Delhi District Court
Cc No. 140/19, State vs . Hc Om Prakash & Another Page 1/62 on 25 April, 2019
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IN THE COURT OF SH. SANJAY KHANAGWAL
SPECIAL JUDGE (PC ACT)-02 (ACB), CENTRAL,
ROUSE AVENUE COURTS, NEW DELHI
CNR No. : DLCT11-000616-2019
FIR No. : 27/08
Police Station : Anti Corruption Branch
CC No. : 140/2019
Under Section : 7/13 Prevention of
Corruption Act, 1988
readwith section 120B
IPC
State
Versus
1. HC Om Prakash
son of Late Sh. Bhana Ram
R/o VPO Thana Kalan
Distt. Sonipat(Haryana)
2. Const. Jagbir Singh
son of Sh. Raghubir Singh
R/o VPO Bhaproada,
Jhajjar(Haryana).
FIR NO. 27/08,
CC No. 140/19, State Vs. HC Om Prakash & Another Page 1/62
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Date of institution : 12.10.2017
Offences charged with : u/s 120B readwith
section 384 IPC
and section
7/13(2) PC Act
and u/s 7/13(1)(d)
of POC Act
r/w sect. 120B IPC
Plea of the accused : Pleaded not guilty
Date of reserving the judgment 22.04.2019
Date of pronouncement
of judgment : 25.04.2019
Final Order : Accused Om
Praksh -Convicted
Accused Jagbir-
Acquitted
JUDGMENT:-
1). In this case accused Head Constable Om Prakash and constable Jagbir who were posted FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 2/62 -:3:- in Delhi Police has been charge sheeted for the commission of offence under Prevention of Corruption Act 1988, on the basis of complaint of one Sompal. The charge has been framed u/s 120B IPC r/w section 384 IPC & section 7/13(2) of PC Act and u/s 384 IPC, u/s 7 and 13(1)(d) punishable u/s 13(2) of PC Act 1988 readwith section 120B IPC against both the accused.
2). As per the factual matrix of this case, on 09.08.2008, some quarrel had broken out between complainant and his niece, namely Santosh. As a result of which she made a call to PCR and the inquiry thereof was assigned to HC Om Prakash and constable Jagbir Singh who were posted in PS Narela.
Both the accused persons took his son Vinay Kumar, nephew Vicky and brother Balak Ram to the police station and beat them up. On the FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 3/62 -:4:- next day morning, complainant reached to the police station to inquire about the complaint, where both the accused persons were present. After waiting for long accused HC Om Prakash asked accused constable Jagbir to take him outside and make me understand how a case is disposed off. On his instructions constable Jagbir had demanded a sum of Rs.5000/- from the complainant. Complainant had shown his unwillingness, on that HC Om Prakash scolded him and threatened him to arrest alongwith his family members and also to inform his department. After some negotiations, accused HC Om Prakash scaled down the demand to Rs.3000/-. Complainant told him that he is only having Rs.1000/- at that time but he refused to settle for that amount and asked him to arrange the entire sum of money. After taking Rs.1000/- from his brother, complainant offered the payment, same was refused by HC Om FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 4/62 -:5:- Prakash and asked constable Jagbir to make me understand. Jagbir told me to make the remaining payment of Rs.1000/- by the evening whereas Om Prakash on the insistence of constable Jagbir accepted a sum of Rs.2000/- from the complainant at that time.
3). In order to make the remaining payment of Rs.1000/- HC Om Prakash called the complainant on the next day at 6.00 pm in main Bazaar, where on the next day, Om Prakash met him and demanded the remaining sum of Rs.1000/-, again complainant insisted to settle for a sum of Rs.500/- but accused Om Prakash was affirmed to take the entire sum of Rs.1000/-. This conversation was recorded by the complainant in his recorder with the help of SI Ramesh Kumar who put the same into his pocket. The amount of Rs.500/- was paid to HC Om Prakash through one unknown child, on the instructions of accused, this FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 5/62 -:6:- amount was handed over to that unknown child. For the payment of remaining bribe of Rs.500/-, he was called again.
Thereafter, on 12.8.2008, complainant had given a written complaint to the Anti Corruption Branch(ACB). A raiding team was constituted. Pre-raid proceedings were demonstrated to the complainant and a sum of Rs.500/- which was brought by him as GC note were smeared with phenolphthalein powder. The raiding team of inspector Avainash Sharma, Inspector constable Jai Prakash, panch witness and complainant, reached the spot. In front of Tezan Bag House, main Bazar, Narela accused was apprehended while demanding and accepting bribe for a sum of Rs.500/- from the complainant in the presence of panch witness. The GC notes were recovered from the possession of the accused and he was apprehended from the spot. Thereafter, FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 6/62 -:7:- during the course of investigation, lateron constable Jagbir was also arrested in connection with the demand and acceptance of bribe from the complainant.
4). During investigation of this case, from the recording in the voice recorder, audio CD containing conversation of accused and complainant were prepared and seized. Accused were arrested. On the completion of investigation, charge sheet was filed against them.
5). Formal charge for commission of offence punishable u/s 120B IPC r/w section 384 IPC & section 7/13(2) of PC Act and u/s 384 IPC, u/s 7 and 13(1)(d) punishable u/s 13(2) of PC Act 1988 readwith section 120B IPC was framed against both the accused to which they pleaded not guilty and claimed trial.
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 7/62 -:8:-
6). In order to prove the charges in the present case prosecution has examined as many as 26 witnesses. The testimony of material witnesses out of the same is being reproduced here under:-
7 (i). PW-1 Som Pal . He is the complainant.
