Delhi District Court
State vs . Beer Singh on 10 June, 2011
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI
Case ID No. 02401R0162282007
CC No. 195/09
STATE Vs. BEER SINGH
S/o Sh. Bakhtawar Singh
R/o Vill. & PO Thana Khurd,
PS Kharkhoda, Distt. Sonepat,
Haryana.
FIR No. 66/06
U/S 7, 13(1) (d) & 13 (2) of POC Act
Date of Institution : 15.02.2007
Judgment reserved on : 07.06.2011
Judgment delivered on : 10.06.2011
JUDGMENT
1. As per prosecution, on 25.08.2006, complainant Rajesh Bahadur Singh came to AC Branch and lodged a complaint. The said complaint was against one Beer Singh for demanding bribe of Rs. 12000/, which was ultimately settled at Rs. 8000/, from the complainant for giving the fire report to the complainant who needed it to lodge an Insurance claim. The complaint was recorded by AC Branch official Insp. Harish Kumar Sharma (RO) in the presence of panch witness Manoj Kaushik. State Vs. Beer Singh Page No. 1/26
2. The complainant brought 12 GC notes in the denomination of Rs. 500/ each and 20 GC notes in denomination of Rs. 100/ each and produced the same before the RO. The RO recorded the numbers of the said GC notes in the preraid report. After getting the said GC notes checked by the panch witness, demonstration of the application of phenolphthalein and its reaction with sodium carbonate was given. The characteristics of both the powders were explained to the complainant as well as panch witness.
3. Instructions were given to the complainant to keep the panch witness close to him and to talk and to transact with accused in such a manner so that the panch witness would be able to overhear and see the transaction. He was also instructed to give the bribe money to the accused only on specific demand.
4. The panch witness was instructed to remain close to the complainant and overhear the conversation between complainant and accused and also observe the incident and after the demand and acceptance of bribe money by the accused, he should give a signal to the raiding party by moving his right hand over his head twice.
5. Thereafter Raid Officer, in the presence of panch witness, handed over the tainted GC notes to the complainant who kept the same in the upper State Vs. Beer Singh Page No. 2/26 left pocket of his shirt. Thereafter, hands of panch witness were got washed with the soap and water while the solution was thrown away. The RO recorded pre raid proceedings.
6. A raiding team was constituted consisting of complainant, panch witness, RO Insp. Harish Kumar Sharma, IO Insp. Hari Chand and some other AC Branch officials. At about 1:00 PM, the raiding team left AC Branch in a Government vehicle for ABlock, Paschim Vihar and reached there at about 1:45 PM. The vehicle was parked at some distance.
7. The complainant and panch witness were again reminded about the instruction given to them in the preraid proceedings and they were sent towards Fire Station, Paschim Vihar while members of the raiding team followed them by maintaining reasonable distance. IO Insp. Hari Chand and driver were left in the vehicle.
8. At about 1:50 PM, complainant and panch witness entered the Fire Station while members of raiding team took their suitable positions outside. At about 2:00 PM, panch witness came out of the gate of Fire Station and gave preassigned signal, at which, the raiding team reached the spot where accused Beer Singh was found present alongwith complainant and panch witness. On asking, the panch witness told the RO that accused Beer Singh had demanded the bribe amount of Rs. 8000/ from the State Vs. Beer Singh Page No. 3/26 complainant and had accepted the same in his right hand and had counted with his both hands and had kept the same in the upper left pocket of his shirt.
9. The Raid Officer disclosed his identity as an AC Branch official to the accused Beer Singh and challenged him. RO also asked the accused that he was to be searched and if he wanted he could take the search of the members of the raiding party but the accused declined to do so.
10. On the direction of RO, panch witness recovered the bribe money of Rs.8000/ from the upper left pocket of shirt of accused. The numbers of recovered GC notes were tallied with the serial numbers recorded in pre raid report. Thereafter, the recovered GC notes were taken in possession vide seizure memo.
