Delhi District Court
State vs . 1. Vichitra Kumar S/O Sh. Sobeer Singh on 31 May, 2017
IN THE COURT OF MS. POONAM CHAUDHRY, SPECIAL
JUDGE07 (CENTRAL), (PC ACT CASES OF ACB, GNCTD),
DELHI
CC NO.07/15 (532294/16)
STATE VS. 1. Vichitra Kumar S/o Sh. Sobeer Singh
R/o Village, Mubarak Pur, Post Mawana
District Meerut, U. P.
2. Digvijay Singh S/o Sh. Mahender Singh
R/o F324, Gali No.6 West Karawal Nagar
Delhi.
FIR NO. : 36/2014
U/S : Section 7/8/13(1)(d) Prevention of
Corruption Act, 1988
P.S. : Anti Corruption Branch, Delhi
Date of Institution 07.04.2015
Judgment reserved on 22.05.2017
Judgment delivered on 31.05.2017
JUDGMENT
1.The case of the prosecution in brief is that accused Vichitra Kumar (hereinafter referred to as 'A1') who was working as traffic constable demanded bribe/illegal gratification of Rs.600/ from complainant Raj Kumar for allowing him to ply his vehicles C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 1 unauthorizedly. It is also the case of prosecution that A1 accepted bribe/illegal gratification of Rs.600/ through tea vendor coaccused Digvijay Singh (hereinafter referred to as 'A2') at the spot/tea kiosk near 51/2 pusta Khajuri to Shastri Park Road.
2. It is also the case of prosecution that A1 and A2 hatched a criminal conspiracy and in pursuance of the criminal conspiracy A2 accepted illegal gratification of Rs.600/ (Rupees Six Hundred) from complainant Raj Kumar for allowing him to ply his vehicles unauthorizedly.
3. According to the prosecution, a written complaint was lodged with ACB by the complainant/Raj Kumar PW5 as he was not inclined to pay the illegal gratification as demanded and sought action against A1. After receiving the complaint, the investigating agency initiated proceedings for laying a trap. In the preraid proceedings the currency notes of Rs.600/ (Rupees Six Hundred) in the denomination of Rs.500/ and Rs.100/ brought by the complainant were treated with phenolphthalein powder. The numbers of the currency notes were noted in the preraid proceedings. The significance of the sodium carbonate C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 2 test was explained to all the members of the team. The details of the trap were also explained to all. The treated currency notes were given to the complainant. The plan was thereafter put into execution and on receiving a signal to trap the accused PW 12/RO rushed to the spot and at the instance of RO the panch witness/PW11 recovered the currency notes from A2 who had accepted the same at the instance of A1. According to the prosecution sodium carbonate test was conducted on the right hand of A2 which gave positive result and both accused were arrested.
4. Charge sheet was filed against both the accused after completion of the investigation and obtaining sanction for prosecution against A1, cognizance of the alleged offences was taken against both the accused and they were summoned. Charges were framed against A1 for the offences punishable under section 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'of the PC Act') and section 120B of Indian Penal Code (in short 'IPC') and against A2 for the offences punishable under section C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 3 8 of the PC Act read with section 120B IPC. Both the accused pleaded not guilty and claimed trial.
5. Prosecution examined 17 witnesses to bring home the guilt of accused persons.
6. PW1 ASI Krishan Kumar is the duty officer who proved the FIR Ex. PW1/A. He also proved the endorsement on the rukka Ex. PW1/B. He further stated that DD No.33 Ex. PW1/C was lodged regarding the recording of FIR.
7. PW2 Raj Kumar Jha stated that on 19.09.2014 he was posted at DCP, Traffic Headquarter, Delhi and he proved the sanctioned order of prosecution of A1 Ex. PW2/A.
8. PW3 Sh. Shishir Malhotra, Aircel Ltd. Delhi stated that the letter was received from ACB for providing details of mobile No.9716872828 which was in the name of Raj Kumar S/o Sh. Radhey Shyam. He accordingly gave his reply Ex. PW3/A along with call details of above number Ex. PW3/B. He further stated that the certificate under section 65B 4(c) of the Evidence Act was Ex. PW3/C. He further testified that the photocopy of customer application form (in short 'CAF') along with ID proof C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 4 in respect of above number was Ex. PW3/D. The cell ID chart was Ex. PW3/E.
9. PW4 HC Satish Kumar stated that on 23.05.2014 he was posted as MHCM at PS Civil Lines and on the said date RO/ PW12 Inspector B. K. Singh handed over to him two sealed pullanda of bottles and GC notes in the denomination of Rs.500/ and Rs.100/ and sample seal. He stated that he made entries in this regard in register No.19 which were Ex. PW4/A. PW4 further stated that Inspector B. K. Singh/RO/PW12 also handed over to him personal search of accused. He further stated that on 13.04.2017 the pullanda RHWI and sample seal were sent to FSL Rohini through Ct. Dinesh and entries in this regard was Ex. PW4/B. PW4 further stated that on 31.07.2014 the exhibits RHWI and FSL result were received.