In his testimony he has stated that two officials reached at his house from PS Narela and one of them demanded Rs.5000/- as bribe to dispose off the complaint. He has further deposed about scaling down of demand of bribe amount to Rs.3000/- and making payment of Rs.2000/- on one occasion and Rs.500/- on another occasion. Thereafter remaining Rs.500/- at the time of raid. This witness has failed to identify both the accused persons being the same police officials who made demand and accepted the bribe from him.
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 8/62 -:9:- 7(ii). PW4 Inspector Ramesh:- He was posted in ACB. On 12.8.08 he was deputed by SI Karnail Singh alongwith complainant with a recording device. For the purpose of recording the conversation between the accused and complainant he put the recording device in to the shirt pocket of the complainant. He handed over the digital voice recorder to SI Karnail Singh who prepared the CD Ex.PW1/P8.
7(iii). PW-5 ASI Jitender:- He was posted as MHCM, made the entry of GC notes, Exhibits and CD which were deposited in malkhana in register No.19. He also proved the entry of RC register vide Ex PW5/C through which the CD and the exhibits were sent to FSL for examination. 7(iv) PW6 Sh. A.K. Singh:- He was on panch witness duty in Anti Corruption Branch. In his presence the IO prepared one CD Ex.PW6/P1 on FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 9/62
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computer and prepared a detailed transcript Ex.PW1/F thereof.
7.(v) PW7 Sh.Karnail Singh, Dy.
Secretary, CBSE:- He handed over the digital voice recorder to SI Ramesh Kumar on 12.8.08 who returned the same on 13.8.08 after recording the conversation. He prepared two CD of the recording contained in the recorder which were seized by the IO vide memo Ex.PW1/1. On 4.10.16 this CD was again played in his presence and on the basis of the same he issued certificate u/s 65B Ex.PW7/A of the Indian Evidence Act regarding the correctness of the CD and conversation contained therein.
7.(vi) PW8 Sh. Balak Ram:- This witness has stated about the quarrel taken place and arrival of the PCR and police and further stated he alongwith Vicky and Vinay were taken to the PS.
7.(vii) PW9 Sh. Vicky:- This witness also FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 10/62
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stated about some quarrel taken place 8-10 years back and he alongwith Vicky, Vinay were taken to the PS and remained there for the whole night.
7.(viii.) PW10 Sh.Vinay Kumar :- He stated about the quarrel and arrival of the PCR and also deposed that he alongwith Balak Ram, Vicky were taken to PS and remained there for the whole night.
7.(ix) PW11 Sh.Bunty:- He is the panch witness and on 15.1.09 in the presence of two police officials namely Ashok and Dharmender, one CD was played by the IO. On seeing the recording, both the witnesses had identified the voice of one of the speaker to be of HC Om Prakash. Memo regarding the same was prepared and the same is Ex. PW11/A.
7.(x) PW12 ASI Ashok Singh:- In his presence the CD was played and he identified the voice of HC Om Prakash. He also perused the FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 11/62
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transcript.
7.(xi) PW14 HC Wazir Singh:- He was posted as MHC (R) PS Narela. He handed over the attested copy of roznamcha A and B dated 9.8.08 to 13.8.08 to IO. The roznamcha is Ex. PW14/B and chitha (duty roster of PS Narela) Ex. PW14/C. The roznamcha is regarding the daily diary entry regarding assigning the call of quarrel on 9.8.08 to accused HC Om Prakash and constable Jagbir.
7.(xii) PW15 Sh. Mihir Jha:- He was asked by Inspector Naresh Kumar to witness the recording of voice sample of complainant Sompal and HC Om Prakash in FSL. He deposed that in FSL only Sompal has come and accused HC Om Prakash did not arrive and in his presence voice sample of Sompal was recorded and he signed the relevant documents to this respect. His signature was also taken on cassette Ex.PW1/P9.
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 12/62
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7.(xiii) PW17 Sh. Dheeraj Kumar Addl.
Commissioner of Police:- Being the competent authority to remove constable Jagbir Singh and granted the sanction to prosecute him and the sanction order is Ex. PW17/A.
7.(xiv). PW17/A Ms. Madhulika Sharma (Retd.) Director FSL Rohini:- This witness gave a report Ex.PW17/A about the contents of the glass bottle RHW1.
7.(xv). PW19 Sh. Naresh Kumar, Inspector (Retd.):- He carried out part investigation of this case, arrested the accused constable Jagbir and also taken the voice sample of complainant and deposited the voice containing audio cassette in the malkhana.
7.(xvi) PW20 Sh. Atul Kumar Katiyar, Joint Commissioner:-. He accorded sanction to FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 13/62
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prosecute accused HC Om Prakash vide sanction order Ex.PW19/C.
7.(xvii) PW21 ACP Ravinder Kumar (Retd.):- He served notice to accused HC Om Prakash for taking his voice sample but the accused neither refused nor agreed to give the same. An application was moved in the Hon'ble Court for the said purpose vide Ex. PW21/A and a detailed reply submitted by the accused is Ex.
PW21/A1. On the said application a detailed order in this regard is Ex. PW21/B. The witness further submitted that voice sample of the complainant was sent to FSL alongwith the exhibits.
7.(xviii) PW22 Inspector Rohtash Kumar:-
He filed the charge-sheet and stated that CD kept for investigation was played in his presence and on listening the conversation contained in the CD, SI Karnail Singh admitted that it was the same conversation which was reduced by him from the FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 14/62
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digital voice recorder into the CD.