11. Left and right hand wash of accused was taken, separately, in the colorless solution of sodium carbonate which turned pink. The same was transferred to four clean glass bottles and sealed with the seal of HKS. Similarly, the wash of upper left pocket of shirt of accused was taken which gave positive result and the residue was transferred to two glass bottles and sealed with the seal of HKS. Thereafter, the said shirt was converted into sealed parcel.
State Vs. Beer Singh Page No. 4/26
12. Sealed bottles containing hand wash, parcel containing pant and sample seal were taken in possession vide seizure memo. Accused Beer Singh was arrested. Thereafter, Raid Officer prepared post raid report.
13. IO Insp. Hari Chand was called to the spot. Exhibits/case property as well as accused Beer Singh, copy of raid report and related documents were handed over to him for investigation.
14. The case was registered and chargesheet filed on which, charges were framed.
15. As per the charge, on or before 25.8.2006, accused Beer Singh while working as SubFire Officer in the Fire Station, Paschim Vihar and as such being a public servant demanded Rs. 12000/ and later on agreed to accept bribe of Rs. 8000/ other than legal remuneration from the complainant Rajesh Bahadur Singh for giving the fire report to the complainant who needed it to make the Insurance claim and thereby he committed an offence punishable u/s 7 of the Prevention of Corruption Act, 1988.
16. Secondly, on the abovesaid date and place, accused being employed as above public servant obtained bribe of Rs. 8000/ from the said complainant as a pecuniary advantage for himself by corrupt or illegal means State Vs. Beer Singh Page No. 5/26 or otherwise by abusing his position as such public servant and thereby he committed an offence of criminal misconduct as specified u/s 13 (1) (d) and punishable u/s 13(2) of the Prevention of Corruption Act, 1988
17. Accused pleaded not guilty and claimed trial.
18. In evidence, the prosecution had examined nine witnesses to substantiate the charge whereas the accused had examined three witnesses in his defence.
19. I have heard the arguments on behalf of prosecution wherein Sh. Abdul Aleem, Addl. PP states that the prosecution has been successful in proving the fact that the accused had demanded bribe amount of Rs. 12000/ and subsequently, the amount was settled at Rs. 8000/. A raid was constituted whereby the panch witness PW8 was present at the time of the demand and acceptance of the bribe amount alongwith the complainant. The testimonies support and corroborate each other to the extent that the prosecution has been successful in proving this fact inculpating the accused under Section 7 & 13 (1) (d) of the POC Act. The RO (PW9) and the IO (PW6) have not only identified the accused as the person who had demanded the bribe amount and from whom the same was recovered but also the authenticity of the chemical analysis of the hand wash signifying the chemical evidence of handling and retaining the tainted GC notes accepted State Vs. Beer Singh Page No. 6/26 by the accused as the bribe. The case of the prosecution stands fully proven and hence the accused be held guilty.
20. Sh. H. R. Dhamija, counsel for the accused, on the other hand, has argued that there was no call made by the accused to the complainant informing of the fire in as much as the testimony of the complainant in regard to the phone call made by one policeman Shammi informing of the fire in the shop thereby falsifying the case of the prosecution. Be it as it may, the defence has proven on record that there was no shop owned by the complainant as well as the fact that the complainant was a nefarious character and had connived with the police in foisting a false case because the accused had refused to make a report as per the design of the complainant. These facts go to show that the complaint is false and that the accused had neither demanded nor accepted bribe amount.
21. Prior to the determination of the complicity of the accused in commission of the offence it is imperative to determine whether the prosecution had procured the sanction under the provision of POC Act which is sine quo non for prosecution of the accused under POC Act.
22. Sanction U/s 19 of POC Act is not an idle formality, but it is a sacrosanct act as the future and career of a Government official is involved. Hon'ble Supreme Court in Ram Kishan Prajapati Vs. State of U.P., (2000) State Vs. Beer Singh Page No. 7/26 10 SCC43 has stressed that the person according sanction should be a competent person and a sanction accorded by the person not competent to grant the same cannot be held to be a valid sanction. This fact has not been challenged by the accused.
23. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the court has to see is whether or not the Sanctioning Authority, at the time of giving sanction, was competent to accord sanction and whether it had applied its mind. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
24. Sanction lifts the bar for prosecution. It is sacrosanct act which affords protection to government servants against frivolous prosecutions. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. The validity of the sanction would, therefore, depend upon the material placed before the Sanctioning Authority and the fact that all the relevant facts, material and evidence have been considered by the Sanctioning Authority. Consideration implies application of mind. The order of sanction State Vs. Beer Singh Page No. 8/26 must ex facie disclose that the Sanctioning Authority had considered the evidence and other material, placed before it. This fact can also be established by the extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority.
25. Since the validity of "sanction" depends on the application of mind by the Sanctioning Authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution. State Vs. Beer Singh Page No. 9/26
26. The Hon'ble Delhi High Court in the case of Bhisham Kumar Vs. State 1999 (iii) AD (Delhi) 177, has also applied the test as prescribed in the enunciation of the Hon'ble Supreme Court in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh 1979 Chandigarh Criminal Cases 113 (SC) and the view taken by the Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622 (supra).
27. Accordingly, PW1 R. C. Sharma, Chief Fire Officer, Delhi has been examined who has testified that he had been posted as such when a request was received from AC Branch alongwith the copy of FIR, Raid report, seizure memo, statements recorded u/s 161 Cr.PC, report of FSL and site plan for grant of sanction u/s 19 of POC Act to prosecute Beer Singh posted as SubFire Officer, DFS, Paschim Vihar. The witness had gone through the documents placed before him and applied his mind. After examining the facts and circumstance, he was of the view that the accused Beer Singh should be prosecuted in the present case. Being competent authority to remove the accused from his service, the witness had accorded sanction u/s 19 of POC Act to prosecute the accused vide sanction order PW1/A which bears the signature of the witness. The same was sent to the DCP, AC Branch.
28. The witness was cross examined to challenge that there was no application of mind as a draft of the sanction letter had been sent alongwith State Vs. Beer Singh Page No. 10/26 the requisition letter but the said contention is denied or that there was no application of mind in according the sanction.
29. The requirement of sanction under Section 19 of the POC Act has been fulfilled when the witness had testified that he had gone through the facts together with the investigation report etc. as placed by the AC Branch and had applied his mind to the said facts and circumstances of the case and then had accorded sanction. In consequence, it can safely be said that a valid and authentic sanction had been accorded for prosecution of the accused.
30. The case was initiated on the complaint of PW5 who has testified that he was running a confectionery shop and his shop was destroyed in fire on 22.8.2006. After about 2 hours, the official of fire brigade arrived at the shop and thereafter on 24.8.06 he received a phone call from accused Beer Singh to collect the report from office on 25.8.06. The accused is stated to have asked for Rs. 12000/ for the preparation of report. On his inability to pay the same, the accused called the complainant and stated that the amount could be negotiated once he came to the fire station. The complainant thereafter asked the amount to be brought by him. The accused demanded a sum of Rs.8000/. Being averse to giving the said amount as bribe the complainant went to the AC Branch and alongwith Rs.8000/ at about 11.30am and met Inspector Harish Kumar to whom a complaint was lodged which is Ex.Pw5/A in the presence of a panch witness by the name of State Vs. Beer Singh Page No. 11/26 Manoj Kumar.
31. The complainant gave Rs. 8000/ in the denomination of Rs. 500 (12 GC notes) and Rs. 1000/ (2 GC notes) to Inspector Harish who recorded the number of GC notes and prepared pre raid report Ex.PW5/B. The RO applied phenolphthalein powder on the same and thereafter, consequence of such application and exhibited the purpose by taking hand wash of the panch witness in colorless solution which turned pink. The GC notes were handed over to complainant to be kept in pocket while the solution was thrown away. The RO instructed the panch witness as well as complainant to remain close to each other and further the panch witness was instructed to give a preassigned signal, once he was satisfied that bribe amount was paid. He was further instructed to hear and observe the transaction while similar instructions were given to the complainant. Pre raid report was drawn which is Ex.P5/B.
