note that in order to prove a conspiracy it has always been felt that it was not easy to get direct evidence. It appears that considering this experience about the proof of conspiracy that Section 10 of the Indian Evidence Act was enacted.
Section 10 reads:
'10. Things said or done by conspirator in reference to common design.--Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.' This section mainly could be divided into two: the first part talks of where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, and it is only when this condition CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 118 of 125 precedent is satisfied that the subsequent part of the section comes into operation and it is material to note that this part of the section talks of reasonable grounds to believe that two or more persons have conspired together and this evidently has reference to Section 120-A where it is provided 'when two or more persons agree to do, or cause to be done'. This further has been safeguarded by providing a proviso that no agreement except an agreement to commit an offence shall amount to criminal conspiracy. It will be therefore necessary that a prima facie case of conspiracy has to be established for application of Section 10. The second part of section talks of anything said, done or written by any one of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is relevant fact against each of the persons believed to be so conspiring as well for the purpose for proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It is clear that this second part permits the use of evidence which otherwise could not be used against the accused person. It is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Section 10 in cases of conspiracy. The second part operates only when the first part of the section is clearly established i.e. there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Section 120-A. It is only then the evidence of action or statements made by one of the accused could be used as evidence against the other. In Sardar Sardul Singh Caveeshar v. State of Maharashtra [AIR 1965 SC 682 : (1964) 2 SCR 378 : (1965) 1 Cri LJ 608 sub nom Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra] Subba Rao, J. (as he then was) analysed the provision of Section 10 and made the following observations: (SCR pp. 389-91) 'This section, as the opening words indicate, will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 119 of 125 wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. The evidentiary value of the said acts limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. The expression "in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law;
with the result, anything said, done or written by a co- conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Another important limitation implicit in the language is indicated by the expressed scope of its relevancy. Anything so said, done or written is a relevant fact only "as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it". It can only be used for the purpose of proving the existence of the conspiracy or that the other person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to the conspiracy. In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; (5) it can only be used against a co- conspirator and not in his favour.' "CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 120 of 125
153. The Hon'ble Delhi high Court in Om Prakash case (supra) discussed the law as propounded by the Hon'ble Supreme Court in this regard and culled out the following principles:
4.6. From the decisions noted above, the following principles can be culled out to be applied while fastening the liability of an accused with the aid of Section 120B IPC:
a) The prosecution has to lead prima facie evidence to show that there is a reasonable ground for the Court to believe that two or more persons are members of a conspiracy.
b) The onus lie on the prosecution to prove affirmatively either by direct or circumstantial evidence that the accused was connected with the acts or omissions attributable to the crime committed.
c) The foundational fact of a prima facie involvement of the accused having been established showing meeting of minds between the accused to commit the offence, then Section 10 of the Evidence Act is attracted, whereby anything said, done or written by any one of them in reference to their common intention will be evidence against the other.
154. Accordingly, in view of section 10 of Indian Evidence Act, once there are reasonable grounds for existence of a conspiracy between two or more persons, then anything said, done or written by any one of them in reference to their common intention will be evidence against the other.
155. In the present case, in view of the discussion herein-above, the prosecution has been able to show on the basis of evidence led that there is a reasonable ground for the Court to believe that accused Ct. Dinesh and Ct. Shivraj were members of CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 121 of 125 a conspiracy to demand illegal gratification of Rs. 1500/- (i.e. Rs. 500/- per RTV) from the complainant in lieu of allowing him/his driver to ply his vehicles on the route from Nehru Place to Madanpur Khadar. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to their common intention, after the said intention was entertained is relevant against the other accused.
156. As the foundational fact of a prima facie involvement of the accused persons has been established showing meeting of minds between them to commit the offence to obtain illegal gratification for allowing the complainant/his driver to ply his vehicles on the route from Nehru Place to Madanpur Khadar, then section 10 of the Evidence Act is attracted, and hence anything said, done or written by any one of the accused person in reference to their common intention will be evidence against the other.
157. It is thus proved on record that in reference to their conspiracy, the demand of illegal gratification was made on behalf of accused Ct. Shivraj also, by accused Ct. Dinesh at the spot from the complainant and accused Ct. Dinesh accepted the said amount on behalf of accused Ct. Shivraj also. Hence, the act of demand of money and acceptance of Rs. 1500/- by accused Ct. Dinesh in reference to the conspiracy shall also be read against accused Ct. Shivraj by virtue of section 10 Indian Evidence Act.