7.(xix) PW23 Dr. C.P. Singh, Assistant Director(Physics):- This witness conducted the auditory analysis of audio recordings of the conversation of demand between the accused and the complainant. One CD Ex.Q1 containing audio file which is the questioned audio recording "Exhibit-Q1". The specimen voice sample is "Exhibit S1" which is contained in a audio cassette Ex.2. On auditory analysis, witness opined by way of his report Ex.PW-23/A that the speakers of voice "Exhibit Q" and "Exhibit S" are the voice of same person (i.e complainant Som Pal).
7.(xx) PW24 ACP Ranbir Singh :- He was the RO of the case, he constituted the raiding party and apprehended the accused while receiving the bribe from complainant Som Pal. He FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 15/62
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conducted the pre raid and post raid proceedings and made report thereof as Ex.PW1/B and Ex.PW1/C respectively. He also witnessed the recovery of the GC notes from the possession of the accused. He proved the wash proceedings of the hand and shirt.
He also prepared rukka Ex. PW24/A and sent the same for registration of the case.
8). In his statement u/s 313 Cr.PC accused HC Om Prakash has denied the incriminating material came up in evidence against him.
He denied that he demanded Rs.5,000/- from the complainant Sompal for the false implication of complainant and his relatives.
He further stated that the matter was already settled by the complainant and there was no occasion for him to call them in the PS and to make the demand of money. The officials of ACB FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 16/62
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were interested in the success of the raid hence they have manipulated the story to make out a false case against him.
(9). In his statement u/s 313 Cr.PC accused constable Jagbir has denied the incriminating material came up in evidence against him.
He denied that he demanded or accepted any bribe nor negotiated in any manner for demand or acceptance of bribe. He has been falsely implicated in this case merely on the ground that on 9.8.08 he accompanied HC Om prakash to whom a call was marked and he accompanied him in his official capacity and finding his name in DD entry, ACB officials introduced his name also in the present case wrongly.
10). Arguments advanced by Sh.Girish FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 17/62
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Kumar, Ld. Addl.PP for the State and Sh.Yogesh Verma counsel for accused HC Om Prakash and Sh. Sandeep Sharma, Ld.Counsel for the accused constable Jagbir.
11). It is argued by Ld. Defence counsel for accused Om Prakash that there are several inconsistencies and contradictions in the statement of witnesses and in view of the same the prosecution has failed to prove its case beyond reasonable doubt.
Ld. Counsel further submitted that PW1 did not disclose any version that would constitute the alleged initial demand by the accused persons as alleged by ACB. Ld. Counsel further argued that the alleged initial demand is not proved, demand acceptance on the spot are also not proved.
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 18/62
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It is further averred that the alleged recorder used by the prosecution in the present case has not been proved, hence the alleged CD recordings relied upon by the prosecution are further inadmissible in law.
He has further averred that non examination of the panch witness is also fatal to the prosecution case.
Ld. Counsel for accused Om Prakash has placed reliance upon the following judgments:-
i) Ram Chander v. State 2009 (4) RCR (Cr.) 880 DHC;
ii) Subhash Parbat Sonvane vs. Stte of Gujrat 2002 CrLJ 2787 SC,
iii) Banarasi Das v. State of Haryana AIR 2010 SC 1589 and Gireeshan A vs. State of Delhi 2012 AD Delhi 8 DHC.
iv) Upendra Pradhan vs. State of Orissa (2015) CrLJ 2878 SC FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 19/62
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v) State of Rajasthan v. Raja Ram (2003) CrLJ 3901 SC
vi) Ghurey Lal v. State of UP JT (2008) 10 SC
324.
vii). Santa Singh v. State of Punjab 1956 SC 526 AIR (para 21).
viii) Ram Krishan Mithan Lal Sharma & Ors v. State of Bombay AIR 1955 SC 104.
ix). Ram Singh v. Col. Ram Singh AIR 1986 SC3.
x) Hanumant Govind Nargundar v. State of Madhya Pradesh AIR 1952 SC 343.
xi) State of Punjab v. Madan Mohan Lal Verma VII 2013 SLT 180SC,
xii) B. Jayraj v. State of A.P. IV 2014 SLT 128 SC,
xiii) C. Sukumaran v. State Kerala I (2015) SLT 694 SC
xiv) Dashrath Singh Chauhan vs. CBI 2018(4) LRC518 SC.
xv). State of Madhya Pradesh v. Sheetla Sahai & FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 20/62
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Ors AIR (2009) SC(Supp) 1744.
xvi) Anvar PV v. P.K. Basheer & Ors. VIII 2014 SLT 223 SC.
xvii) Ankur Chawla & Anr. vs. CBI 2014 (10) LRC 96 DHC xviii) Devesh Kumar vs. State 2010(1) JCC 762 DHC.
(xix) P. Satyanarayana Murthy vs. Dist. Inspector of Police & Anr. VII 2015 SLT 554 SC.
12). On behalf of accused Jagbir, Sh. Sandeep Sharma also argued that the prosecution has not been able to prove its case beyond reasonable doubt on account of several inconsistencies and contradictions in the statement of witnesses produced by the prosecution on to prove its case. He has further submitted that PW1 Sompal, who is the complainant of the case has not supported the FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 21/62
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case of the prosecution and was declared hostile by the Ld. Addl. PP. Even during the cross- examination he has not named accused Jagbir at any point of time. He stated that he never seen accused Jagbir prior to the proceedings of this case in the court at any point of time.