32. At about 1.00pm, the complainant alongwith panch witness, RO Insp. Harish Chand and other members of raiding party went to Paschim Vihar Fire station and reached there at about 1.45pm. The vehicle was left at the distance with the driver and police official while the raiding team proceeded towards the office of fire station. The complainant and the panch witness went to the office while the raiding team took suitable position. The accused was found sitting on the chair at the office. On query as to the State Vs. Beer Singh Page No. 12/26 availability of the report, the accused stated that same is ready and further he asked for the thing that the complainant was required to bring. On reply to the affirmative, the complainant took out the GC notes from left pocket of his shirt and gave it to the accused. The accused counted the same with both his hand. The accused took out the report and placed it on the table from where the complainant picked up the same. The panch witness gave the predetermined signal and the raiding team accosted the accused. The panch witness informed the Raid Officer that accused had demanded and accepted Rs. 8000/ from the complainant and had kept the same in his left pocket. The accused became perplexed when challenged. The RO offered his search as well as search of raiding ream before taking search of accused. On the instruction of the RO, the panch witness took the search of accused and recovered the GC notes from the pocket of accused. Sl. numbers were tallied and were taken in possession vide seizure memo Ex.Pw5/C. The right hand wash of accused was taken which gave positive result of phenolphthalein. The residue was preserved, sealed and identified. Similarly left hand wash was also taken. The left pocket wash was also taken and residue was preserved and identified. Same were taken in possession vide memo Ex.Pw5/B. The fire report Ex.PX was seized vide Ex.PW5/E. Post raid proceedings were drawn. The GC notes have been identified as P1 to P32 while the bottles containing residue as P33 to P38. The shirt has been identified as Ex.P39 while the parcel as Ex.P40.
State Vs. Beer Singh Page No. 13/26
33. The witness has been cross examined by the counsel and at the very outset the ownership as well as the partnership of said shops had been challenged in as much as it has been challenged that the accused did not have Rs. 8000/ in his pocket. The witness has admitted that he did not take any of his partners to the fire station but he denied that he had not taken the money. It is submitted that it was subsequently that he could procure the fire report and in consequence thereof had deposited the requisite fee at the fire station CP from where he got the report. The complainant has also been challenged that he had a case against him u/s 308 IPC. It was admitted that he had been acquitted. It is also admitted that there was an another case by FIR No. 851/06 registered against him but the same was dismissed by the court. The witness has further admitted that he had remained with the raiding party at the spot for about ½ an hour or about 1 hour and many documents had been signed by him. It is also admitted that the RO had asked several officials of fire station to join the raid but they had declined. They also did not disclose their identity. The witness has also admitted that he had signed documents at AC Branch where the same had been prepared. But most of them were signed at the spot. The witness has denied the suggestion that accused did not demand bribe amount. The witness has denied that a false complaint had been lodged against the accused as the accused had refused to show any loss in the fire report.
State Vs. Beer Singh Page No. 14/26
34. The law in regard to the corroboration does not make it imperative but prudence requires that the same be corroborated. The Supreme Court in this regard has held in M.O. Shamshudhin Vs. State of Kerala, (1995) 3 JT (SC) 367: (1995 AIR SCW 2717 at p. 2728) as under:
"Now coming to the nature of corroborating evidence that is required, it is well settled that the corroborating evidence can be even by way of circumstantial evidence.
No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The Court should weigh the evidence and then see whether corroboration is necessary. Therefore as a rule of law, it cannot be laid down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon.
Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case."State Vs. Beer Singh Page No. 15/26
35. For the said purpose, PW8 Manoj Kaushik had been examined. It is testified that on 28.5.06 the said PW8 Head Clerk in the Directorate of Education was on duty as panch witness when complainant Rajesh Bahadur had lodged his complaint with Insp. Harish Kumar on which signatures of witness are appended. The complainant had produced Rs.8000/, in aforesaid documents, to the RO who had prepared report ExPw5/B. Subsequent to applying phenolphthalein on the same and demonstration of intent and consequence of such application, the witnesses were instructed to remain close to each other and to observe the transaction and further to extend the bribe only on specific demand of accused.