10. PW5 Raj Kumar is the complainant.
11. PW6 HC Dinesh Kumar corroborated of the version of PW4 regarding depositing of exhibits at FSL Rohini and further stated that till the case property remained in his possession, it was not tampered with.
C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 5
12. PW7 Ct. Anand stated that on 26.08.2014 he was posted at Khajuri Khas Traffic Circle and on that day he handed over a copy of DD No.612 and duty roster dated 23.05.2014 to the IO/PW15.
13. PW8 Sh. Naveen Virodia stated that on 24.05.2014, he was posted as LDC at Directorate of Employment, Pusa Road, New Delhi and was deputed as panch witness in ACB. He further stated that both accused were interrogated in his presence and their disclsoure statements Ex. PW8/A and Ex. PW8/B were recorded in his presence.
14. PW9 Dr. Lingaraj Sahoo Senior Scientific Officer, FSL proved FSL report Ex. PW9/A.
15. PW10 Raj Kumar Sharma Wireless Services, MTNL, he deposed that as per record the customer application form of mobile No.9968451676 was in the name of one Vichitra Kumar. The customer application form and ID proof were proved as Ex. PW10/A (colly.)
16. PW11 Sh. Rajnish Kumar Gautam is the panch witness.
17. PW12 Inspector B. K. Singh C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 6
18. PW13 Ct. Ramesh Kumar
19. PW14 HC Narayanan
20. PW15 Inspector Dalip Singh is the investigating officer.
21. PW16 Sh. Mukesh Kumar, UDC, Directorate of Employment, Pusa Road, New Delhi proved duty roster Ex. PW16/A.
22. PW17 Sh. Mange Ram, LDC Department of Industries, Patpar Ganj, New Delhi proved duty register Ex. PW17/A.
23. The prosecution thereafter closed its evidence.
24. The statements of both the accused were thereafter recorded under section 313 of Code of Criminal Procedure (in short 'Cr. P. C'). A1 denied all the allegations of prosecution witnesses and stated that he was innocent. A1 on being asked whether he had anything else to say stated as under: "I have been wrongly arrested in this case. I am innocent. I had not demanded money from anybody for any purpose. On the date of incident, I was on my duty and I was called near to tea shop through telephonic call at about 4.41 pm and when I reached the tea shop, I was lifted by some people in civil dress along with tea vendor and were taken to Anti C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 7 Corruption Branch. I have been falsely arrested in this case."
25. A2 also denied the allegations of the prosecution witnesses and on being asked whether he had anything else to say in his defence, stated as under: "I have been wrongly arrested in this case. I am innocent. I have not received any money from anybody on behalf of any police personnel. I was lifted from my shop by some people in civil dress. I have been falsely implicated in this case. The hand washes were planted upon me."
26. A1 examined one witness in his defence. DW1 ACP Jagdish Prasad who stated that on 01.12.2015 he was posted as Traffic Inspector, Shahdara Circle and was the inquiry officer of departmental inquiry conducted against A1. DW1 further deposed that statement Ex. PW11/DA was recorded in his presence and bears his signatures. He further stated that the charged official Vichitra Kumar and his defence assistant were present at the time of recording of the statement Ex. PW11/DA.
27. The A1 thereafter closed his defence evidence, A2 did not lead evidence in defence.
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28. In so far as, the offence under section 7 of the PC Act is concerned, the law is well settled that demand of illegal gratification is sine qua non to constitute an offence and mere recovery of currency notes is not sufficient. The prosecution had to prove beyond reasonable doubt that accused voluntarily accepted the money knowing it to be the bribe.
29. The question for consideration thus is whether A1 had demanded any amount as gratification to show any official favour and whether the said amount was paid by the complainant and received by A2 at the instance of A1 as consideration for showing an official favour.
30. Sections 7 and 13 (1)(d) of PC Act under which A1 has been charged are as under : Section 7 "Public servant taking gratification other than legal remuneration in respect of an official act. "Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 9 or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine."
"Section 13 Criminal misconduct by a public servant -
(1) A public servant is said to commit the offence of criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 10 with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or
(d) if he
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
31. Section 8 of the PC Act under which A2 has been charged is as under: "Section 8. Taking gratification, in order, by corrupt or illegal means, to influence public servant. - Whoever accepts or obtains, or C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 11 agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine."
32. Both accused have been charged under section 120B IPC. The definition of criminal conspiracy in section 120A IPC is as follows: "120A. Definition of criminal conspiracy. - When two or more persons agree to do, or cause to be done, -
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 12 agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation. - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
33. Section 120B IPC provides punishment for criminal conspiracy and provides as under :
"Whoever is a party to a criminal conspiracy to commit an offence punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."
