Delhi District Court
State vs . Sudama Sharma Page 1 Of 19 on 28 February, 2014
1
IN THE COURT OF SH. NAROTTAM KAUSHAL, SPECIAL JUDGE
(PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Date of Institution : 13.09.2012
Date of reserving the Judgment : 20.02.2014
Date of pronouncing the Judgment : 28.02.2014
Corruption Case No. : 25/2012
FIR No. : 03/2010
Case Identification No. : 02401R0441432012
Police Station : Anti Corruption Branch
Under Section : 7 &13(i)(d) of Prevention of
Corruption Act, 1988
STATE
Versus
SUDAMA SHARMA
s/o Sh.Rati Ram Sharma
R/o D45, Yadav Nagar,
Samaypur, Delhi42.
JUDGMENT
1.1 It is the case of the prosecution that on 11.01.2010, some officials of Delhi Police went to the residence of complainant Isham Singh at Gannaur and enquired about the availability of complainant's son Naveen, who was a suspect in a murder case. Accused SI Sudama Shama was among those officials and he demanded Rs.50,000/ from State Vs. Sudama Sharma Page 1 of 19 2 complainant's wife for relieving his son from the case. The officials again visited the house of complainant on 12.01.2010. Complainant came to PSACB on 14.01.2010 and on his complaint, conversation of demand between himself and the accused was recorded on a digital voice recorder, having been provided by PSACB. After satisfying themselves regarding authenticity of complaint on the basis of recorded conversation, raiding team was constituted on 15.01.2010 and trap was laid. Accused was caught accepting bribe of Rs.10,000/, in treated GC notes, in the presence of panch witness. Having found sufficient evidence against the accused, challan was filed in the court on 13.09.2012. 1.2 In view of the allegations made, cognizance of the offence punishable u/sec.7/13 of Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act') was taken against accused Sudama Sharma and he was summoned to face trial. Vide order dated 26.11.2012, charge for offences punishable u/sec.7/13 of the PC Act was framed, but accused pleaded not guilty and claimed trial.
2.1 Prosecution in support of its case examined 21 witnesses and accused examined 3 witnesses in his defence. Complainant Isham Singh and his wife Santosh have been examined as PW8 & PW16 respectively to prove the demand, of Rs. 50,000/ as bribe, by accused. Isham Singh (PW8) & Rohtash Singh Malik (PW19) has been cited & State Vs. Sudama Sharma Page 2 of 19 3 examined as witnesses to the trap laid on 15.01.2010 when accused demanded and accepted Rs. 10,000/ as bribe. S.S.Bola retired DCP (PW9) has proved sanction for prosecution against the accused. 2.2 Constable Bhivender Singh (PW1) proved the posting of accused as SubInspector at PSRohini. HC Rajesh (PW2) from PS Rohini proved FIR no.5/10 and other DD entries recorded with respect to said case.
2.3 HC Satyadev (PW3) was duty officer at PSACB, who proved recording of present FIR. Constable Kuldeep (PW6) had brought rukka from the spot to PSACB and given the same to duty officer for registration of FIR. HC Jai Prakash (PW4) and HC Ram Kumar (PW7) were MHC (M) at PSCivil Lines. They have proved safe custody of exhibits and case property. Constable Dinesh (PW5) is the link evidence for safe custody of exhibits when the same was sent to FSL, Rohini for examination.
2.4 Vinod Kumar (PW10) was a panch witness to recording of voice sample of accused Sudama Sharma. Deepak Kanda Nodal officer, Bharti Airtel (PW12) proved phone no.9729853770, to be subscribed in the name of Naveen S/o Isham Singh. He also proved its Call Details Record. Rakesh Soni, JTO, MTNL (PW15) proved that accused was State Vs. Sudama Sharma Page 3 of 19 4 subscriber of phone no.9868547343. He also proved its call details record.
2.5 Inspector Virender Thakran (PW18) was the raid officer. ACP Roop Lal (PW20) and Inspector Yash Pal (PW17) proved the stages of investigation. Dr. C.P.Singh (PW21) proved analysis report of voice sample of accused & complainant, on comparison with recorded conversation.
