Delhi District Court
Accused. He Relied Upon A Case Reported ... vs . Delhi on 31 March, 2010
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IN THE COURT OF SH. N. K. SHARMA, SPECIAL JUDGE
(PC ACT) - 02 : DELHI.
RC No.41(A)/2003
CC No. 41/2003
CBI
VS
BHAWAN SINGH MAAN, (SUBINSPECTOR),
S/O LATE SH. LAKHI RAM,
R/O 799, TIMARPUR, DELHI.
PERMANENT ADDRESS:
VILLAGE P.O. ALIPUR,
DELHI110036.
Date of Institution :08.09.2003.
Date of Arguments :18.03.2010
Date of Judgment :31.03.2010
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JUDGMENT
1. This judgment will dispose off the CBI criminal case referred to herein above filed by the CBI on 05.09.2003.
2. The facts in brief of the CBI case are that a written complaint was submitted by Sh. Vijay Kumar Goel S/O Sh. S. C. Goel, R/O H2, Mahendra Park, Delhi110033, dated 15.01.2003 wherein it was alleged that Bhawan Singh Mann, SI, PS Adarsh Nagar, Delhi110033, had demanded bribe of Rs. 10,000/ in the month of December, 2002 for releasing his sister Smt. Shashi Chauhan from police custody, who was arrested in a false land cheating case.
3. It was further alleged in the said complaint that B. S. Mann again on 15.01.2003 demanded Rs.2,000/ as first installment and threatened the complainant Vijay Kumar Goel that if bribe is not paid he shall file the challan/charge sheet 2 of 62 3 against complainant's sister.
4. The CBI registered a case and entrusted to Smt. Mridula Shukla, Inspector for verifications of the allegations and to lay a trap.
5. Thereafter, the raiding party was constituted and the services of two independent witnesses namely Ajay Kumar Mathur and Vivek Kumar, both Statistical Investigators from Sales Tax Department were procured and thereafter on their joining, pretrap formalities were commenced. The complainant produced an amount of Rs.2,000/ consisting of 3 numbers of GC Notes of Rs.500/ denomination each and 5 numbers of GC notes of Rs.100/ denomination each. The numbers of GC Notes were recorded in the handing over memo. Thereafter, in the presence of the two independent witnesses, GC notes were treated with the Phenolphthalein Powder and a demonstration of its chemical reaction with sodium carbonate was given to the 3 of 62 4 said witnesses. After treatment, the GC notes were again handed over to complainant, and the said GC notes were kept in the left side pant pocket of the complainant, with the instructions to hand over the tainted GC notes to the accused Bhawan Singh on his specific demand and not otherwise. Independent witness Sh. Ajay Kumar Mathur was directed to act as a shadow witness and to remain close to the complainant Vijay Kumar Goel and accused Bhawan Singh Mann and also to watch the transaction. The shadow witness was also directed to give the signal by scratching his head with his right hand on completion of transaction of bribe amount between complainant and accused B. S. Mann.
6. The pretrap proceedings were recorded in the handing over memo and the party comprising of CBI officials, complainant and two independent witnesses left CBI office for the office of the accused at PS Adarsh Nagar.