34. The definition of public servant under section 21 of Indian Penal Code is as under: "21" Public Servant - The words "public servant" denote a person falling under any of the description hereinafter falling namely: Twelfth Every person(a) in the service or pay of the government or remuneration by fees or commission for the performance of any public duty by the Government;
C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 13
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Sec. 617 of the Companies Act, 1956".
35. Section 2(c) of the PC Act defines public servant as follows:
2. (c) public servant" means.
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial of State Act, or any authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of anybody of persons, any adjudicatory functions;
(v) any person authroised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 14 public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electro l roll or to conduct an election or part of an election;
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other officebearer of a registered co operative society engaged in agriculture, industry, trade or banking or a State Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government company as defined in Section 617 of the Companies Act, 1956 ( 1 of 1956);
(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such commission or Board;
(xi) any person who is a ViceChancellor or member of any governing body, professor, reader, lecturer or any other reacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
(xii) any person who is an officebearer or an C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 15 employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.
Explanation 1. Persons falling under any of the above subclauses are public servants, whether appointed by the Government or not. Explanation 2. Whether the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in right to hold that situation.
36. As regards the burden of proof casts on the prosecution in a criminal case, it has been held in Banarsi Dass Vs. State of Haryana (2010) 4 SCC 450, as under: "It is settled canon of criminal jurisprudence that conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in this regard."
37. The crucial question thus is whether A1 had abused his C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 16 position as a public servant by corrupt or illegal means to 'obtain' for himself or any other person any valuable thing or pecuniary advantage. As long as there was no ulterior motive, the courts will not question the act of the public servant. The public servant indulging in such illegal act had to take responsibility of the consequences. It is now to be seen whether both accused acted in concert and A2 accepted the bribe at the instance of A1.
38. "Criminal conspiracy" is not easy to prove. The conspirators invariably deliberate, plan and act in secrecy over a period of time. It is not necessary that each one of them must have actively participated in the commission of the offence or be involved in it from the start to finish. What is important is that they were involved in the conspiracy. Conspiracy requires actus reus and accompanying mens rea. To convict a person for conspiracy, the prosecution must show that accused agreed with each others to accomplish the unlawful object of conspiracy. The Court has to be satisfied that there is a reasonable ground to C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 17 believe the existence of the conspiracy and that is a matter for judicial inference from proved facts and circumstances.
39. In order to bring home the charge of conspiracy and for the purpose of drawing inferences under section 10 of the Evidence Act, the prosecution had to establish beyond reasonable doubt that accused acted in concert, either through overt or covert acts in furtherance of the common objective. Section 10 of the Indian Evidence Act introduces the doctrine of agency and if the conditions laid down there are satisfied, the act done by one is admissible against the coconspirators. Section 10 of the Indian Evidence Act is as under :
"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 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."C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 18
40. (1) Thus, there should be prima facie evidence disclosing reasonable grounds for court to believe that two or more persons were members of a conspiracy., (2) Anything said, done or written by anyone of them in reference to the common intention would be evidence against the other., (3) Anything said, done or written by anyone of them should have been said, done written by them after the intention was formed by anyone of them. The prosecution thus had to prove by chain of events which could lead to strong inference of conspiracy. Conspiracy can be inferred either on the basis of direct or circumstantial evidence. Though direct evidence of conspiracy is difficult in most cases, the circumstances proved should reasonably point to existence of prior concert of mind.
41. As regards proof of conspiracy it has been held in (1995) 1 SC Cases 142 titled as P. K. Narayanan Vs State of Kerala as under : "A Penal Code, 1860 Ss. 120A and 120B Criminal conspiracy - Ingredients and Proof of
- Motive and preparation by themselves to not constitute conspiracy - Criminal conspiracy C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 19 can be proved by direct or circumstantial evidence - Circumstances must establish that the offence was committed in pursuance of an agreement between parties to the alleged conspiracy - Such circumstances must be incapable of any other explanation - Mere suspicious and surmises or inferences unsupported by cogent evidence not sufficient".
42. It is well settled that in a criminal trial the burden of proving the charges against accused lies on prosecution and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon prosecution, in certain offences the burden of proof of a particular fact lies on the accused. The burden on the accused is not so onerous as on the prosecution and can be discharged by proof of balance of preponderance. Thus, the nature and extent of burden cast upon accused is well settled. Thus, the onus never shifts from the prosecution even in case in which presumption under section 20 of the PC Act is permissible to be invoked.
