Delhi District Court
State vs Ombir Sharma Etc on 1 July, 2010
State V/s Ombir Sharma etc
IN THE COURT OF SH. A. S. YADAV SPECIAL JUDGE :
DELHI
C C No. 173/08
State V/s Ombir Sharma
S/o Sh. Raughbir Sharma,
r/o 188/5, RPF Line, Daya Basti
Delhi.
Vikram Singh,
S/o Sh. Rampat Yadav,
R/o Village Ghasera, District
Rewari, Haryana.
Suresh Chand,
S/o Naunidh Singh,
R/o Daya Basti, RPF, Police Line,
Delhi.
F. I. R No. : 14/2002
Under Section : 7/13 of Prevention of Corruption
Act, 1988 & U/s 120-B IPC.
Police Station : Anti Corruption Branch
Date of Institution 15.1.2003
Judgment reserved on 1.7.2010
Judgment delivered on 1.7.2010
JUDGMENT
On 11.3.2002 complainant Maheshwar Dayal ( PW9 ) went to Anti Corruption Branch and handed over complaint Ex. PW6/A to Insp. Makhan Singh ( PW6 ) in presence of panch witness Ajmer Singh Kharab C. C. No. 173/08 Page No. 1 of 16 State V/s Ombir Sharma etc ( PW4 ) regarding demand of bribe by ASI Sharma Ji.
2 The gist of the complaint is that complainant was running a tea stall adjoining the wall of Central Hospital on the road leading to Paharganj from Cannaught Place. An ASI who was being addressed as Sharma Ji was taking bribe of Rs. 100/- per month from him for the last 5- 6 months. For the last two months he started taking bribe of Rs. 200/- per month and last month he demanded bribe of rs. 300/- per month. Complainant was not in a position to pay that much bribe amount. Accordingly he went to Anti Corruption Branch and gave his complaint Ex. PW6/A. 3 Prosecution case further is that complainant took with him Rs. 300/- i.e. three GC notes of Rs. 100/- each . The Sr. number of those GC notes were recorded in the pre raid proceedings Ex. PW4/A by the raid officer and numbers of those GC numbers were got checked through panch witness . Those GC notes were treated with phenolphthalein powder. The Raid Officer gave demonstration by asking the panch witness to touch his right hand with those GC notes and thereafter the wash of right hand of panch witness was taken in a water like solution that turned pink. This way the Raid Officer explained the purpose of treating the GC notes with phenolphthalein powder. Panch witness was instructed to remain close with the complainant and to see the transaction and after being satisfied that he had actually seen the transaction he was instructed to give signal by waiving his hand over his head.
4 The raiding team left Anti Corruption Branch at 2.35 PM in C. C. No. 173/08 Page No. 2 of 16 State V/s Ombir Sharma etc government vehicle and reached near railway hospital, connaught place in a government at about 3.10 PM. The government vehicle was left there and Insp. Tarkeshwar Singh Investigating Officer remained in the government vehicle along with the driver. The complainant and panch witness were sent towards the shop of the complainant and Raid Officer along with other members of raiding team followed them and took their suitable positions. At about 4.20 Pm one head constable in RPF uniform came to the shop of the complainant who was having the name plate of Vikram Singh. He started talking with complainant. Then complainant and Vikram Singh went inside a gali. Thereafter complainant and Vikram Singh went inside the beat box of RPF near the entry gate of hospital. Panch witness also followed them. At about 4.30 Raid Officer received pre determined signal from panch witness and he along with members of raiding team rushed inside the beat box. Panch witness informed the Raid Officer that a person sitting across the table inside the room who is being addressed as Sharma Ji told the complainant to carry on his shop only on making the payment and on the asking of Sharma Ji complainant hand over the bribe money to accused constable Suresh Chand sitting towards the right side of Sharma Ji. Head Constable Vikram Singh was also present in the beat box. Raid officer challenged the accused persons that they had taken the bribe of Rs. 300/- from the complainant and offered his search as well as search of members of raiding team before taking the search of accused persons but accused persons refused to do so and on listening this constable Suresh Chand C. C. No. 173/08 Page No. 3 of 16 State V/s Ombir Sharma etc took out the tainted money from the left pocket of his pant and placed it on the table and started apologizing. On the directions of Raid Officer panch compared the sr number of those recovered GC notes with the sr number mentioned in pre raid report Ex. PW4/A which tallied. Those recovered GC notes were taken into possession vide seizure memo Ex. PW4/E. The left hand wash of accused Suresh Chand and wash of left pocket of his pant was taken separately in colourless solution of sodium carbonate which turned