3.1 Incriminating evidence was put to the accused. He denied its correctness and his involvement in the case and sought opportunity to lead defence evidence.
3.2 Accused examined three witnesses. HC Rambir Singh (DW1) brought the Departmental Enquiry record and proved the statements of witnesses examined therein, namely ASI Ramesh Lal & Smt. Surinder Kaur. Both the persons were examined in court as DW2 & DW3. ASI Ramesh Lal (DW2 ) deposed that on 14.01.2010, he was working under the control of the accused and was present in his room between 02:30 to 05:00 PM, when accused was not present in the office. Surinder Kaur (DW3) has deposed that o 14.01.2010 between 03:30 & 04:00 PM she went to PSRohini (South) to met the accused but he was not present. Similarly, on 15.01.2010, she was present in his room at 04:30 PM, when one person arrived and kept some money in the file lying on the table of accused.
State Vs. Sudama Sharma Page 4 of 19 5 4.1 Sh. Sanjay Soni, Ld. Additional PP for the State has argued that Isham Singh (PW8) and Rohtas Singh Malik ( PW19) have proved demand, acceptance and recovery of bribe. Ct. Suresh (PW14), Karnail Singh ( PW13) and Isham Singh (PW8) have proved the conversation between accused and complainant on 14.01.2010 when the accused agreed to accept Rs. 25,000/ towards bribe. Transcript of the conversation was prepared by Karnail Singh ( PW13) in the presence of Isham Singh ( PW8). Isham Singh has admitted the certificate of correctness of transcript to have been rightly signed by him. Referring to the call detail record of complainant and accused proved by Rakesh Soni ( PW15) and Deepak Kanda ( PW12); it is argued that there is a call made on 15.1.2010 at 4.36 PM i.e. shortly before the raid between accused and the complainant. Further recovery of treated GC notes from the possession of accused raises a presumption as enshrined in section 20 of the PC Act. There is no justifiable explanation by accused for the presence phenolphthalein powder on his hands as well as on the pocket of his pant.
4.2 Sh. H.K. Sharma, Ld. defence counsel has strongly contested the case of prosecution. It is argued that Isham Singh ( PW8) has deposed about demands having been made by accused on 12.1.2010 and 13.1.2010. No charge has been framed qua these demand. The testimony of Isham Singh ( PW8) as regards demand made on 11.1.2010, 12.1.2010 and 13.1.2010 is inadmissible as the same is hearsay State Vs. Sudama Sharma Page 5 of 19 6 evidence. Santosh ( PW16) has not supported the case of prosecution as regards demand of bribe from her. There was no preverification of the demand, conducted by the Raid Officer. Reliance has been placed upon P. Sirajuddin etc. Vs State of Madras etc. AIR 1971 SC 520. It is further submitted that the recorded conversation of demand dated 14.01.2010 is inadmissible as the original recording device was neither produced before the Court nor before the FSL. There is no evidence of transfer of data from device to CD. There is also no evidence as to how and when the recording device was issued. Matching of voice sample of accused and complainant in the conversation is castigated on the ground that FSL report Ex. PW21/A, wrongly identifies the speakers. It is next argued that there is no evidence of any demand of bribe or attempt to obtain illegal gratification by the accused from the complainant, at the time of trap. There is also no evidence of the amount having been accepted by the accused. Recovery has been sufficiently explained in the cross examination of Isham Singh ( PW8), who deposed that accused was in the process of returning the money to him, when the police party arrived and nabbed him. Accused had in fact abused the complainant for having kept the money under his files. Reference is also made to testimony of Surender Kaur ( DW3) who has also testified on the same lines. Reliance has also been placed upon R.K. Dey Vs State of Orissa AIR 1977 SC 170 and Amarpal ( Raj Pal ) Vs State 170 ( 2010) Delhi Law Times 788 ( DB) on the aspect of appreciation of evidence. State Vs. Sudama Sharma Page 6 of 19 7 5 On the basis of charge framed, evidence on record and arguments raised, following issues would require consideration.