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7. On the way to the office of accused at PS Adarsh Nagar, complainant received telephone calls from the accused on his mobile phone and accused B. S. Mann directed the complainant to reach at the turning point of the road coming from PS Adarsh Nagar leading towards, Jahangir Puri, New Azadpur Mandi. When the trap party reached at Azadpur Traffic Signal crossing, the complainant alongwith the shadow witness were directed to proceed towards the turning point of the road coming from PS Adarsh Nagar leading towards Jahangir Puri and to contact accused B. S. Mann. Thereafter, when the trap party reached Azadpur Traffic Signal Crossing, the complainant spotted the accused wearing police uniform and standing near a Maruti Zen car at the turning point of the road coming from PS Adarsh Nagar, leading to Jahangir Puri, Near Azad Pur, Mandi. The complainant alongwith the shadow witness Ajay Kumar Mathur proceeded towards the car of the accused who by then 5 of 62 6 had taken the driver seat of his Maruti Zen Car. The complainant and the shadow witness were closely followed by other witness and CBI Officials led by Inspector Smt. Mridula Shukla and Inspector Sh.Jayant Kashmiri. During conversation, accused B. S. Mann demanded a sum of Rs.2,000/ from the complainant and on the specific demand of accused B. S. Mann, complainant took out tainted money and immediately handed over on the right hand of the accused. On this, the CBI trap party alongwith other witness rushed towards the accused as they were closely and directly witnessing the transaction. Immediately, after taking money, the accused apprehending trouble when seeing some people approaching towards him, threw the money which fell inside the car and tried to start the engine of the car. Inspector Sh. Jayant Kashmiri aborted the attempt of the accused to start the engine of the car by swiftly taking out the keys of the car and brought accused B. S. Mann 6 of 62 7 out of the car by holding his wrist.
8. Both the hands of accused B. S. Mann was caught hold by SI Prem Nath and constable Naresh Shoukin respectively. On confirmation by the complainant, shadow witness and Inspector Jayant Kashmiri that the accused B. S. Mann had thrown the bribe money from his right hand which fell inside the car, the other witness Sh. Vivek Kumar recovered the bribe money which had fallen underneath the right side of the driving seat and between the side gate of the car. The recovered GC Notes were tallied with number of GC Notes recorded in the handing over memo by the witness and found their serial numbers tallying with the number of GC Notes written in the handing over memo.
9. The washes of the right and left hand fingers of accused and floor carpet of accused's Zen car (area between driver seat and right side gate of the car) were taken. The 7 of 62 8 washes of both the hands of the accused and floor carpet of accused's Zen Car showed pink colour. The same were poured separately in three glass bottles and were sealed, marked and signatures of the witnesses were taken. The same were taken into police possession alongwith the tainted bribe amount and mobile phone instrument having mobile number 9811366626 vide recovery memo. These washes were sent to CFSL for expert opinion and CFSL vide their report no. CFSL2003/C0065 opined positive for the presence of Phenolphthalein Powder and sodium carbonate. The call print out details of the mobile phone of accused procured from M/s. Essar Hutchison showed that accused B. S. Mann had called the complainant at mobile number 9891295359 on 15.01.2003 at 10.22 am, 11.42 am, 12.12. pm and 12.49 pm.
10. Due to gathering of large number of people, post trap formalities were not completed at the spot. Hence, the 8 of 62 9 remaining proceedings were done in the CBI Office before the said independent witnesses.
11. Investigation revealed that accused B. S. Mann was the IO of DP case FIR no. 345/02 of PS Adarsh Nagar, which was registered on the complaint of Sh. Ved Prakash Aggarwal on the allegation that the partners of firm M/S. Moonbeam (India) Associates namely (1) Sh. Bhupinder Singh Chauhan husband of Smt. Shashi Chauhan, (2) Smt. Shashi Chauhan (3) Sh. Raj Bir Singh Sharma, (4) Smt. Sunita Sharma w/o Sh. Rajbir Singh, (5) Sh. Kishore Gandhi had cheated Sh.Ved Prakash Aggarwal by selling a plot of land which had already been sold to Smt. Lalita Aggarwal.
12. Investigation further revealed that accused B. S. Mann had demanded bribe of Rs.10,000/ from Sh. Vijay Kumar Goel in December, 2002 for releasing his sister Smt. Shashi 9 of 62 10 Chauhan, who was falsely implicated and arrested in the above said case and again on 15.01.2003 accused asked the complainant Sh. Goel to give first installment of Rs.2,000/ otherwise threatened to put up charge sheet against his sister Smt. Shashi Chauhan. The police file of said DP FIR no. 345/02 showed that only one accused namely Smt. Shashi Chauhan had been arrested without proper justification. Accused B. S. Mann had even not examined Smt. Lalita Aggarwal, who is referred in the said DP FIR as the person to whom the land was sold by the accused persons. The CD No. 03 dated 10.10.2002, of police file, referred that the anticipatory bail of Smt. Shashi Chauhan was dismissed but since then till 06.12.2002 (as per CD No. 7) when she was arrested B. S. Mann had made no attempts to arrest her. The investigation made by accused B. S. Mann does not reflect any evidence against Smt. Shashi Chauhan, which justified her arrest. The 10 of 62 11 facts emerged during investigation has established that B. S. Mann, SI, PS Adarsh Nagar, Delhi by abusing his official position by corrupt and illegal means had demanded and accepted illegal gratification from the complainant as a reward or motive for doing his official duties.