43. Section 20 of the PC Act provides that a legal presumption can be drawn after demand and acceptance of illegal gratification. Section 20 of the PC Act is as under: C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 20 "Section 20. Presumption where public servant accepts gratification other than legal remuneration. - (1) Where, in any trial of an offence punishable under section 7 or Section 11 or clause (a) or clause (b) of subsection (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other persons, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub sections (1) and (2), the court may decline to C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 21 draw the presumption referred to in either of the said subsections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn."
44. The foremost contention of Ld. counsel for accused was that the prosecution had failed to prove the factum of demand. It was contended that the complaint Ex.PW5/A was silent about the date, time and place of initial demand by A1 and neither IO nor RO made enquiry in this regard from the complainant. It was further contended that it was incumbent upon the prosecution to prove both the demands i.e initial demand and demand at the spot.
45. It was next contended by Ld. counsel that according to the prosecution there was a demand of Rs.600/ (Rupees Six Hundred) by A1 from the complainant in lieu of allowing him to ply his vehicles unauthorizedly from Khajuri Khas Pusta Road, Delhi. A1 was also charged for having demanded and accepted illegal gratification of Rs.600/ (Rupees Six Hundred) through A 2 in discharge of his official duty by abuse of his position as a public servant. According to the prosecution, A1 was at the C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 22 relevant time was posted in Delhi Traffic Police at Khajuri Traffic Circle. The complainant was the owner of a travel agency M/s Jai Shri Balaji. The vehicles of complainant used to ply through Pusta Road. A1 had also threatened the complainant in case he did not pay the same, his vehicle would be impounded. As the complainant was not inclined to pay the bribe amount, he approached ACB and lodged a complaint Ex. PW5/A. The complainant had met Inspector B. K. Singh/RO in ACB and narrated the entire facts to him.
46. As per the version of prosecution, RO after verifying the facts alleged in the complaint from the complainant directed the complainant to bring the bribe money and also enquired from him the name of A1 and as to when he would be on duty at Pusta Road. RO had joined a panch witness/PW11 as an independent witness and the contents of complaint were read over to him/PW11.
47. Ld. counsel for accused persons submitted that complainant did not support the case of prosecution and was declared hostile. The complainant disowned his complaint Ex. PW5/A and C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 23 statements under section 161 Cr. P. C Mark A, B and C.
48. Thus, the initial demand of bribe by A1 which led the filing of the complaint was not proved. Ld. Addl. PP had countered the said arguments and submitted that the complainant had himself gone to ACB to lodge his complaint Ex. PW5/A and had named A1 in the complaint which by itself is sufficient proof of initial demand for illegal gratification made by A1.
49. Ld. Addl. PP contended that the correctness of allegations in the complaint could not be doubted for the reason there was nothing on record to suggest any motive on the part of the complainant to lodge a false complaint against A1.
50. Ld. Addl. PP further contended that the complainant in his crossexamination by State stated that the complaint Ex. PW5/A bears his signatures. Panch witness PW11 stated in his cross examination by Ld. Addl. PP, that complainant had written the complaint in his presence in ACB. It is to be noted that no suggestion was given to PW11 in his crossexamination in this regard.
51. Ld. Addl. PP contended that PW11 had stated that his C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 24 statement was recorded in the departmental inquiry proceedings against A1 which is Ex. PW11/DA, he stated before the Enquiry Officer that the name of traffic police official was Vichitra Kumar. However, Ld. counsel for accused submitted that panch witness was confronted with his statement Ex. PW11/DA where name of A1 was not mentioned.
52. The prosecution primarily relied upon the testimony of complainant/PW5 and panch witness/PW11 to establish the charge against the accused. The complainant deposed in his examinationinchief that he was the owner of a travel agency under the name and style M/s Jai Shree Balaji. Complainant further deposed that he used to ply his private vehicle bearing registration No.DL 8CH 5265 inside Delhi and it often used to pass through Pushta Road. He further stated that one traffic constable demanded monthly bribe of Rs.600/ (Rupees Six Hundred) from him and threatened that in case he did not pay bribe money, his vehicle would be impounded. Complainant further stated that he had lodged a complaint in ACB as he was not inclined to pay bribe. Complainant further stated that he had C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 25 told RO/PW12 the name of constable who demanded bribe from him was Neeraj. Complainant further testified that he went to ACB with 6 currency notes of denomination of Rs.100/ each and told the RO the name of the said constable who demanded the bribe from him was Neeraj.