pink and the solution was transferred in four empty, small, clean bottles. The bottles were thereafter sealed with the seal of MS. Marked paper slips LHW-I-II and LSPPW-I-II were pasted on those bottles after obtaining the signature of panch witness and complainant thereon. The pant of accused was converted into pulanda. Raid Officer prepared the sample seal and the bottles, sample seal and pulanda of pant were taken into possession vide memo Ex. PW4/F. Raid Officer drawn the post raid proceedings Ex. PW6/B and prepared rukka Ex. PW6/B. 4 The prosecution case further is that thereafter raid officer called Insp. Tarkeshwar ( investigating officer ) at the spot and handed over to him the custody of accused persons, case property, recovered GC notes of Rs. 300/- exhibits of case seizure memo and copy of raid report. Investigating officer prepared site plan Ex. PW5/A at the instance of complainant and panch witness. He arrested the accused vide personal search memo Ex. PW4/H1 to H3 and thereafter Investigating Officer along with accused persons went to P.S. Civil Lines and accused persons were lodged in lockup of PS Civil lines and Investigating Officer deposited C. C. No. 173/08 Page No. 4 of 16 State V/s Ombir Sharma etc the case property with MHCM PS Civil Lines. The investigation was conducted by the Investigating Officer and after completion of investigation charge sheet was filed in the court. 5 After complying with the provisions of Section 207 Cr. P. C. and after hearing the Ld. Addl. PP for the state and ld. Counsel for accused charges were framed against the accused.
6 In order to prove its case prosecution examined 10 witness . 7 Thereafter statement of accused persons were recorded u/s 313 Cr. P. C wherein they denied about the demand and acceptance of the bribe amount. They claimed to be innocent and falsely implicated in this case.
8 During the course of trial accused Suresh Chand who is alleged to have accepted the bribe amount on the directions of accused Ombir Singh and from whom the bribe amount was recovered died and accordingly proceedings stood abated against him 9 I have heard Sh. Alok Saxena Ld. Addl. PP for State and Sh. R. S. Singhal Ld. counsel for the accused persons.
10 It is submitted by Ld. defense counsel that the sanction is bad in law as the sanctioning authority had not applied its mind and simply signed the draft sanction order sent to him by the investigating officer. On the other hand it is submitted by ld Addl. PP for the state that sanctioning authority PW1 Sh. Y. K. Joshi categorically deposed that he accorded the sanction after carefully going through the record. 11 In order to prove sanction prosecution examined Sh. Y. K. C. C. No. 173/08 Page No. 5 of 16 State V/s Ombir Sharma etc Joshi ( PW1 ) who categorically deposed that he accorded the sanction in respect of the accused persons which are Ex. PW1/A to Ex. PW1/C. He was competent to remove the accused persons from the service and the sanction orders were issued by him on the basis of material and relevant records produced before him after due application of mind. In his cross examination he admitted that he had received a proforma of the sanction order but he does not remember how many copies were received by him. He further stated that he does not remember exactly details of the documents examined by him but number of documents were received by him. He further stated that in the blank form the writings were filled by his clerk. He further stated that he signed the sanction order after examining the record and making relevant noting in the office file. He denied the suggestion that he accorded the sanction in mechanical manner. The sanctioning authority appeared in the court and categorically deposed that he signed the sanction order after going through the record and after due application of mind. Simply because he received the draft of sanction order does not mean that he had not applied its mind. Here it is relevant to refer to the case of State of Maharashtra and ors V/s Ishvar Piraji Kelpatri & ors. 1996 Cri. L. J. 1127, where Hon'ble Supreme Court had laid down that if the Authority according sanction makes statement that while signing the order of sanction, it had personally scrutinised the file and had arrived at required satisfaction , it is not necessary to look for, that there was application of mind or not or that material on record was examined by the concerned officer or not before according sanction, C. C. No. 173/08 Page No. 6 of 16 State V/s Ombir Sharma etc especially when order prima facie shows that, he had done so. In the case C. S. Krishnamuthy V/s State of Karnataka, 2005 IV AD (SC) 141, the Apex court in para 7 of the judgment has held as under:- 7.