13. After obtaining the sanction from the competent authority, IO has filed present charge sheet for the trial of accused B. S. Mann, for the commission of offence punishable under Section 7 & 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988.
14. IO/ SI Amit Vikram Bhardwaj of the case has filed this charge sheet after obtaining necessary permission under Section 17 of Prevention of Corruption Act from the court of Sh. M. L. Sahni, the then Special Judge, Tis Hazari Courts, Delhi.
15. On appearance of the accused Sh. B. S. Mann, copies of charge sheet and documents relied upon by the CBI were 11 of 62 12 supplied to him.
16. Charges against the accused for his trial for the offences punishable under Section 7 and under Section 13 (2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, were framed.
17. In support of its case the CBI examined the following witnesses:
18. Sh. Vijay Goel, S/O Sh. S. C. Goel is examined as PW1, who is the complainant. Sh. Vijay kumar Goel was declared hostile by the prosecution as he resiled from his previous statement recorded under Section 161 Cr. P. C.
19. Sh. Sanjay Singh, DCP (NorthWest), Delhi is examined as PW2. He has stated that on 03.09.2003, he gave sanction for prosecution of accused B. S. Mann, SI, vide his sanction order Ex. PW2/A on the basis of material placed before him and after due application of mind.
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20. PW3 Sh. C. L. Bansal, SSO, GradeII, (Chemistry Division), has examined the parcels and gave his detailed report Ex. PW3/A. He has opined on chemical analysis that all the three sealed bottles gave presence of phenolphthalein powder and sodium carbonate.
21. Sh. Ajay Kumar Mathur, Statistical Investigator, was examined as PW4. He was the shadow witness but he was declared hostile by the prosecution as he resiled from his previous statement recorded under Section 161 Cr. P. C.
22. PW5 Vivek Kumar, Statistical Investigator, was the recovery witness. He was also declared hostile by the prosecution as he resiled from his previous statement recorded under Section 161 Cr. P. C.
23. PW6 Inspector Rajinder Bhatt, SHO, Adarsh Nagar, identified his signatures on letter Ex. PW6/A written to CBI. He deposed that vide this letter documents collectively Ex. PW6/B 13 of 62 14 mentioned therein were sent to CBI and FIR no. 345/02 was investigated by B. S. Mann.
24. PW7 Dr. Rajinder Singh, PSO (Physics) CFSL, New Delhi, deposed that he examined the filtrate of solution contained in the bottle and found that the filtrate had presence of fibre/dust. He proved his report Ex. PW7/A in this regard.
25. PW8 Inspector Mridula Shukla, CBI/ACB, Delhi, deposed that on 15.01.2003, FIR Ex. PW8/A, which was registered on the basis of complaint Mark PW1/A was entrusted to her.
26. PW8 further deposed that on the basis of the complaint and FIR, trap was organised under the supervision of Sh. D. K. Barik, Dy. SP. Two independent witnesses namely Sh. Mathur and Sh. Vivek, both from Sales Tax Department, ITO were called on in CBI office through duty officer. PW8 also deposed that in the presence of independent witnesses, all the 14 of 62 15 trap team members including, PW8, Sh. D. K. Barik, Sh. Jayant Kashmere and Sh. Prem Nath, SI and lower subordinate staff, the complaint of Mr. Goel was shown to them and they satisfied themselves about the genuineness of the complaint.