53. The complainant also stated that a plan was laid to trap accused and he and panch witness along with trap team left ACB in two vehicles and reached spot at about 3.30 pm. PW5 further stated that the vehicles were parked at a Khoka near the tea stall. Thereafter RO asked him to search for Ct. Neeraj and to see whether Neeraj present at the spot. PW5 further stated that RO told him to give signal in case Ct. Neeraj was present at the spot. PW5 further stated that he waited for 15 minutes with panch witness for Ct. Neeraj but he could not find him and informed the RO about the same. As per directions of RO, he made a call to Ct. Neeraj from the mobile phone of RO and informed him (Ct. Neeraj) that he had reached the spot with money. However, Ct. Neeraj told him that he was somewhere else and told him to give the money to a boy sitting at the tea stall. PW5 further stated C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 26 that thereafter he went to teastall and enquired about the person known to Ct. Neeraj and a boy told him "Ki Main Neeraj Ka Janene Wala Hu". The complainant further stated that he gave the GC notes to the said boy in the presence of panch witness.
54. The panch witness then gave the prearranged signal to the trap team. The raiding team immediately reached the spot where Ct. Neeraj was not present but two other traffic police personnel were present and RO apprehended both of them. RO also apprehended a boy to whom he had given the GC notes. The complainant further stated that out of 2 police officials one was present and correctly identified A1. The complainant also identified A2. PW5 further stated that the boy who accepted the bribe amount from him was not present in the court.
55. As the complainant/PW5 resiled from his previous statement, he was declared hostile and crossexamined by Ld. Addl. PP with the leave of the court, with reference to his earlier statement. In his crossexamination by Ld. Addl. PP, he stated that his statement was not recorded by the officials of ACB. The statements of complainant under section 161 Cr. P. C Mark A, B, C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 27 C and D dated 23.05.2014, 04.06.2014, 26.08.2014, and 27.11.2014 were shown to him but he denied having made such statements before the police. Complainant further stated that he did not mention the name of A1 in his complaint as the traffic constable who demanded bribe from him, he confronted with his statement from portion A to A on Ex.PW5/A where it was so recorded. PW5 further deposed that he did not state in his statement under section 161 Cr. P. C Mark A that traffic police official Vichitra Kumar (A1) was demanding Rs.600/ (Rupees Six Hundred) as monthly and threatening him to impound his vehicle, he was again confronted with his statement Mark A wherein it is so recorded.
56. Ld. counsel for accused contended that complainant in his crossexamination by Ld. Addl. PP denied that he stated before the police that A1 told him to give the bribe money to the tea vendor (A2) and on his instructions he handed over the same to A2 who accepted the same. Ld. counsel for accused further submitted that the complainant further stated that A1 had not demanded any money from him nor A2 accepted the money at C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 28 the instance of A1 and he handed over money to a boy aged about 1718 years. The complainant also stated that he did not know who wrote the complaint Ex. PW5/A. Ld. counsel for accused contended that law is well settled that existence of complaint is not a proof of demand and in this regard placed reliance on Roshan Lal Saini Vs CBI 2011 (1) JCC 102 wherein it has been held as under: "Filing of complaint with CBI by the complainant cannot be taken as a substitute for the evidence of proof of allegations -
Prosecution required to prove the allegation made in the complaint by convincing evidence."
57. Ld. counsel for accused further contended that nothing could be elicited in the crossexamination of complainant by Ld. Addl. PP which could be of any help to the prosecution. The alleged recovery of currency notes from A2 at the instance of A1 without proof of demand was not sufficient to bring home the guilt of accused under section 7 and 13(1)(d) of the PC Act. It was further alleged that A1 could not be convicted on the basis of evidence of a shadow witness as no evidence was brought on C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 29 record to prove the demand.
58. Ld. counsel further contended that as regards demand at the spot, panch witness/PW11 stated in his examinationinchief that after they had reach the spot i.e main road Pusta near Khajuri Khas at about 4 or 4.14 pm he along with complainant sat on the bench which was about 810 steps from the spot. Thereafter a traffic policeman in uniform came on motorcycle to the tea stall and sat with the complainant. The complainant and the traffic policeman spoke to each other for about 23 minutes. The complainant then took out treated GC notes of Rs.600/ (in the denomination of Rs.500/ and 100/) from the left side of his shirt pocket and offered the same to the policeman stating Jo Apne Paise Maange The, Vo Yeh Lejiye. A1 told the complainant to give the money to A2, who accepted the same with his right hand, A2 was an aged person. A1 then proceeded to his motorcycle. The site plan was prepared at the spot.
59. Ld. Addl. PP submitted that the evidence of panch witness reveals that complainant gave the money to A2 at the instance of A1. The panch witness had correctly identified both the accused. C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 30 Thus, there was voluntary and conscious acceptance of money and there was no further burden cast on the prosecution to prove the demand by direct evidence and in this regard placed reliance on B. Noha Vs State of Kerala & Anr. Crl. Appeal No.1122/2006 decided on 06.11.2006 wherein it has been held as follows: "The evidence shows that when PW1 told the accused that he had brought the money as directed by the accused, the accused asked PW 1 to take cut and give the same to him. When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. It was held by this court in Madhukar Bhaskarrao Joshi Vs State of Maharashtra 2000 (8) SCC 571 as follows: "The premises 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 C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 31 the factual premises 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 or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
This decision was followed by this court in M. Narsinga Rao Vs State of A. P 2001 (1) SCC 691, there is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW1. It was held in the decision in State of A. P Vs. Kommaraju Gopala Krishna Murthy 2000 (9) SCC 752, that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused."