158. In the present case, even though the complainant CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 122 of 125 has turned hostile, however, the complaint of the complainant Ex. PW5/B stands proved on record. In facts and circumstances of the present case the prosecution has established the foundational facts through the said complaint Ex. PW5/B alongwith the testimony of panch witness PW6 and Raid Officer PW19 as well as the CDRs of the complainant and the accused persons proved the existence of conspiracy between accused Ct. Shivraj and Ct. Dinesh to demand illegal gratification of Rs. 1500/- i.e. Rs. 500/- for each RTV from the complainant. The illegal gratification was accepted by Ct. Dinesh at the spot in furtherance of the said conspiracy and the acceptance of the illegal gratification stands corroborated by the testimony of panch witness PW6 and the Raid Officer PW19 as well as the FSL result Ex. PW11/A. There is no reason to disbelieve their testimony.
159. Hence, upon careful analysis of the evidence on record and the events that followed in quick succession, it transpires that accused Ct. Shivraj and Ct. Dinesh conspired to obtain illegal gratification from PW5 for allowing the complainant/his driver to ply his vehicles on the route from Nehru Place to Madanpur Khadar and in reference to the said conspiracy accused Ct. Dinesh demanded the bribe amount from the complainant PW5 at the spot and accepted illegal gratification of Rs. 1500/- from the complainant.
160. In facts and circumstances of the present case the prosecution as discussed has been able to established the CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 123 of 125 foundational facts, hence, presumption under section 20 of the PC Act is attracted in the present case. The accused persons have failed to prove the defence taken by them. In view of the discussion hereinabove, in the instant case, the accused persons have failed to rebut the said presumption, thus, there is no reason to disbelieve the prosecution case.
161. In view of the aforesaid discussion, the prosecution has proved beyond reasonable doubt that accused Dinesh and Shivraj conspired to obtain gratification other than legal remuneration of Rs. 1500/- i.e. Rs. 500/- per RTV, from the complainant Manoj Kumar for allowing the complainant to ply his vehicles on the route from Nehru Place to Madanpur Khadar and thus accused Dinesh and Shivraj are held guilty and are hereby convicted for the offence of conspiracy punishable under Section 120-B IPC.
162. In view of the aforesaid discussion, it is also proved on record that in pursuance to the abovesaid conspiracy, accused Dinesh and Shivraj, being public servants, demanded gratification other than legal remuneration of an amount of Rs. 1500/- from the complainant Manoj Kumar allowing the complainant to ply his vehicles i.e. RTVs on the route from Nehru Place to Madanpur Khadar and Ct. Dinesh accepted the said amount i.e. Rs. 1500/- (one GC note of the denomination of Rs. 1000/- and another GC note of the denomination of Rs. 500/-) at the spot from the complainant, also on behalf of accused Shivraj in pursuance of a conspiracy between them, which was CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 124 of 125 gratification other than legal remuneration, as a motive or reward for forbearing to do an official act and thereby accused Dinesh and Shivraj are held guilty and convicted for the offence under Section 7 of PC Act read with Section 120B IPC.
163. It is also proved on record that accused Dinesh and Shivraj, both being public servants, demanded an amount Rs. 1500/- and Ct. Dinesh accepted the said amount at the spot as illegal gratification from the complainant, also on behalf of accused Shivraj in pursuance of a conspiracy between them and the said amount of Rs.1500/- was recovered from accused Dinesh, hence, by virtue of Section 10 of Indian Evidence Act, the said facts will also be read against accused Shivraj and therefore accused Dinesh and Shivraj obtained pecuniary advantage for themselves and hence they are held guilty for the offence of criminal misconduct under Section 13(1)(d) of Prevention Corruption Act read with Section 120B IPC, punishable under Section 13(2) of Prevention Corruption Act and they are accordingly convicted for the said offence.
Digitally signed by DEEPALI DEEPALI SHARMA SHARMA Date: 2025.04.29 Announced in the open court 16:01:57 +0530 on 29th April, 2025 ( Deepali Sharma ) Special Judge (PC Act) (ACB-01) Rouse Avenue Court Complex New Delhi CC No. 15/2022 FIR No. 06/2016, PS Vigilance State vs. Dinesh Kumar & Another Page 125 of 125