27. PW8 further deposed that thereafter the complainant produced Rs.2,000/ in the form of 3 GC notes of Rs.500/and 5 GC notes of Rs.100/ denomination each which were treated with phenolphthalein powder which was produced from Malkhana, ACB by Sh. Jayant Kashmere Inspector on her instructions, who demonstrated the chemical reaction which takes place between colourless solution of sodium carbonate and colourless phenolphthalein which turns pink when it is treated with sodium carbonate. Public witness Mr. Vivek was instructed to touch the powder treated notes and dip his fingers in the solution of sodium carbonate and on doing so the solution turned pink which was thrown away. Remaining phenolphthalein 15 of 62 16 powder was returned back to Malkhana. The powder treated notes were handed over to the complainant and he kept the same in his left side pant pocket.
28. PW8 further stated that the complainant was instructed to give the money to the accused on his demand or to any other person as directed by him. Another witness Mr. Mathur was directed to act as shadow witness to witness the bribe transaction and to overhear the conversation between the accused and the complainant. He was further directed to give a signal to the trap team by scratching his head with both his hands on the completion of transaction of bribe. All the pretrap proceedings were incorporated in the handing over memo Ex. PW1/B, which was prepared in the CBI Office. Thereafter, all the trap team members left the CBI Office around 12.45 PM on 15.01.2003 in CBI vehicle. Accused was calling time and again over the mobile phone of the complainant and complainant told 16 of 62 17 that the accused had called him at the crossing near PS Adarsh Nagar.
29. PW8 also stated that when they reached at the spot near the crossing, the vehicles were parked at some distance and the trap team members walked on foot towards the place where accused B. S. Mann was standing and they were actually following the complainant and the shadow witness. She further stated that since it was a crowded area near the bus stand, she was on the divider with Mr. Vivek, complainant was seen near Zen Car and Mr. Kashmere was able to cross the road. At that time, PW8 was not knowing B. S. Mann by face but the person was in Khaki Uniform with whom the complainant was talking and shadow witness was also nearby. Inspector Jayant Kashmere was also in the vicinity when the shadow witness turned, she understood that transaction has taken place and the person in Khaki Uniform sat in the Zen car and when he was 17 of 62 18 about to start the car, he was just surrounded by all of them and Mr. Jayant Kashmere immediately stood in front of his car and took out the ignition key. Mr. Mann was asked to come out of the car. The complainant told that he gave bribe money to B. S. Mann, which he has kept in his pocket, but they saw the money lying in between the seat and door of the driving seat of the car and that may be because on seeing many persons approaching the car, he might have thrown it there.
30. PW8 further deposed that on this she directed witness Mr. Vivek to collect the money from the floor of the car and thereafter he was asked to tally the number of the recovered money with the handing over memo. After checking, he informed that the recovered money was the same. As many persons gathered there and they were causing hindrance in their work, so the official vehicle which was a Mini Bus was brought at the spot from the other side of the road and further 18 of 62 19 proceedings were carried out in the bus. Hand washes of both the hands of the accused were taken in the separate solutions which turned pink. The solutions were transferred in separate glass bottles which were sealed. Paper slips were pasted on the bottles which were signed by the witnesses. Wash of the mat of the car of driving seat portion was also taken in separate solution which also turned pink and the same was also transferred and sealed in another glass bottle. Paper slip was also pasted on the bottle which was also signed by both the witnesses. Mr. D. C. Jain, the then SP was informed that trap had been successfully laid and he was requested to authorise some other team to carry out house search of the accused B. S. Mann. Accused was arrested vide arrest memo Ex. PW4/E. All the post trap proceedings were recorded in the recovery memo Ex. PW1/C. A lot of crowd gathered at the spot, as such the recovery memo was prepared in the ACB, CBI office, though 19 of 62 20 the proceedings were conducted at the spot. Site plan Ex. PW4/B and sketch of car Ex. PW4/C were also prepared at the spot. On the next day, investigation of the present case was transferred from her (PW8) to Inspector Amit Vikram.