36. It was at 1.00pm that the raiding team alongwith panch witness and complainant left AC Branch and reached Paschim Vihar at 1.45 pm, the panch witness has testified that the complainant and panch witness went into the fire station and met the accused who was sitting in his cabin while the members of the raiding team followed them. The complainant is stated to have enquired about his report to which the accused stated that the said report was ready and he took out the report from his table. It is testified that accused had inquired whether he had done his work to which the complainant replied in affirmative and thereafter he gave the money to accused. Accused counted the same and kept it in the left pocket of his shirt. The panch witness came out of cabin and gave preassigned signal to the State Vs. Beer Singh Page No. 16/26 raiding team. The raiding team descended and apprehended the accused.
37. The witness has narrated the entire incident of the demand and acceptance including the search and procurement of the hand wash including pocket wash. The witness has identified the case property.
38. The accused asking the complainant whether he had done the thing he had been asked to do, the same was being referred to as the demand of bribe that is to say, he had already demanded bribe at an earlier date and on the day of the raid, the reference was a reminder. In corrupt practices, the terminology used as in other parlances reveals a vocabulary which is as variegated as number of people as every person has found his own way of expression. The very fact the accused had asked the complainant whether he had done the thing asked for was sufficient to enquire whether he was ready and willing to pay the bribe amount in consideration for giving him the fire report. The fact that the accused had accepted the GC notes, extended to him by the complainant and by accepting and counting the same and subsequently keeping it in his pocket shows a voluntary acceptance and intention to retain it and as such the obtainment is writ large thereby inculpating the accused u/s 7 of POC Act. The accused had misused his official position in demanding the same and accepting the bribe amount from the complainant.
State Vs. Beer Singh Page No. 17/26
39. The law in this regard is very clear that is to say that there has to be a demand followed by the acceptance and to clinch the matter the recovery of the bribe money matching the particulars in the raid report.
40. From the evidence of two main witnesses viz. the complainant and the panch witness, it is clear that there is authentic testimony of the aforesaid two witnesses to manifest the demand, acceptance and subsequent recovery of bribe amount to inculpate the accused under Section 7 of POC Act. Needless to say, the mere demand and acceptance of bribe would also inculpate the accused under provisions of Section 7(1)(d) of POC Act.
41. The accused had, in fact, demanded, accepted and retained the GC notes for supply of fire report to the complainant. The learned counsel for the accused has challenged the character as well as the ownership of the shop of the complainant raising aspersion as regards his status in the said shop. The learned counsel for the accused has nowhere challenged that the accused had not been arrested after accepting the GC notes and subsequent recovery of the same.
42. The analogy can be taken from B. Noha Vs. State of Kerala and Anr. (2006 (12) SCC 277) where it was observed by the Supreme Court as follows:
"10. The evidence shows that when State Vs. Beer Singh Page No. 18/26 PW1 told the accused that he had brought the money as directed by the accused, the accused asked PW1 to take out 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 case 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:
"12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted as 'motive' or 'reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like State Vs. Beer Singh Page No. 19/26 'gratification' or any valuable thing'. It 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 of giving satisfaction to the public servant who received it."
11. This decision was followed by this Court in M. Narsinga Rao Vs. State of AP (2000 (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 AP 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."
12. Before proceeding further, we may point out that the expressions "may presume" and "shall presume"
are defined in section 4 of the IPC, 1872. The presumptions falling under the former category are compendiously known as "factual State Vs. Beer Singh Page No. 20/26 presumptions" of "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression "shall be presumed" is employed in section 20(1) of the Act, it must have the same import of compulsion.
13. When the sub section deals with legal presumption, it is to be understood as terrorem i.e in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc. if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. (Narsinga Rao V. state of AP State Vs. Beer Singh Page No. 21/26 2001 (1) SCC 691).
15. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumption in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis a vis the facts of the particular case. The discretion is clearly envisaged in section 114 of the Evidence Act.