(i) Whether there was demand of Rs.50,000/ as bribe by accused prior to 14.1.2010, specifically on 11.01.2010?
(ii) Whether amount of bribe was settled at Rs.25,000/ to Rs.
30,000/ on 14.01.2010, between accused and complainant?
(iii) Whether accused demanded and accepted bribe on 15.01.2010 at the time of trap?
I shall now deal with all the three aspects one by one.
(i) Whether there was demand of Rs.50,000/ as bribe by accused prior to 14.1.2010, specifically on 11.01.2010? 6.1 To prove the demand of bribe prior to 14.01.2010, complainant Isham Singh (PW8) and his wife Smt. Santosh (PW16) have been cited and examined as the sole witnesses. Complainant Isham Singh (PW8) in his complaint Ex. PW8/A has stated that some officials of Delhi Police visited his residence at Gannaur on 11.1.2010 and demanded Rs. 50,000/ as bribe from his wife. One of them had disclosed his name as Sudama Sharma. He has further stated that on 12.12.2010 those persons had again come to his house. However, when complainant Isham Singh stepped in the witness box as PW8, he was silent as regards any demand having been made on 11.01.2010 from his State Vs. Sudama Sharma Page 7 of 19 8 wife. Complainant's wife Santosh (PW16) has also not deposed about any such demand on 11.01.2010. On being cross examined by Ld. Additional PP, she stuck to her testimony made in examination in chief. There is thus no evidence of demand of bribe by the accused from complainant's wife or from any other person 11.01.2010. 6.2 Isham Singh (PW8) improved on his complaint and deposed that on 13.1.2010 officials of Delhi Police had visited his house, in his absence, and his neighbours told him to arrange for bribe, as indicated to them by the official namely SI Sudama Sharma and SI Khan. Since the allegations of demand on 13.01.2010, conveyed through the neighbours is not a part of the initial complaint, no witness from the neighbourhood was examined during investigation and cited as a witness. Testimony of Isham Singh ( PW8) to this effect is not admissible, being hearsay evidence.
6.3 In the face of aforesaid evidence, it can be safely concluded that there is no evidence of demand of bribe by the accused from complainant or his wife, allegedly made on 11.01.2010 by visiting his residence at Gannaur or on any date prior to 14.01.2010.
(ii) Whether amount of bribe was settled at Rs.25,000/ to Rs. 30,000/ on 14.01.2010, between accused and complainant? State Vs. Sudama Sharma Page 8 of 19 9 7.1 To prove this aspect of prosecution case, prosecution has relied upon the testimony of Isham Singh (PW8) and recorded conversation between him and the accused. Isham Singh (PW8) has deposed that on 14.01.2010 he went to PS ACB and narrated the circumstance to the ACP. A constable was deputed to accompany him and he was advised to record the conversation with accused. The witness in his examination in chief stated that he went to PS Mangolpuri for recording the conversation; however, on being cross examined by Ld. Additional PP, he corrected himself and stated that he had gone to PS Rohini (South) for recording the conversation. He deposed that he met the accused and discussed the matter with him and explained that he can arrange only about Rs. 25,000/. Accused told him to return on the next day and he would make him meet the IO. The conversation was recorded on recording instrument. On being further examined ( on 22.4.2013), he deposed that he identified the voice of the accused in a cassette of recorded conversation which was played in his presence. However, he again said that it was not the cassette which was played, but the recording instrument itself. On being cross examined by Ld. Additional PP, he further confused the aspect whether the conversation contained in recorder was played before him or the cassette. He, however, identified the transcript which has been named by the IO as as 'memo of voice identification' ( Ex. PW8/J). He also accepted the certificate of correctness of transcript to be rightly appended by him. State Vs. Sudama Sharma Page 9 of 19 10 7.2 On being cross examined by Ld. defence counsel, Isham Singh (PW8) deposed that he had not met SI Sudama Sharma on 14.1.2010 but had only seen his name plate. While further being cross examined as regards the proceeding of 15.01.2010, he deposed that on meeting the accused, he told him that he had come to meet as some police officials had come to his house looking for his son in a murder case.