This sanction order was proved by Mr. V. Parthasarthy, Deputy General Manager of Bangalore Telecom as PW 40 , he was competent authority to accord sanction and he accorded the sanction for prosecution of accused for the alleged offence on 28th February, 1990 as per Ex.P.83 . He deposed that S. P., CBI sent a report against the accused and he perused the report and accorded the sanction as per Ex. P.83 . He deposed that he was satisfied that there was a case for prosecuting the accused for the alleged offence. He admitted that he received a draft sanction order and a draft sanction was also examined by vigilance cell and then it was put up before him. He also deposed that before according sanction he discussed the matter with the vigilance cell. He also admitted that he was not a law man, therefore, he discussed the legal implication with a legally qualified officer in the vigilance cell. He has denied the suggestion that he did not apply his mind in according sanction. It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecuting against public servant from harassment. But the sanction should not be taken as a shield to protect corrupt and dishonest public servant. It is also useful to refer to the case of Indu Bhushan C. C. No. 173/08 Page No. 7 of 16 State V/s Ombir Sharma etc Chaterjee V/s State of West Bengal AIR 1958 Supreme Court 148. In that case the sanctioning authority deposed that before according sanction he went through all the relevant papers. In his cross examination he admitted that sanction was prepared by the police and it was put up before him by the personal branch of his office and he did not call for any record in connection with this matter from his office. It was argued before the Hon'ble Supreme Court that sanctioning authority merely put his signature on the ready made sanction order presented by the police. The Hon'ble Supreme Court held that the statement of sanctioning authority does not prove that he merely put his signature on a ready made sanction presented by the police. The Hon'ble Supreme Court further held that it is true that he did not himself dictate or draft the sanction but the sanctioning authority had stated in clearest terms that before he accorded sanction he went through the relevant papers and there is no reason to distrust this statement of sanctioning authority being an officer of high rank.
12 Similarly in this case the sanctioning authority has clearly deposed that sanction was accorded after due application of mind. Prosecution has proved that sanction was properly accorded. 13 It is submitted by ld counsel for the accused that in fact accused persons were got falsely implicated by the complainant as ASI Ombir Sharma lodged DD No. 7 in DD register on 2.10.2001 . Before appreciating the contention of ld defence counsel it is relevant to look into DD No. 7, copy of which is Ex. DW1/A. As per Ex. DW1/A on 2.10.2001 at about 8.45 AM two persons came to him. One of them disclosed his C. C. No. 173/08 Page No. 8 of 16 State V/s Ombir Sharma etc name as Sushil Sahi RPF constable and told ASI Ombir that his wife was admitted in the hospital in Ward No. 14 for delivery and he sent his younger brother Sudhir Sahi for a cup of tea but Sudhir Sahi returned to the ward without tea. He was scared and he informed that his watch, ring and purse were snatched by 5-6 persons and he was also beaten by them. Thereafter he along with his brother came out. Few persons managed to run away but four persons were apprehended including the complainant. ASI Ombir Sharma made the relevant entry . Information was also sent to the PCR. Head Constable Jai Bhagwan from PCR came at the spot and thereafter SHO along with the staff came from Police Station Pahar Ganj. While complainant Maheshwar Dayal was being taken away he threatened ASI Ombir Sharma. It is submitted by him that complainant was having a grudge against ASI Ombir Sharma and he got him falsely implicated in this case. It is submitted by ld defence counsel that as per the complainant he had been giving bribe to ASI Ombir Singh for the last 5-6 months, then he must be knowing the name of ASI Ombir Singh very well but in the complaint he has not given the full name of ASI Ombir Singh rather only mentioned him as Sharma Ji. It is submitted by him that in fact complainant was not knowing Ombir Singh and he came to know him only after he was apprehended along with other persons and DD entry Ex. DW1/A was made. I find force in the submission of ld defence counsel. If the complainant was giving bribe to Ombir Singh for the last so many month he would have mentioned his full name in the complainant rather in his complainant he has mentioned that one ASI of C. C. No. 173/08 Page No. 9 of 16 State V/s Ombir Sharma etc RPF who is known as Sharma Ji demanded bribe from him. 14 It is submitted by ld defence counsel that in a trap case the position of bribe giver is that of an accomplice and his statement should not be acted upon unless corroborated in material particulars. He has referred to case of State of Bihar V/s Baswan Singh AIR 1958 Supreme Court 500.