It is further averred that name of accused Jagbir was introduced in the complaint as in DD No.33A dated 9.8.08 the name of accused Jagbir was mentioned.
It is further averred that the prosecution has relied upon two digital files namely Rec 03 and Rec 04 but none of the files has any concern with the accused Jagbir as per the prosecution itself. It is further averred that identity of the accused Jagbir is also disputed as there were two police officials in the PS namely Jagbir No.1605 and No.808 and no TIP of accused Jagbir was sought by FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 22/62
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the prosecution at any point of time and none of the witnesses of the prosecution has identified accused Jagbir during the trial of the case.
On the point of sanction of prosecution of accused Jagbir it is averred that the sanction was granted mechanically without application of mind.
13). It is argued by Ld.Addl.PP that complainant and all the prosecution witnesses have supported the case of prosecution on all material aspect. The witnesses have corroborated each other as regards the demand and acceptance of bribe. Complainant has fully supported the case of prosecution. Complainant as well as prosecution witnesses have proved the relevant documents pertains to the investigation of this case.
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 23/62
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14). During the course of the arguments it is pointed out by Ld. Addl. PP that there is a typographical error in the charge framed against the accused persons. It is submitted that the date of incident has been mentioned in the formal charge as "13.8.2018" whereas the incident is pertains to "13.8.2008" when the raiding team went to the spot on the complaint of the complainant. The document filed alongwith the charge sheet has been relied upon to show the current date. Ld. Defence counsel for both the accused persons is having no objection if the typographical error is rectified at this stage in the judgment itself.
In these circumstances, on perusing the material on record filed alongwith the charge- sheet the date 13.8.2018 in the amended charge dated 5.6.2018 be read as "13.8.2008".
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 24/62
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15). In order to prove the charges against the accused persons, prosecution is required to prove the following points :-
(i) Accused HC Om Prakash and constable Jagbir being the public servant were working as Head constable and constable respectively in Delhi Police.
ii) Being posted in PS Narela they were assigned the complaint on PCR call of the niece of complainant
iii). Whether there was any initial demand of Rs.3,000/- as bribe by accused from the complainant in order to dispose off a complaint against the complainant?
(iv) Whether the accused demanded and accepted a sum of Rs.2,000/- from the complainant as bribe , thereafter, further demanded and accepted remaining amount of Rs.500/- as bribe.
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 25/62
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v) Whether the accused had demanded and accepted a sum of Rs.500/- as bribe from the complainant at the time of raid?
(vi) Whether the accused consciously accepted the bribe at the time of trap?
(vii) Whether there was a recovery of bribe amount of Rs.500/- from the accused?
16). The first point is whether accused HC Om Prakash and HC Jagbir were working as head constable and constable respectively in Delhi police in the capacity of public servants on the day of incident.
The testimony of PW16 Rajender Singh retired ACP is important to this respect and this witness has provided the bio-data of HC Om Prakash as Ex.PW16/B and bio-data of constable Jagbir as Ex.PW16/C. Both theses documents has been produced in his testimony to establish that FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 26/62
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both the accused were public servants and posted in Delhi Police. Although this factum has not been disputed from the side of any of the accused. Therefore, it is established that both the accused persons were working as police officials in Delhi Police and were the public servant on the day of incident.
17). In second point, Now the question arises whether the accused persons on 9.8.08 while being posted in PS Narela, were assigned the complaint on PCR call of the niece of the complainant. In order to establish this fact the statement u/s 313 of the accused Om Prakash is important. He has not denied this question that he alongwith co accused Jagbir while posted at PS Narela on the receipt of a PCR call which was assigned to him he alongwith accused Jagbir visited the house of complainant. In response to FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 27/62
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this question, he answered that the call was already resolved amicably by the parties and complaint was filed on the same day.
Whereas, accused constable Jagbir in his statement u/s 313 CrPC has admitted this fact.
In order to further establish the prosecution has examined PW HC Wazir Singh who was working as MHC(R) and provided the copies of roznamcha register A and B and duty roster dated 9.8.08 to 13.8.08 to the IO of the case. Ex.PW14/B is the roznamcha of 9.8.08 of 12.00 to 12.00 pm shows the assignment of the complaint on PCR to both the accused persons.
Apart from this, the chitha Ex.PW14/C is also produced in evidence of PW14 to show the posting and duty of both the accused persons in PS Narela on 9.8.2008 from 8.00 pm to 8.00 am. Therefore, in view of the above discussion it is established that both the accused persons were FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 28/62
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posted in PS Narela on 9.8.08 and were assigned the complaint of quarrel in connection with the present case.
18). Prosecution is required to answer the following that :-
(iii) Whether there was any initial demand of Rs.3,000/- as bribe by accused from the complainant in order to dispose off the complaint against the complainant?
iv) Whether the accused demanded and accepted a sum of Rs.2,000/- from the complainant as bribe, thereafter, further demanded and accepted a sum of Rs.500/-.
To prove the existence of initial demand by the accused persons, the testimony of PW1 Sh. Sompal is important. He is the complainant, on the basis of his written complaint case was registered FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 29/62
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against the accused persons on account of demand of bribe of Rs.3000/- from the complainant. In his testimony PW1 has stated that two police officials had come to his house in connection with the quarrel taken place between complainant and his niece. He further stated that on the next morning when he visited PS Narela he met with two police officials, one of the police officials had demanded a sum of Rs.5000/- as bribe from him to dispose off the matter but when he refused to pay the money, the amount of bribe was further scaled down to Rs.3000/- and the police officials directed the complainant to make the payment of Rs.3000/- at any cost.