60. On the other hand, Ld. counsel for accused further submitted that there were contradictions in the version of complainant and panch witness regarding the person who accepted the bribe. As per the version of the complainant the money was given to a boy aged about 18 years on the asking Ct. Neeraj whereas the panch C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 32 witness stated that the money was accepted by an aged person, and correctly identified by A2 as the person who accepted money, at the instance of A1. Ld. counsel further submitted that apart from the panch witness no other witness had stated that bribe was accepted by A2 at the instance of A1. Ld.Addl. PP contended that panch witness further stated that the number of recovered currency notes tallied with the numbers mentioned in the preraid report and were found to match and also stated that hand wash of right hand of A2 which was taken in colourless solution turned pink. Thus the fact that money was accepted by A2 stood corroborated by the hand wash of A2 taken in 2 bottles RHWI and RHWII. Ld.Addl. PP also submitted that the panch witness stated that labels on the bottles bear his signatures. The bottles RHWI and RHWII were seized vide seizure memo Ex. PW5/D which was the most crucial evidence to prove acceptance of gratification by A2.
61. Ld. counsel for accused further contended that as regard the demand, panch witness stated in his crossexamination on behalf of accused that A1 did not make specific demand Rs.600/ C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 33 (Rupees Six Hundred) from the complainant in his presence.
62. As both complainant and panch witness had resiled from their previous statements they were cross examined by Ld.Addl. PP. A hostile witness has been described as one who is not desirous of telling the truth. The purpose of cross examination of witness by a party calling him is to elicit admissions of fact which would help building the case of cross examiner. Thus, when a party with the leave of court confronts his witness with his previous inconsistent statement he does so in the hope that the witness might revert to what he has stated previously. In this regard, it has been held in Sat Paul Vs Delhi Administration 1976 I SC 727 in a criminal prosecution when a witness is crossexamined and contradicted with the leave of the court by a party calling him, his evidence cannot as a matter of law be treated washed off altogether. It is for the court to consider in each case whether as a result of crossexamination and contradictions, whether the witness could still be believed with regard to part of his testimony. In my view the testimony of complainant could not be believed as his testimony stood C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 34 altogether discredited. The version of panch witness could be relied upon as regards recovery alone and not demand. Thus, in my view prosecution failed to prove the demand by A1 beyond reasonable doubt.
63. The other material on record is the recovery of tainted money notes from A1. As regards the recovery, the case of the prosecution is that on the instructions of A1 the complainant handed over bribe money to A2. The bribe money was recovered from the possession of A2 and seized and hand wash of A2 was taken. The complainant correctly identified A2 but stated that he was not the person who had accepted the money.
64. Ld. counsel for accused submitted that mere recovery of currency notes from the possession of accused cannot constitute an offence under section 7 of the PC Act but the prosecution had further duty to prove that what was recovered was illegal gratification and was voluntarily accepted at the instance of A1 by A2 knowing it to be bribe.
65. In support of the above submissions reliance was placed on M. R Purushottam Vs State of Karnataka 2014 (2) RCR C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 35 wherein it has been held as under: "Prevention of Corruption Act, 1988, sections 13(1)(d), 13(2) and 7 - Corruption case against accused - Demand not proved - Accused acquitted held : (I) Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under section 13(1)(d) of the Act.
On facts - Allegations that accused demanded Rs.500/ from complainant for supply of certain documents - Complainant lodged a report with police - A raid was laid and Rs.500/ recovered from possession of accused
- Complainant turned hostile - He disowned the contents of complaint - No evidence was brought to prove demand - Conviction of accused set aside - Accused could not be convicted on the basis of shadow witness. 2014(2) RCR (Crl.) 410 ; 2014(2) Recent judgment (Raj) 570 relied."
66. Reliance was also placed on N. Sunkanna Vs State of Andhra Pradesh 2015 Crl. LJ 4972 wherein it has been held as under: "Prevention of Corruption Act (49 of 1988) Ss.7, 13(1)(d), 20 - Illegal gratification - Proof of demand - Essential - Accused alleged to have demanded and accepted bribe of Rs.300/ from complainant and a fair price shop dealer C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 36 by threatening to seize stocks and foist a false case against him - Complainant himself had disowned his complaint and has turned hostile
- There is no other evidence to prove that the accused had made any demand - Mere possession and recovery of currency notes from accused without proof of demand would not constitute offence under section 7 - Unless there is proof of demand of illegal gratification proof of acceptance will not follow - Legal presumption under S.20 hence cannot be drawn - Accused acquitted."