15 It is significant to note that that as per the allegations made in the complaint as well as from the statement of the complainant it is clear that he was not averse to giving of bribe as he himself stated in the complainant that initially he was giving Rs. 100/- as bribe. Thereafter he started giving bribe of Rs. 200/- and he was annoyed simply because ASI Ombir Singh started demanding bribe of Rs. 300/-. Statement of such a person cannot be believed unless corroborated in material particulars. 16 Complainant only testified that he along with the raiding team went to his tea stall and while he was present at his tea stall accused Vikram Singh came to him and told him that Sharma Ji had asked him (complainant) not to run the tea stall without giving bribe and accused Vikram Singh further told him not to run the tea stall. Thereafter he told Vikram Singh that he had arranged Rs. 300/- which he was not ale to arrange earlier and thereafter accused Vikram Singh took him to RPF Police Picket and there ASI Ombir Singh was present along with constable Suresh Chand and ASI Ombir Singh asked him why he had put the tea stall without paying the bribe amount. Thereafter he told him that he has got the amount and thereafter ASI Ombir Sharma asked him to C. C. No. 173/08 Page No. 10 of 16 State V/s Ombir Sharma etc hand over the bribe amount to constable Suresh Chand but he insisted upon ASI Ombir to accept the bribe amount. ASI Ombir again asked him to hand over the bribe amount to constable Suresh Chand and thereafter he handed over the bribe amount to constable Suresh Chand which he accepted with his left hand and kept in left pocket of his pant. 17 Constable Suresh Chand had died during the proceedings. The statement of the complainant that he handed over the bribe amount to constable Suresh Chand on the asking of Ombir Singh is not corroborated by any independent witness. In order to corroborate the statement of complainant regarding the transaction prosecution examined panch witness Ajmer Singh Kharab who has not all supported the prosecution case. Regarding transaction he deposed as under:-
Complainant and the officials of Anti Corruption Branch started moving towards the casualty gate of the hospital and I followed them. Before I could reach there the transaction of taking and giving the bribe money was already over. I had not seen any accused demanding the money from the complainant or that the complainant paid any bribe money to any of the accused. Accused persons present in the court today were present in the police picket in railway hospital and I was told by Raid Officer Insp. Makkhan Singh that the bribe money was recovered from these accused persons. It was not recovered in my presence so I cannot say that which of the accused demanded the bribe and from whom the bribe money was recovered. We all came back to Anti Corruption Branch office and rest of the proceedings were conducted there. In my presence hands of none of the accused C. C. No. 173/08 Page No. 11 of 16 State V/s Ombir Sharma etc were washed in any solution. Police recorded these proceedings Ex. PW4/A and Ex. PW4/B which I signed at point P. I did not read Ex. PW4/A , PW4/B and the complainant of complainant before signing the same.
18 From the statement of panch witness it is evident that he had not seen the transaction and it seems that the panch witness had in fact not seen the transaction as complainant even in his examination in chief no where deposed that panch witness gave the pre determined signal after seeing the transaction. Complainant deposed that the moment bribe amount was accepted by constable Suresh Chand inspector Makhan Singh along with staff came at the spot and disclosed his identity. He no where deposed that Insp. Makhan Singh came at the spot after signal was given by panch witness. He was cross examined by ld. Addl. PP in this regard and when he was cross examined by ld. Addl. PP he stated "t hat it is correct that panch witness after seeing that money has been accepted by constable Suresh gave pre determined signal and only thereafter raiding team came at the spot." It is significant to note that complainant in his statement U/s 161 Cr. P. C stated that when panch witness tried to entered in police picket head constable Vikram Singh inquired from him purpose of his visit. Thereafter panch witness inquired from Vikaram Singh about the casualty and thereafter Vikram Singh pointed him towards the casualty and then Vikram Singh came inside the picket meaning thereby that panch witness was not inside the picket. C. C. No. 173/08 Page No. 12 of 16
State V/s Ombir Sharma etc Complainant stated that panch witness saw the transaction from the door of the picket. How can complainant say so ? Panch witness was outside the picket. Even as per the prosecution case Vikram Singh was at the door of the picket. There was no occasion for the panch witness to see the transaction and panch witness also deposed that he had not seen the transaction.