It is further deposed by PW1 that he was having Rs.1000/- with him and he arranged Rs.1000/- from outside the PS and then paid Rs.2000/- to the said police official. Even after receiving Rs.2000/-, from PW1, the said police FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 30/62
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official insisted upon the payment of entire Rs.3000/- to him. Accordingly, complainant had promised the said police officials that he would arrange the rest of Rs.1000/- in the evening only then, he agreed to take Rs.2000/- which was given by PW1 to him.
It is further deposed by PW1 that he approached AC Branch and lodged a complaint regarding the demand and acceptance of bribe by the accused. PW4 Inspector Ramesh of AC branch had accompanied him in the area of Narela PS. He was having the recording instrument with him and he got the conversation recorded which was taken place between him and the said police official HC accused Om Prakash. He further deposed that accused had demanded remaining Rs.1000/- but complainant gave him only Rs.500/- at that time and the same was given through a boy who was present there.
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 31/62
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19). In order to prove the initial demand of bribe by the accused persons, the testimony of PW Sompal is the only piece of evidence. There is no other witness of this initial demand and PW1 is the only person who was having the knowledge of initial demand has deposed regarding the same.
The testimony of PW1 on the aspect of initial demand is remained unbreached and unchallenged. In his cross-examination of PW1, has stated that when he visited the PS first time on the next day of incident, none of the accused persons in the court present had not made any demand or acceptance of bribe from the accused. In his cross examination PW1 has denied the suggestion that none of the police official ever demanded bribe of Rs.5000/- from him to dispose off the matter and he further denied the suggestion that none of the police official told him that he had to pay Rs.3000/- at any cost. He FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 32/62
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further denied the suggestion that none of the police official agreed to accept or demand further Rs.3000/- from him.
20). Despite not identifying the accused in the court being the same persons who had made demand of bribe on the next day of incident, the factum of initial demand cannot be ruled out since PW1 has never stated that no demand of bribe at all made from him. He has just not identified the accused persons being the same who had demanded the bribe from him. In his testimony, he has not identified the accused persons due to the reason that due to lapse of time he was unable to identify any of the police officials. It is true that due to the lapse of time, a witness may not able to recognize the person involved in the alleged offence but testimony of the witness cannot be discarded only on this point. The commission of FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 33/62
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offence alleged against the accused is to be in the totality of circumstances and the testimony of all the witnesses. Merely not identifying as the person who had initially demanded the bribe is not going to absolve the accused when factum of initial demand by police official is proved. Now the question which is required to be answered by the prosecution that whether the accused persons were the same police officials who has been indicated by PW1 in his testimony who were involved in the demand and acceptance of bribe.
21). In order to establish the identity of the accused persons the testimony of RO PW24 is important. He has deposed about the pre raid proceedings and participation of the PW1 in the same. He has proved the factum of bringing bribe money of Rs.500/- consisting of five notes of 100 denomination which is also corroborated by PW1 in FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 34/62
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his testimony. He has also supported the testimony of PW1 on the point of leaving the ACB office to conduct the raid upon the accused for the demand and acceptance of the bribe.
PW24 has stated that "Thereafter, the complainant and panch witness were proceeded further and I alongwith other members of the raiding party had followed him and at about 6.20 pm we all took our position. At about 6.40 pm, the accused present in the court today, HC Om Prakash came there on a motorcycle near Tezan Bag House, main market and he started talking with the complainant and as soon as the accused taken the bribe from the complainant, panch witness had signaled towards the members of the raiding party and on receiving the signal at 6.35 pm, we immediately reached there and apprehended the accused Om Prakash alongwith the motorcycle. The accused was identified by the FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 35/62
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complainant as well as by the panch witness to be the same person who demanded and accepted the bribe of Rs.500/-."
From the testimony of PW24 it is revealed that the accused Om Prakash was the person who was present at the spot and the transaction regarding the demand and acceptance of bribe was taken place between him and the complainant. This witness has further deposed that GC notes were recovered from the possession of accused Om Prakash and taken into possession vide seizure memo Ex. PW1/D. It was the accused who was apprehended at the spot and thereafter he was handed over to the IO Inspector Avinash Sharma who arrested him vide arrest memo Ex. PW1/G. PW25 also proved the personal search of accused Om Prakash and also proved the seizure of motorcycle of accused Om Prakash from the spot vide memo Ex. PW25/A. FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 36/62
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PW2 ASI Jai Prakash also identified the accused Om Prakash who was present there at the spot when accused was apprehended and he correctly identified the accused Om Prakash in his cross-examination. Defence counsel has not given any suggestion on his presence at the spot that someone else was present instead of the accused Om Prakash.
22). From the testimony of these witnesses it is established that the person who came to the spot was the accused Om Prakash only. No other person except him was present there at the time of demand and acceptance of bribe from the complainant at the time of the raid. These witnesses have proved the identity of accused Om Prakash only at the time of the raid but the identity of the accused is also required to be proved at the time of initial demand of bribe from FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 37/62
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the complainant. Complainant has stated that due to lapse of time he is not able to identify the accused being the same person who demanded bribe at the time of raid as well as at the time of initial demand. But PW1 has not stated in his testimony that the police official who initially demanded bribe from him was different from the person who met him at the spot at the time of raid. Meaning thereby, the police official, who made the initial demand; who demanded and accepted the amount of Rs.2000/- prior to the raid; who demanded and accepted Rs.500/- through a boy; and who demanded and accepted the bribe of Rs.500/- at the time of raid was one and the same person. From the testimony of PW24 and PW25 the identity of the accused Om Prakash has been established that he was the same police official.