7.3 Supporting evidence of Ct. Suresh (PW14) records that on 14.01.2010 he went with Isham Singh to PS Rohini for recording conversation between him and accused.
7.4 SI Karnail Singh (PW13) has deposed having prepared CD of the recorded conversation. He deposed that he had saved the recording on the hard disk of computer after down loading the same from recorder. He had played the recording in the presence of the complainant and the same was then converted into two CDs. Another witness examined by the prosecution to prove correctness of recorded conversation is Dr. C.P. Singh ( PW21). He has proved his report Ex. PW21/A regarding matching of specimen voices of accused and the complainant with the recorded conversation. During testimony of this witness, it transpired that in his report he had incorrectly labeled the voices of accused and complainant in the questioned document i.e. State Vs. Sudama Sharma Page 10 of 19 11 transcript of recorded conversation. His report thus matched the specimen voice of accused with voice of complainant in recorded conversation and vice versa. However, during his testimony in court he explained that the same was a clerical error.
7.5 Shri H.K. Sharma, Ld. defence counsel has challenged the recorded conversation on the ground that Isham singh ( PW8) in his cross examination denied having met the accused on 14.01.2010. It is argued that, had the witness gone to PS Rohini ( South) on 14.1.2010; he would not have introduced himself to the accused on 15.01.2010 when he went for the trap. It is also argued that Karnail Singh ( PW13) has not deposed having handed over the audio recorder to Ct. Suresh ( PW14). The report of Dr. C.P. Singh Ex. PW21/A matches the sample voice of complainant with accused and vice versa.
7.6 It is correct that the complainant Isham Singh ( PW8) has deposed having recorded the conversation and has also admitted his certificate about the correctness of transcript. However, his testimony in cross examination, that he introduced himself to the accused on 15.01.2010 casts a doubt on his meeting with the accused on 14.1.2010 and the conversation having been recorded on 14.01.2010. Had the complainant met accused on 14.1.2010 and conversed with him, there was no occasion to introduce himself again on the very next day. The State Vs. Sudama Sharma Page 11 of 19 12 original digital voice recorder having not been produced before the court or before the FSL also creates a doubt, especially in the absence of certification u/s 65B of the Indian Evidence Act with respect to the CD of conversation. Isham Singh(PW8) has further created a doubt, in as much, as he has deposed having identified the conversation when played from original recorder; whereas it is the case of Karnail Singh ( PW13) that he played recording from the hard disk of computer. Inspector Virender Thakran ( PW18) in whose presence the recording was played has given a third version and deposed that conversation as recorded in CD was played in presence of complainant. The evidence as noticed above, thus, creates a doubt about the recorded conversation between accused and the complainant regarding demand of bribe or its settlement at Rs. 25,000/ to Rs. 30,000/ on 14.1.2010.
(iii) Whether accused demanded and accepted bribe on 15.01.2010 at the time of trap?
8.1 Isham Singh Complainant (PW8) & Rohtash Singh Malik - panch witness (PW19) are cited & examined by the prosecution to prove this aspect of the case. Isham Singh (PW8) has deposed that on 15.01.2010, he along with the raiding team reached the office of accused. Members of the raiding team remained outside the police station. He along with the panch witness went up to the room of accused. Panch State Vs. Sudama Sharma Page 12 of 19 13 witness remained outside the room of accused. Accused wan not present in the room. He placed money in a file on the table of accused. On arrival of the accused, he told him that he had been able to arrange only Rs. 10,000/. Accused picked up the money and returned the same to him, saying that he had not spoken to the IO. On being crossexamined by Ld. Addl. PP, he further deposed that on 15.01.2010 at about 04:35 PM, on instructions of raid officer, he had made a phone call to the accused, on his mobile phone. Despite being crossexamined at length by Ld. Addl. PP, he did not support the remaining case of prosecution. On being cross examined by ld. defence counsel, he deposed that accused on arrival to his room asked him about his particulars and he told him that he had come to met the accused, as some officials had come to his house looking for his son. He also admitted that accused told him that he was not the IO in the said case and that he should talk to the IO. He also admitted that on having been told about the money placed under a file on his table, accused abused him and asked as to where money was lying. Witness had then pointed out the file and accused picked up the money and asked him as to why the money had been kept there. He also admitted that on hearing his loud voice, officials of PSACB came and apprehended him. 8.2 Rohtash Singh Malik - Panch Witness (PW19) has also deposed similarly to the complainant, as regards his non presence in the room of the accused. PW19 deposed that he had remained outside the State Vs. Sudama Sharma Page 13 of 19 14 room of accused, from where he could see the accused and complainant but could not hear their conversation. He was given a signal by the complainant and he transmitted the same to raiding team, which arrived and nabbed the accused.