19 Regarding constable Vikram Singh complainant deposed that " while he was present at his tea stall accused Vikram Singh came to him and told him that Sharma Ji had asked him (complainant) not to run the tea stall without giving bribe and accused Vikram Singh further told him not to run the tea stall. Thereafter he told Vikram Singh that he had arranged Rs. 300/- which he was not ale to arrange earlier and thereafter accused Vikram Singh took him to RPF Police Picket." 20 In fact he has not stated so in his statement U/s 161 Cr. P. C and the same was in total contradiction to the statement recorded U/s 161 Cr. P. C complainant admitted in his cross examination that he did not tell the police that constable Vikram Singh asked him to close his tea stall as he had not paid the bribe amount. He has no where stated in his statement u/s 161 Cr. P. C. that Vikram Singh told him that ASI Ombir Sharma asked him ( complainant ) not to run the tea stall without paying the bribe amount. It is submitted by ld defence counsel that these improvements have been made by the complainant just to implicate accused Vikram Singh and I find force in that.
21 It is further submitted by ld defence counsel that there was C. C. No. 173/08 Page No. 13 of 16 State V/s Ombir Sharma etc no occasion to demand bribe by the accused persons. It is submitted by him that in fact accused Vikram Singh and deceased Suresh Chand were not named in the complaint and the complaint was made against one Sharma Ji. It is submitted by him that complainant deposed against ASI Ombir Singh only because he recorded DD Ex. DW1/A against him. It is submitted by him that Investigating Officer admitted in his cross examination that shop in question was not within the jurisdiction of Railway. It is submitted by ld defence counsel that in fact there was no shop at all and even Raid Officer in his cross examination admitted that actually there was no shop but complainant used to sell the tea on a footpath adjoining the wall of the hospital and when they reached at the spot the shop of the complainant was not there and the complainant arranged goods for preparing tea from the side shops meaning thereby that the complainant was not having any shop and that probablize the defence of the accused persons that they were got falsely implicated on account of DD entry Ex. DW1/A in which the complainant was one of the person who was apprehended at the spot and he had threatened ASI Ombir Sharma of dire consequences. Even it was suggested to the complainant that he was not running any shop which he declined. However he admitted in his cross examination that he used to run the tea stall on the patri by spreading sheet and that place belong to NDMC but the wall adjoining which he used to sit belong to railway. Assuming for the sake of arguments that complainant was running tea stall but even than that tea stall was outside the railway property and it was within the C. C. No. 173/08 Page No. 14 of 16 State V/s Ombir Sharma etc jurisdiction of NDMC area and there was no occasion for the accused persons to demand the bribe. In fact in the DD entry there is mention of tea stall but that tea stall but it was not mentioned that that tea stal belonged to complainant. . Constable Sudhir Shahi DW2 deposed that on the day of incident his sister in law was admitted in Central Railway Hospital, New Delhi and on that day between 7.30 to 8.00 AM he had gone outside the hospital to fetch tea for his sister in law and some altercation took place between him and tea vendor. 4-5 persons were present at the shop of tea vendor. They along with tea vendor assaulted him and in the process snatched his purse, ring and watch . Thereafter he went inside the hospital and brought his brother and thereafter they went to police post RPF and from there Ombir Sharma along with two constables came at the spot. Some persons fled. However four persons were caught and brought to RPF police post. A call was also made to the PCR and PCR came at the spot and complainant Maheshwar Prasad was one of the four persons who were taken to RPF Police Post. 22 The statement of this defence witness fully corroborated what is recorded in Ex. DW1/A. It is evident from DW1/A that on 2.10.2001 complainant threatened ASI Ombir Sharma and finally he got him trapped in this case falsely. It is settled law that defence witnesses are entitled to equal treatment and equal respect as that of prosecution witness. Reference is placed on the case of State of Haryana V/s Ram Singh 2001 ( 1 ) JCC ( SC ) 213.
23 Prosecution has not examined any witness to prove that C. C. No. 173/08 Page No. 15 of 16 State V/s Ombir Sharma etc accused ASI Ombir Sharma demanded bribe from the complainant except complainant. Similarly prosecution has not examined any witness to prove that Vikram Singh demanded bribe except complainant. I am not inclined to believe the uncorroborated statement of such a complainant. Admittedly no recovery has been effected from either of the accused persons.
24 In view of the above discussion I am of the view that prosecution has failed to prove its case against both the accused persons. Accordingly accused Ombir Sharma and Vikram Singh are acquitted. Their bail bonds cancelled. Sureties discharged. File be consigned to record room.
Announced in the open court on this 1st day of July, 2010.
( A. S. YADAV ) SPECIAL JUDGE DELHI.
C. C. No. 173/08 Page No. 16 of 16