Therefore, it is proved that it was the accused Om Prakash who had made initial demand FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 38/62
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of Rs.3000/- as bribe from the complainant in order to dispose off the complaint against the complainant.
23). Similarly, there is no other witness except the complainant PW1 as to the factum of demand and acceptance of Rs.2000/- from the complainant as bribe and PW1 in his testimony has specifically stated that he made the payment of Rs.2000/- as bribe to the Head Constable. Accused has failed to breach the testimony of this witness on this point rather he has denied the suggestion put up by the defence counsel that none of the police officials accepted Rs.2000/- from him.
Therefore, in view of the above discussion the identity of accused Om Prakash has been established so is the initial demand and acceptance of Rs.2000/- as bribe prior to the raid.
24). In this case there is another payment of FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 39/62
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Rs.500/- as bribe to the accused Om Prakash prior to the raid. In his cross-examination by Ld. Addl. PP, PW1 has stated that:
"It is correct that on that day when I met with HC, I again offered him Rs.500/- instead of Rs.1000/- but he got annoyed and he insisted upon to pay Rs.1000/- only. It is correct that thereafter, Rs.500/-was not taken by the HC himself but he told me to give the said money to one boy who was called by him from the nearby place and then I handed over Rs.500/- to the said boy at the instance of HC."
In the cross-examination of this witness, no suggestion whatsoever has been given in order to deny the factum of demand and acceptance of Rs.500/- by the accused through one boy. Therefore, in view of totality of circumstances and evidence, this demand and acceptance of Rs.500/- is also proved beyond reasonable doubt.
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 40/62
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25). v) Whether the accused had
demanded and accepted a sum of
Rs.500/- from the complainant
at the time of raid?
(vi) Whether the accused consciously
accepted the bribe at the time of trap?
(vii) Whether there was recovery of bribe amount of Rs.500/- from the accused?
On these points, I am of the view that In the present case prosecution is not able to examine the panch witness as he was expired. In these circumstances, the testimony of the complainant PW1 is vital for the case of the prosecution. It has already been held by Hon'ble Supreme court in catena of judgements that reliance can solely be placed upon the testimony FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 41/62
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of complainant despite the fact that panch witness has not been examined. Although, testimony of complainant PW1 has not been corroborated on all the facts surrounding at the time of the trap when the alleged demand and acceptance of bribe has taken place. In these circumstances, the testimony of PW1 is to be seen in the light of the testimony of other witnesses examined by the prosecution. So far as the other witnesses which has been examined by the prosecution are the members of the raiding party which also includes the RO and the IO. IO PW25 had joined the proceedings after the conducting of the raid. PW24 has identified the accused who was apprehended at the spot and PW25 had further affirmed the identity of accused when he arrested him immediately after the raid. Prosecution witnesses have already proved the initial demand and acceptance of the bribe by the accused. HC Om Prakash From the testimony of FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 42/62
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PW1 and PW24 and PW25 the identity of the accused is already established that he was the public servant who has been referred by PW1 in his testimony as "police official" or "HC".
26). In his testimony PW1 has stated that he joined the trap proceedings of this case and handed over five currency notes of Rs.100 denomination to the RO. On the said currency notes some powder was applied in his presence.
He also deposed about the hand wash demonstration in the pre raid proceedings, which also supported by PW24, RO.
PW1 has deposed that "First of all we reached near a bag shop and then the police officials were checked in the PS where one police officials who had demanded money had met us there. The said police official had demanded Rs.500 bribe from me and then I handed over the FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 43/62
- : 44 : -
money which I was keeping in my pocket to the said police official and then he was apprehended and bribe money was recovered from him."
He further deposed in his cross examination by Ld. Addl. PP that "It is correct that thereafter the said HC reached at the spot in his motorcycle at about 6.40 pm and thereafter he asked from me about remaining bribe of Rs.500 and on asking by the said HC, I took out the GC notes from my pocket to the said HC and he received the bribe on his right hand."
In his cross-examination also this witness, stick to his testimony given in chief examination and denied the suggestion that no demand and acceptance of bribe of Rs.500 had taken place on the day of incident i.e. 13.8.2008. Infact he has stated that he is not able to identify the accused due to lapse of time but he has affirmed the demand and acceptance of the bribe FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 44/62
- : 45 : -
on 13.8.08.
From the testimony of this witness it is already established that bribe of Rs.500 was paid only on the demand made by the accused Om Prakash. The factum of initial demand and acceptance of Rs.2000 and Rs.500 respectively on two occasions already been proved by the prosecution. The demand and acceptance at the time of raid has been the continuation of the initial demand and acceptance, therefore, in the totality of circumstances and in view of the deposition of the witnesses it can easily be sumed up that accused Om Prakash had consciously accepted the bribe at the time of trap.
27). So far as recovery of bribe amount of Rs.500 from the accused, PW1 has stated in his testimony that accused was apprehended on the spot and bribe money was recovered from him.
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 45/62
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This fact is further corroborated from the testimony of PW24, the RO of the case, who stated that as soon as the accused had taken the bribe from the complaint panch witness had signaled the members of raiding party and he reached the spot and apprehended the accused HC Om Prakash and panch witness got recovered the bribe money of Rs.500 from the right hand of the accused. He tallied the recovered notes with the raid report and notes were tallied, the right hand wash of accused Om Prakash was taken and hand wash bottles were sealed and handed over to the IO of the case. The hand-wash solution is also proved by PW17A Dr. Madhulika Sharma who has given FSL report regarding the solution of the hand-wash. The testimony of the witnesses could not be discredited in their cross-examination. Therefore factum of recovery of bribe amount of Rs. 500/- from the accused is also established.