8.3 The testimony of panch witness does not aid the prosecution case at all. As per the testimony of Isham Singh (PW8) as well as Rohtash Singh (PW19), he never entered the room of accused. In his own testimony, he does not even depose having seen or heard the accused demanding and accepting bribe from the complainant. He has deposed having transmitted the signal made by complainant. This version is contrary to the prosecution case, wherein, panch witness had been instructed to remain close to the complainant and in a position to hear and see the proceedings. It was the panch witness, who was to give signal and not the complainant. Complainant's own testimony itself creates doubts on the prosecution story. In the examination in chief itself, he has deposed that he placed the money in a file on the table of accused, in his absence. He has further deposed that accused on arrival returned the money to him. On being crossexamined by the ld. Addl. PP, he reiterated the stand that he had kept the money in a file on the table of the accused and gave a signal to the panch witness that accused had picked up the money. On being crossexamined by ld. defence counsel, he further ripped apart the prosecution case, as regards demand of bribe State Vs. Sudama Sharma Page 14 of 19 15 at the time of bribe. He deposed that on accused getting to know about the money kept under a file on his table, accused abused and asked him as to why money had been kept there.
8.4 On the basis of evidence as discussed above, in my opinion prosecution has miserably failed to establish demand of bribe by the accused and acceptance thereof at the time of trap.
9.1 Recovery of treated GC notes from the possession of the accused has also been deposed differently by various witnesses. Isham Singh (PW8) deposed in crossexamination by the state, that currency notes were still in the hands of the accused when raiding team entered the room. He denied left pocket wash of trouser of accused, having been conducted in his presence. He further volunteered that he had put signatures on trouser of the accused at PSACB. Rohtash Singh Malik (PW19) has deposed that on directions of the raid officer, he recovered Rs.10,000/ from the left pocket of pant of the accused. On being cross examined by ld. defence counsel he deposed that IO, Raiding Officer and all other members of raiding team had entered the room of accused and he was still outside the room. He was called inside the room about two minutes later. He also deposed about the hands of the accused and left pocket of his pant having been washed in some water type solution, which had turned pink. He identified bottles of wash and pant of the State Vs. Sudama Sharma Page 15 of 19 16 accused. Inspector Virender Thakran (PW18) has ofcourse deposed that on his instructions panch witness had recovered the bribe money from the left pocket of trouser of the accused.
9.2 Thus, from the evidence as noticed above, two witnesses (namely RO and panch witness ) have deposed about the treated GC notes having been recovered from the left pocket of trouser of accused; whereas, complainant has deposed about the money having been recovered from the hands of the accused. The testimony of panch witness (PW19) regarding recovery from pocket of accused, casts a doubt on its authenticity as he has deposed that he entered the room two minutes after the entire raiding team entered, including the IO. This version is contrary to the prosecution case according to which panch witness was in the room of the accused and the IO had not entered the same, till much later. There is, thus, doubt caused about the manner of recovery of treated GC notes, as well. I, therefore, find no merit in the argument of Ld. Additional PP for invoking presumption u/s 20 of the PC Act. In my opinion presumption u/s 20 of PC Act can be invoked only when prosecution sufficiently proves demand, acceptance and recovery of illegal gratification from the possession of accused. In the present case as discussed in paras 6 to 8 above, demand & acceptance have not proved beyond reasonable doubt. The recovery has been explained by the accused as the complainant himself has admitted that treated GC State Vs. Sudama Sharma Page 16 of 19 17 notes were being returned to him by the accused when Raiding Officer came and nabbed the accused. Moreover the presumption envisaged u/s 20 of the PC Act is only as regards the motive and not as regards the demand and acceptance.