67. Thus as held by Hon'ble Supreme Court in the above Judgments, mere recovery of currency notes from A2 without demand having been established is not sufficient to constitute the offence u/s.7 of the Act. The same will also not be sufficient to bring home the offence u/s.13(1)(d) in the absence of proof of demand. Thus, the use of corrupt or illegal means or abuse of position as a public servant by A1 to obtain valuable thing or pecuniary advantage cannot be held to have been established. The acceptance of bribe by A2 at the instance of A1 are also not established.
68. The next contention of Ld. counsel for accused was that presumption under section 20 of the Act can be drawn only u/s. 7 C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 37 of the PC Act when the prosecution succeeded in proving with direct evidence that the accused had accepted or obtained gratification and it was not enough that some currency notes were handed over to A2 at the instance of A1 to show the acceptance of illegal gratification. It was alleged that it is only on proof of acceptance that presumption could be drawn u/s.20 of the PC Act. The proof of acceptance could follow only after proof of demand. Thus, as demand was not proved presumption could not be drawn u/s.20.
69. Ld. counsel further submitted that the testimony of PW13 who had joined the raiding party and had taken rukka to PS for registration of FIR was not reliable as he stated in his cross examination that he could not remember whether IO had recorded his statement and he could not tell whether MarkDX was his statement recorded by IO, although IO deposed that he had correctly recorded the statement of PW13. It was further contended that in the statement of PW13 under section 161 Cr.P.C. MarkDX, the name of complainant was mentioned as Raju Singh. It was further contended that IO had tried to fill up C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 38 the lacuna in the case of prosecution by stating that there was typographical error in the statement MarkDX whereas no application was filed for rectification of such error. Thus, in my view the submission of Ld.counsel that inference is liable to be drawn that there was no typographical error in the statement MarkDX, is meritious and not without substance.
70. It was further alleged that PW13 had stated in his examinationinchief that RO gave him the rukka and he went to PS ACB for registration of the FIR whereas panch witness stated in his crossexamination that none of the members of the raiding team left the spot during the postraid proceedings. However, I am of the view that the same cannot be said to be a material contradiction as minor contradictions are bound to occur in the statements of witnesses as sense of observations differs from person to person.
71. It was further alleged by Ld. counsel that evidence of panch witness cannot be stated to be that of an independent witness and he was a stock witness of police as he stated in his cross examination that he was earlier deputed as a panch witness 34 C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 39 times and in this regard reliance was placed on Ashish Kumar Dubey Vs State through CBI 2014 IV AD Delhi 473 wherein it was held that: "The above observations of the learned trial Court would seem to imply that there are "stock independent witnesses" who are at the service of the CBI. This seriously undermines the socalled independence of these witnesses. This was too serious a matter for the learned trial Court to be basing its views on surmises and conjectures as to how these two witnesses could already be present in the office of the CBI even before the complainant reached there with his written complaint."
Thus, in my view the panch witness being a stock witness of police could not be ruled out.
72. It was further submitted that panch witness was a tutored witness which was evident from the fact that he stated in his crossexamination that IO had briefed him. In support of the said contention reliance was placed on Ramesh Vs State 2013 (2) LRC 237 (Del.) wherein it was held that: "Admission of complainant in his cross examination that he was briefed by police officials outside the court as to what statement he was to give in court - cumulative effect of C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 40 all discrepancies makes appellants to benefit of doubt."
Thus, in my view the above deposition of panch witness makes the version of prosecution suspicious.
73. It was further contended by Ld. counsel that there was contradictions in the statement of witnesses regarding sealing of currency notes RO stated in this regard that he did not keep the currency notes in a sealed pullanda whereas panch witness stated in his crossexamination that the recovered currency notes were sealed in an envelope. Thus, the possibility of plantation could not be ruled out. In this regard, reliance placed on Om Prakash Vs State of Haryana AIR 2006 (SC) 894 wherein it has been held that: "Evidence as to preparation of sealed parcel containing bribe money discrepant.
From the records, it appears that whereas according to PW2, the sum of Rs.10,000/ was put in a packet and sealed with GLY seal, according to PW3, the DSP on his arrival opened the said packet, counted the money and put the same again in a packet and sealed the same. The DSP (PW4) did not make any such statement in this behalf nor explained the discrepancies in the statement of PW2 and C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 41 PW3."
74. It was further alleged that there were contradictions in the statement of RO and panch witness regarding handing over of seal in this regard RO had deposed that seal after use was given to panch witness whereas panch witness stated in his cross examination that seal was not given to him. It was further stated that IO gave evasive reply in this regard in his crossexamination and stated that RO told him that seal after use was handed over to some staff and thereafter stated that one witness told him that seal was handed over to him by RO. In my view the above discrepancies with regard to material fact also makes the case of prosecution doubtful.