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 46/62
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28). The above observation on the commission of offence is further found support from the testimony of PW1 who has identified his signature on the complaint Ex.PW1/A as well as pre-raid Ex.PW1/B and post raid document Ex.PW1/C. In the present case on some points the witness has resiled from his previous recorded statement, therefore, Ld. Addl. PP sought permission to cross examine this witness despite the fact that witness has resiled from his previous statement, it is well settled principle of law that has been founded through various judgement of Hon'ble Supreme Court and High court that testimony of such witness cannot be discarded totally. Reliance can be placed in support of the case of the prosecution on the material aspect on which the testimony of such witness has supported FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 47/62
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the case of the prosecution.
29). It has been argued by Ld. Defence counsel that the audio recording which has been produced by the prosecution during the course of the prosecution evidence is not reliable source of evidence due to the reason that original recording device has not been produced. The certificate u/s 65B of the Indian Evidence Act was given in the year 2016 whereas the FIR in the present case was registered in the year 2008, therefore, there is a gap of as many as 8 years in issuing the 65B certificate. It has been further argued that the recording are not admissible in evidence in view of the judgment of Hon'ble Supreme court in P.V. Anwar's Case, Ankur Chawla's case.
It has been further stated that as per section 45 A of Indian Evidence Act and 79A of Information Technology Act, the FSL which has FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 48/62
- : 49 : -
given the report of the audio recording is not competent enough to give such report, therefore, render the same as inadmissible piece of evidence.
30). PW1 has proved the factum of recording of conversation between complainant and the accused. In his written complaint itself complainant has mentioned about accompanying by a police official at the time when Rs.500/- was paid as bribe to the accused through a boy present alongwith him. In his chief examination PW1 has stated that the police official who accompanied him to area of PS Narela got the conversation recorded which was taken place between him and the said police official.
Thereafter, in the cross-examination by Ld. Addl. PP, he has shown his ignorance about the transaction appearing in the recording in the CD FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 49/62
- : 50 : -
Ex. P1/P8 and written transcript thereof Ex. PW1/F. He has further denied that on 20.5.11 he himself had visited the FSL and his voice sample was taken by the FSL expert in audio cassette. During the course of examination of PW1, it was observed that CD played in the laptop in the open court and voice in audio conversation recorded in the CD is clearly audible whereas PW1 has shown his ignorance about the entire conversation recorded played in the CD and he failed to identify any of the voice appearing in the digital files. Despite showing his ignorance on the content of the recording, still same is a reliable piece of evidence due to the fact that PW15 Sh. Mihir Jha being the panch witness has proved the factum of taking voice sample of complainant Sopmpal by FSL expert at FSL laboratory on 20.5.2011. He had signed the pullanda of the cassette. His own signature upon the same had also not been denied FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 50/62
- : 51 : -
by PW1.
Reliability of voice recording is further established by PW19 Ramesh Kumar Retired Inspector who witnessed the collecting voice of the complainant Sh. Sompal in FSL Rohini. Similarly, after PW 23 C.P. Singh Assistant Director FSL has proved the matching of voice contained in the CD with the sample voice of the complainant. And he deposed that Ex.P1 and Ex.S1 are probable voice of the same(Sompal). His detailed report in this regard is Ex. PW24/A. He has also examined the CD as well conversation contained therein as well as the audio cassette and after examination he opined that there was no indication of any kind of alteration in the audio recording contained in the CD. Therefore, there is no possibility of any alteration and tampering in the voice recording contained in the CD. Certificate 65B Ex.PW7/A is also there to establish the authenticity of recorded FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 51/62
- : 52 : -
conversation. Written transcription Ex.PW1/F is in consonance with the CD and containing direct material with respect to demand and acceptance of Rs.500/- through a boy. There is also an acknowledgement of Rs.2500/- by the accused HC Om Praksh prior to the raid. The defence failed to breach the testimony of these witnesses.
31). Although, only complainant PW1 has given sample of his voice but there is no sample voice which could lead to the conclusion that the conversation with the complainant contained in the CD is of accused. Since there is a refusal from the side of the accused in giving his ample voice and no plausible explanation to this respect has been given therefore an adverse inference can be drawn against him that the other voice contained in the CD was the only voice of accused Om Prakash. Moreover case of prosecution also found support from the testimony of PW7 Karnail Singh FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 52/62
- : 53 : -
who prepared the CD of the recording and then got the signed from panch witness, complainant and SI Ramesh PW4 in whose presence the CD was played by the IO.
32). So far as averment of Ld. Counsel that 65B was given after 8-9 years, I am of the view that in the Paras Jain vs. State of Rajasthan Judgement this position has already been clarified that 65B certificate can be given at any stage. Therefore, the certificate Ex.PW7/A given by Sh. Karnail Singh is an admissible piece of evidence and reliance can easily be placed upon the same.
33). So far as the averment of Ld. Counsel that FSL laboratory was not notified, report prepared by PW 23 Sh. C.P. Singh, is not admissible. On this point I am of the view that no FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 53/62
- : 54 : -
notification of the laboratory is not going to affect the report of an expert who is fully competent and having the requisite qualification to give such report. Nothing has been asked in his cross- examination by ld. Defence counsel that PW23 was having no requisite qualification of examining the CD and the voice contained therein on the date when the report Ex.PW23/A was prepared by him. Moreover he is a public servant who gave report while discharging his official duties, no doubt upon the report on said technical ground is not sustainable.