31. PW9, Sh. Deepak Gupta, has deposed that on 25.03.2003, he was working as Nodal Officer with Hutison Essar Cellular Services. On that day, he produced certain record which was seized by IO of the case vide Memo Ex. PW9/A. The record contained the application form, residence proof and print outs of cell phone number 9811366626, Ex. PW9/B1 toB7.
32. PW10 Inspector Amit Vikram Bhardwaj, has deposed that on 16.01.2003, he was working as SI CBI/ACB, Delhi and vide order of Special Judge, he was permitted to investigate the case. During investigation, he collected documents Ex. PW9/B1 to B7 from Hutison Essar Services Ltd. vide memo Ex. PW9/A. He also collected documents Ex. PW6/B attested by 20 of 62 21 SHO, in respect of case FIR no. 345/2002 from PS Adarsh Nagar. He also got done the still photography of the car from which tainted money was recovered on the day of trap. The photography was conducted in the presence of independent witnesses and he prepared memo Ex. PW10/A in this respect.
33. He has further deposed that during the investigation, he collected the report of CFSL, recorded statement of witnesses correctly without any addition or deletion. He obtained sanction for prosecution of accused from the competent authority and filed charge sheet in the Court.
34. After conclusion of prosecution evidence on 04.05.2005, statement of accused u/s 313 Cr.PC was recorded on 27.05.2005. All the incriminating evidence produced on the record was read over/put to the accused. He denied most of the evidence. Thereafter, the matter was fixed for final arguments.
35. On 27.07.2006, prosecution has moved an application 21 of 62 22 under 311 Cr. P. C. for examination of PWInspector Jayant Kashmiri, CBI/ACB, Delhi. Same was allowed vide order dated 27.07.2005. The case was fixed for 12.10.2006 for examination of PW Inspector Jayant Kashmiri, CBI/ACB, Delhi.
36. Statement of PWJayant Kashmiri, CBI/ACB, Delhi was wrongly recorded as PW9. He is infact PW11. He has deposed that he joined the trap proceedings with the IO/Inspector Mridula Shukla and was there throughout with her.
37. PW11 Inspector Jayant Kashmiri, CBI/ACB, Delhi, was examined, cross examined and discharged on 13.12.2008. The matter was again listed for statement of accused under Section 313 Cr. P. C. on 09.01.2009 but the same was recorded on 26.02.2009. All the incriminating evidence produced on the record was read over/put to the accused. He denied most of the evidence and said that he was innocent and that on the false complaint of Sh. Vijay Kumar Goel, he has been made to suffer 22 of 62 23 a trial after being in custody for some days and that the government servants who claimed to have participated in the proceedings have not stated correct facts because of fear of CBI which included the CBI Officials also.
38. After conclusion of evidence, I heard final arguments of Learned PP for CBI and Learned Defence Counsel of the accused and perused file including ruling cited by learned Public Prosecutor for CBI and learned Defence counsel.
Sanction For Prosecution From the Competent Authority.
39. It would be appropriate and relevant to reproduce provisions of Section 19 of the Prevention of Corruption Act, 1988. These provisions are as under: "Previous Sanction necessary for prosecution (1) No Court shall take cognizance of an offence punishable under Section 7, 11, 13 and 15 alleged at have been 23 of 62 24 committed by a public servant, except with the previous sanction :
(a) *****
(b) In the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or by the sanction of the State Government, or that Government; **
40. PW2 deposed that he was the competent authority for granting sanction for prosecution of the accused and that after perusing the documents and statements of the witnesses put up before him alongwith the file and after applying his mind, he awarded sanction vide Sanction Order Ex. PW2/A. Nothing material has come on record to shake the testimony of the above witness.
41. In view of the discussion and evidence mentioned herein above this point is decided in favour of the CBI and 24 of 62 25 against the accused and it is held that the prosecution obtained valid sanction for prosecution from the competent authority for trial of the accused.