9.3 Presence of phenolphthalein powder on the hands of accused is also explained in the testimony of Isham Sigh (PW8). Complainant himself has deposed that accused picked the currency notes, abused him and was returning the same to him. Though, there is no justifiable explanation on record for presence of phenolphthalein powder on the pocket of pant of accused; yet this evidence can also not be read against him, as Isham Singh ( PW8) has deposed that trouser was not seized at PS Rohini ( South) but was seized at PS ACB, where he had put his signatures on the trouser before its sealing. And that the same was sealed in his presence at PS Rohini ( South). He has denied the suggestion that wash of trouser pocket, signing on the pocket, seizing and sealing thereof had taken place at PS Rohini ( South). The second witness to this proceeding Rohtas Malik ( PW19 ) has gone, much beyond the case of prosecution and deposed that even shirt of accused was seized and sealed.
10.1 The factum of telephonic call between accused and the complainant at 4.36 PM on 15.1.2010 would not prove demand, acceptance or recovery of illegal gratification from him. This evidence State Vs. Sudama Sharma Page 17 of 19 18 at the most proves that complainant and accused were in touch with each other, shortly before the raid. This circumstance alone wound not be sufficient to hold the accused guilty. Posting of accused at PS Rohini and registration of FIR No. 5/10 at PS Rohini (South) is also not a sufficient circumstance to connect the accused with demand or acceptance of bribe in the present case. Presence of phenolphthalein powder in the hand wash or pocket wash of accused's trouser have been dealt with in para 9.3 above. Grant of sanction for prosecution by S.S. Bola ( PW9) is also not a circumstance sufficient to prove his guilt. Log book entry proved by Ct. Jai Kishan ( PW11) only prove movement of vehicle. Remaining witnesses examined by the prosecution are only formal witnesses. Their testimonies only prove various stages of raid and investigation.
10.2 Judgments relied upon, by Shri H.K. Sharma, R.K. Dey Vs State of Orissa AIR 1977 SC 170 and Amarpal ( Raj Pal ) Vs State 170 ( 2010) Delhi Law Times 788 ( DB) have been perused. Principles enunciated therein regarding appreciation of evidence have been tried to be followed. The law laid down in P. Sirajuddin etc. Vs State of Madras etc. case can also be employed in the aid of defence. Though prosecution claims to have conducted preverification about demand, by making a recording of conversation of demand, yet the same was not sufficiently proved in this case as discussed in para 8 above. State Vs. Sudama Sharma Page 18 of 19 19 11 For the reasons stated in paras 6 to 9 above, I am of the considered opinion that accused is entitled to benefit of doubt. Prosecution has failed to proved beyond reasonable doubt that there was demand of illegal gratification by the accused on 11.1.2010 or on any date prior to 14.1.2010. Prosecution has failed to prove beyond reasonable doubt that complainant met the accused on 14.1.2010 at PS Rohini ( South) where the amount of bribe was negotiated at Rs. 25,000/ to Rs. 30,000/. The prosecution case as regards demand, acceptance and recovery of treated GC notes on the day of trap i.e. 15.1.2010 is also not proved beyond reasonable doubt. Accused is thus acquitted of the charges punishable u/s 7 & 13 (2) PC Act. However, in terms of sec.437 (A) Cr.P.C., accused is directed to furnish a bail bond for the amount of Rs. 50,000/ with one surety in the like amount, to appear before the appellate court, as and when such notice is issued in respect of any appeal, which may be filed against this judgment.
File be consigned to Record Room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 28.02.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
State Vs. Sudama Sharma Page 19 of 19