43. A challenge has been made by accused to the testimony of the complainant who has stated that the accused had called him on the phone informing him of the fire and subsequently, it was stated that a police official by the name of Shammi, who was on PCR duty, informed him that his shop had caught fire. Be it as it may, the said portion of the testimony may not ring of truthfulness yet it is not the complainant who is charged for prevarication but the accused for his demand of bribe and acceptance of the same. Even otherwise, the falsehood in the deposition is not material and does not go to the root of the case to falsify the same.State Vs. Beer Singh Page No. 22/26
44. Admittedly, the complainant is not a person of impeccable character as has been testified. He has many things to hide and in that endeavor has brought in falsehood in his testimony. The said falsehood are not fatal to the case. The law requires to separate the chaff from the grain by the court and to discard all that does not ring of truthfulness and only believe that truthful portion. The entire testimony for this purpose need not be disregarded.
45. The law recognises the incorporation of certain discrepancies and infirmities in the testimonies and has discounted these facts by stating that these are the essentials which do crop up from which no criminal case is immune sans which no conviction would follow resulting in miscarriage of justice.
46. Before we can say that the guilt has been fastened on the accused, it has to be determined whether there had been a procedural impropriety under which the accused was apprehended while accepting the GC notes. It has not been challenged that the panch witness (PW8) was not an independent witness and was a partisan witness. Neither has the accused led any evidence to the effect that the complainant was inimical towards him or had a reason for his implicating the accused in the said case. As regards the procedural infirmities are concerned, no prejudice whatsoever has been State Vs. Beer Singh Page No. 23/26 caused to the accused whereby the documents had been signed at the AC Branch and not at the spot. But then, this is a contentious issue as the RO PW9 Insp. Harish Kumar Sharma has testified that the hand wash and the pocket wash was taken at the spot and the same were sealed with the seal of HKS and were seized vide seizure memo Ex.PW5/D.
47. The infirmity in the testimony of PW9 is sought to be raised that the shirt pocket Ex.P9 did not yield red color but then chemical proof is a weak proof where there is a challenge to it ocular version of testimony would prevail. As regards the pocket wash not being of appropriate hue, the same can be discounted as the chemical reactions are subject to many conditions.
48. The evidence that the accused seeks to bring on record is self contradictory as he states in the statement u/s 313 Cr.PC that the complainant had sought the accused to prepare a false report in his favor when he was neither the owner of his shop nor did he have any connections with any other shop. The accused is stated to have refused to oblige the complainant and hence the present complaint followed.
49. In consequence to the said stand taken by the accused, the accused has examined DW1 Shiv Dayal Ahuja. The said witness has admitted that there was a fire which had consumed his shop. DW2 Ved Prakash Bhasin has sought to corroborate the accused in stating that no State Vs. Beer Singh Page No. 24/26 person by the name of Rajesh Bahadur Singh, the complainant was owner of any of the shops or for that matter DW3. But this is of little significance as it is not the ownership which is on challenge, but the fact that there was a fire and the accused herein was required to prepare a fire report denoting the damage that had occurred in the said fire. There is no denial of the said fact and an independent witness viz. PW8 had witnessed the demand of bribe from the complainant PW5 and had also witnessed the acceptance of the same.
50. Where an impeccable evidence of the demand of bribe by the accused and his acceptance of the same which was witnessed by the aforesaid two witnesses and subsequent recovery of the same has been brought on the record, it can safely be said that the accused had, in fact, inculpated himself in commission of the offence charged.
51. Keeping in view the legal principles, as can be culled out from decisions referred to herein, applying the fact situation to them the inevitable conclusion is that the accused had demanded and in consequence thereof had accepted the tainted GC notes as bribe which was subsequently recovered from his custody. The act constitutes the fulfillment of the condition as laid down under the Provision of Section 7 of POC Act by the misuse of his official position as envisaged in Section 13(1) (d) of the POC Act.State Vs. Beer Singh Page No. 25/26
52. In consequence, the prosecution has been successful in brining on record the evidence manifesting the aforesaid offence committed by the accused and as such I hold him guilty under the provisions of Section 7 & 13 (1) (d) punishable under Section 13(2) of the POC Act.
To come up for arguments on sentence.