34). It has been averred by defence counsel that sanction order in the present case has been passed on the basis of incomplete documents. The CD and the documents were not perused by the sanctioning authority therefore the sanction order is illegal.
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 54/62
- : 55 : -
It is well settled law that the sanction is solemn and sacrosanct at which affords protection to the government servant against frivolous prosecution. The validity of sanction ultimately depends upon the entire material, relevant fact and evidence placed before the competent authority so that the competent authority has full knowledge of facts to take decision either to grant the sanction or deny the same in relation to the public servant against whom sanction is sought.
Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalized guidelines in that regard. Reliance is placed upon Prakash Singh Badal V. State of Punjab, (2007) 1 SCC 1.
Further reliance is placed upon CBI v. Ashok Kumar Aggarwal, (2014) 14 SCC 295 where Hon'ble Supreme Court has held FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 55/62
- : 56 : -
"prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by competent authority, adequate material for such grant was made available to the said authority".
In the present case, PW20 Sh. Autl Katiyar, Joint Commissioner of Police has been examined as the competent authority which accorded the prosecution sanction against the accused HC Om Prakash. This witness has stated that after having perusing the file and various documents annexed and upon being satisfied, the sanction order Ex.PW19/C to prosecute the accused HC Om Praksh was granted. The Sanction order states about the brief facts of this case alongwith the details of the perused material. The sanction was accorded on perusing the FIR, statement of witnesses U/s 161 CrPC, copy of transcription of conversation between complainant FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 56/62
- : 57 : -
and accused and FSL reports. Ld. Defence counsel failed to establish that the document which were not perused by him, were material enough to discard the sanction. Therefore, sanction order of PW20 being the competent authority does not suffer from any infirmity.
35). In the present case charge has been framed u/s 120B IPC readwith section 384 IPC and 7/13(2) PC Act and section 384 IPC, section 7/13 P.C. Act readwith section 120B IPC. So far as role of accused constable Jagbir is concerned, he has not been identified by PW1 in his testimony and he was also not present at the time of receipt of money. In his complaint Ex.PW1/A complainant has stated about his name being the person who had made the demand on the instruction of co-accused Om Prakash, a demand of bribe for disposing off the matter against him. But there is no FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 57/62
- : 58 : -
corroborating piece of evidence like testimony of RO, IO and other members of the raiding team unlike HC Om Prakash, who was identified by them to reach the conclusion that accused Om Prakash was the police official who had made demand of bribe and accepted the same. The only person who dealt with constable Jagbir was complainant himself and he has failed to identify in the court due to lapse of the time. In the testimony of PW 19 retired inspector Naresh Kumar, it has come out that he had seen the duty roster on 10.8.08 and 9.8.08 bearing the name of two Jagbir has been mentioned. Actually who was the concerned Jagbir whose name is mentioned in the complaint, was involved in the commission of the offence is not clear.
In such circumstances, accused constable Jagbir is entitled to the benefit of doubt for the want of evidence against him.
FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 58/62
- : 59 : -
Therefore, commission of offence by accused Jagbir under PC Act is not proved in view of above observation.
Consequently, in these circumstances, the charges u/s 120B IPC does not stand against both the accused persons.
36). So far as charges U/s 384 IPC is concerned, same deals with the punishment for extortion. From the testimony of prosecution witnesses the ingredients of extortion is also not proved as PW1 in his testimony has stated that demand of bribe made by accused Om Prakash is only to dispose off the complaint against him.
There is no clear evidence have come which shows that the demand was made by the accused by putting him under the fear of any injury and thereby, dishonestly induced him to pay bribe FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 59/62
- : 60 : -
under any fear. Therefore, charges U/s 384 IPC does not made out against the accused persons.
37). Therefore, in view of the above discussion, the prosecution has successfully proved that accused Om Prakash was working as Head constable in Delhi Police being the public servant; that he was assigned the complaint on PCR call of the niece of complainant; that there was any initial demand of Rs.3,000/- as bribe by accused Om Prakash from the complainant in order to dispose off the complaint against the complainant; that accused om Prakash demanded and accepted a sum of Rs.2,000/- from the complainant as bribe, thereafter, further demanded and accepted a sum of Rs.500/-; that accused Om Prakash had demanded and accepted a sum of Rs.500/- from the complainant at the time of raid; that accused Om Prakash consciously FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 60/62
- : 61 : -
accepted the bribe at the time of trap; that there was recovery of bribe amount of Rs.500/- from the accused Om Prakash.
38). In view of the above observations, case against accused constable Jagbir is not proved therefore he is acquitted from all the charges of commission of offence. Let bail bond u/s 437 A CrPC be furnished.
39). However, the case has been proved against accused HC Om Prakash.
Hence, I hold that the charges under PC Act are proved beyond any reasonable doubt.
Charges u/s 120B IPC and section 384 IPC are not proved against HC Om Prakash.
40). Accused HC Om Praksh is thus, held guilty of having committed the offence u/s 7 and FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 61/62
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13(1)(d) punishable u/s 13(2) of PC Act, accordingly convicted for the commission of aforesaid offence. Let he be heard on the point of sentence on the next date.
(SANJAY KHANAGWAL) Spl. Judge (PC ACT)-02/ACB:
Rouse Avenue Courts:New Delhi Announced in the open court on 25.4.2019 FIR NO. 27/08, CC No. 140/19, State Vs. HC Om Prakash & Another Page 62/62