75. It was further submitted by Ld. counsel that memo Ex. PW5/D and Ex. PW5/E could not be read as it did not bear signatures of A2. It was contended that RO did not obtain the signatures of A2 on these memos, thus presumption arises that A2 was not present at the time when the memos were prepared.
76. It was further submitted that prosecution had relied upon the hand wash of A2 whereas complainant had denied the recovery C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 42 of money from A2. It was alleged that complainant was not shown the tainted notes or handwash bottles and in his cross examination by State that handwash of A2 was taken which gave positive result.
77. It was stated that PW5 had testified that the pink colour solution obtained during pretrap proceedings was transferred into small bottle as such the possibility of plantation could not be ruled out.
78. In this regard reliance was placed on Janardan Sada @ Matua Vs State 2012 (2) JCC 1435 wherein it has been held that: "The seizure memos prepared by the police do not contain his signatures, which rules out his presence at the time of apprehension and recovery of the clothes."
79. It was further submitted that as per the version of panch witness the seizure memo Ex. PW5/D and Ex. PW5/E were written from point DA to DA where he signed it as such the possibility of fabrication of the same could not be ruled out as to whether they were prepared before registration of FIR as the C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 43 number of FIR given on the top point DA to DA is in the same ink and same handwriting and in this regard reliance was placed upon Ashok Kumar Vs State 2000 (1) JCC (Delhi) 21 Delhi where it has been held as under: "But strangely all these documents prepared at the spot contain the number of FIR at the top - It means that prosecution story was made up and far from reality - Therefore, benefit of doubt must go to the accused - Order of acquittal accordingly.
The number of the FIR (Ex. PW2/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. This gives rise to two inferences that either the FIR (Ex. PW2/B) was registered prior to the alleged recovery of the contraband or number of the FIR was inserted in these documents after registration of the FIR."
80. Thus, in my view as no explanation has been offered by the prosecution as to why signatures of A2 were not taken on Ex PW5/D and Ex. PW5/E and under what circumstances the number of FIR appeared on Ex. PW5/D and Ex. PW5/E, the reliability of the statement of IO that he recorded the FIR number in all the documents including Ex.PW5/D and Ex. PW5/E raises C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 44 a doubt as to whether FIR was registered prior to the recovery or the FIR number was mentioned after registration of FIR. Thus, benefit of doubt goes to the accused.
81. It was further contended that prosecution did not lead any evidence to bring home the guilt of accused under section 120B IPC as the basic ingredient of section 120B IPC that there was meeting of minds and agreement between the accused for committing an illegal act were not proved and in this regard reliance was placed upon Balkar Singh Vs State of Haryana 2015 (1) RCR (Crl.) 382 SC, it has been held as under: "As regards the conspiracy, the trial court has rightly noted that in order to prove the charge of conspiracy, it is necessary that the prosecution should prove the names of the place or places where it was hatched, names of the persons hatching it and how it was hatched. We find that the abovesaid understanding of a case to be appreciated when it was based on circumstantial evidence clubbed with the allegations of conspiracy was perfectly noted by the trial court."
In my view, there was no direct or circumstantial evidence to prove conspiracy.
C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 45
82. It was further stated that as per the version of IO, site plan was prepared at the instance of complainant and panch witness but the said fact was not mentioned in the marginal note of site plan Ex. PW15/A. It was further submitted that no question was put to panch witness in his crossexamination by State as to whether site plan was prepared at his instance, neither complainant was asked about the site plan in his cross examination by State. Panch witness stated in his examination inchief that one of the team members prepared the site plan. In his crossexamination, he stated that site plan was prepared by the IO. RO stated that site plan was not prepared by IO at the spot. No question was put to the complainant in his cross examination by Ld. Addl. PP about the site plan. Thus, in my view, the version of PWs regarding preparation of site plan was also discrepant and creates a doubt on the version of prosecution. It is to be noted that site plan is a vital part of investigation and not a formality to reach a conclusion as to whether the offence has been committed accordingly or not as held in 2015 (3) LCR 380 (Del)(DB).
C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 46
83. For the foregoing reasons, I am of the view that prosecution has failed to prove its case beyond reasonable doubt against A1 u/s.7, 13(1)(d) read with section 13(2) of the PC Act and section 120B IPC and against A2 u/s.8 of the PC Act read with section 120B IPC. Both the accused are given benefit of doubt and acquitted for the above offences. Their bail bonds are cancelled and sureties discharged. Both accused are directed to furnish bail bonds in compliance of section 437 Cr.P.C. File be consigned to Record Room.
Announced in the open court on this 31st day of May 2017 (Poonam Chaudhry) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No.7/15 (532294/16) State Vs. Vichitra Kumar & Ors. Page No. 47