Announced in the open court today on 10th June, 2011. (RAKESH SIDDHARTHA) SPECIAL JUDGE (PCACT)06 TIS HAZARI, DELHI State Vs. Beer Singh Page No. 26/26 IN THE COURT OF SH. RAKESH SIDDHARTHA, SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI Case ID No. 02401R0162282007 CC No. 195/09 STATE Vs. BEER SINGH S/o Sh. Bakhtawar Singh R/o Vill. & PO Thana Khurd, PS Kharkhoda, Distt. Sonepat, Haryana.
FIR No. 66/06
U/S 7, 13(1) (d) & 13 (2) of POC Act
Judgment delivered on : 10.06.2011
Order on Sentence announced on : 12.07.2011
ORDER ON SENTENCE
1. It is never too simple and easy to incarcerate a person for his offence and be certain as to whether the sentence so given is commensurate with his act. An overview and humane touch is required when a plea of the plight of the family and the dependents is taken before the court. It is true that we are answerable for our own acts but it is seldom that others are not effected by it . Be it the offence or punishment.
State Vs. Beer Singh Page No. 27/26
2. When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with very strong hand and to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences. If on the other hand any public servant is given the impression that if he succeeds in protracting the proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, we are afraid its fallout would afford incentive to public servants who are susceptible to corruption to indulge in such nefarious practices with impunity. Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servant could easily raise the fine amount through the same means. (Madhukar Bhaskarrao Joshi Vs. State of Maharashtra (2000 (8) SCC 571) . State Vs. Beer Singh Page No. 28/26
3. I have heard Sh.Abdul Aleem, Ld. APP for the State and Sh. H. R. Dhamija, Advocate for the convict on the point of sentence.
4. Learned counsel for the convict submit that convict Beer Singh is of mature age and has eight children, out of which two are married and the remaining require is support and care. He also has a wife to support being the only bread earner in the family. He is a family man and has a good character. Rigours and strain of protracted trial has had its toll on his health in as much as his family life has been disturbed.
5. Learned Addl. PP for the State submits that convict does not deserve any leniency being a public official, he had to manifest honesty and diligence in his functioning, he has misused his official position for personal gain.
6. The learned Addl. PP for the State has cited the Hon'ble Supreme Court's enunciation in Swatantar Singh Vs. State of Haryana 1997 4 SCC 14 wherein the Hon'ble Court had observed as under : "Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralizing the honest officers. The efficiency in public service would improve only when the State Vs. Beer Singh Page No. 29/26 public servant devotes his sincere attention and does the duty diligently truthfully honestly and devotes himself assiduously to the performance of the duties of his post".
7. After hearing both the sides and upon perusal of the record, I find that it is difficult to accept the prayer of the convict that he deserves any leniency in this case.
8. Corruption is all pervading and it is the public service that has to manifest honesty and diligence in its functioning so as to give a clean society. Lest the public service degenerates and become a cauldron of corruption, the courts have to step in and send a message that the society shall not endure this degeneration.
9. The convict does not deserve any indulgence from the court of law and as such custodial sentence of Rigorous Imprisonment alone would serve as a real deterrent because the conduct of the corrupt government servant deserves to be seriously deprecated and no clemency can be shown.
10. Keeping in view the fact and circumstances of this case, I sentence convict Beer Singh to undergo RI for a period of two years with a fine of Rs. 2000/ u/s 7 of POC Act, 1988 and in default of payment of fine, State Vs. Beer Singh Page No. 30/26 convict shall undergo SI for a period of one month. The convict is further sentenced to undergo RI for a period of three years with a fine of Rs.2000/ U/s 13(1)(d) punishable U/s 13(2) of POC Act and in default of payment of fine, convict shall undergo SI for a period of one month. Both the sentence shall run concurrently and the convict shall be entitled to benefit u/s 428 Cr.PC.
11. A duly attested copy of the judgment and this order be supplied to the convict free of costs and thereafter file be consigned to record room. Announced in the open court today on 12th July, 2011. (RAKESH SIDDHARTHA) SPECIAL JUDGE (PCACT)06 TIS HAZARI, DELHI State Vs. Beer Singh Page No. 31/26