GRATIFICATION AND CRIMINAL MISCONDUCT.
42. It would further be appropriate and relevant to reproduce provisions of Sections 7, 13 (1) (d) and 13 (2) of the Act. These provisions are as under:
"7. Public Servant taking gratification other then legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification, whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government 25 of 62 26 Company referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less then 6 months but which may extend to 5 years and shall also be liable to fine."
"13. Criminal Misconduct by a Public Servant.
(1) A Public servant is said to commit the offence of criminal misconduct;
(a) to (c) ..........
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or ***** (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which 26 of 62 27 shall not be less then one year but which may extent to 7 years and shall also be liable to fine."
43. In order to convict the accused, for the above mentioned offences, prosecution has to prove:
(i) that accused was public servant on the date of commission of alleged offences;
(ii) that by abusing his position as public servant, he demanded Rs.2,000/ as gratification/bribe from the complainant Vijay Kumar Goel;
(iii) that by abusing their position as public servant, he accepted Rs.2,000/ as gratification/bribe from complainant Vijay Kumar Goel; and
(iv) that gratification/bribe was taken as a motive or reward for releasing of his sister from land cheating case.
That Accused was public servant on the Date of Commission of alleged offences.
44. PW2 Sh. Sanjay Singh, DCP, North West, has stated that he was the competent authority to take disciplinary action against SubInspectors of Delhi Police. It is an undisputed fact 27 of 62 28 that the accused B. S. Mann at the time of the commission of alleged offence, was Sub Inspector, posted with Delhi Police and therefore, was a public servant.
That by Abusing his position as public servant, accused demanded and accepted Rs.2,000/ as Gratification/bribe from complainant Vijay Kumar Goel.
45. For the sake of convenience and to avoid repetition of discussion and evidence, points nos. (ii) and (iii) are dealt with together.
46. Learned Public Prosecutor has argued that the evidence in total has to be considered to find out the guilt of the accused. He relied upon a case reported as Sat Paul Vs. Delhi Administration, AIR 1976 Supreme Court 294, wherein it was held by Hon'ble Supreme Court that : "From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is 28 of 62 29 crossexamined and contradicted with the leave of the court by the party calling him his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such crossexamination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.******"
47. Learned Public Prosecutor has further argued that in case prosecution case suffers from inconsistencies or discrepancies, the main thing which is to be seen is whether these inconsistencies, etc. go the root of the matter or pertains
29 of 62 30 to insufficient aspect thereof.
48. Learned Public Prosecutor has further argued that even if the testimonies of complainant and independent witnesses are discarded then also conviction can be based on the basis of testimony of police officers. He relied upon a case reported as Hazari Lal Vs The State (Delhi Administration), AIR 1980 Supreme Court 873. It was observed there in that : "Where the evidence of the Police Officer who laid the trap is found entirely trustworthy, there is no need to seek any corroboration. There is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstance of another case the Court may unhesitatingly accept the evidence of such an Officer. It is all a mater of appreciation of evidence and on such matters there can be no hard and fast rule, nor there be any precedential guidance."
49. Learned Public Prosecutor has also argued on the 30 of 62 31 point of presumption and he relied on a case reported as N. Narsinga Rao Vs State of Andhra Pradesh, 2001, Supreme Court cases 691, wherein it was held by the Hon'ble Supreme Court that : "the only condition for drawing the legal presumption under Section 20 of PC Act 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."
50. Learned Public Prosecutor has also relied on the judgment of the Hon'ble Supreme Court in case State of U. P. Vs Dr. G. K. Ghosh, AIR 1984, Supreme Court 1453, wherein it has been observed that :
"In case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witness turn hostile or are found not to be independent. When besides such evidence there is circumstantial 31 of 62 32 evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case. The Supreme Court allowed the appeal. The order of confiscation cannot, therefore, be held to be without jurisdiction."
51. Learned Public Prosecutor has argued on the point of the hostility of material witnesses and he has relied on a case of Prakash Chand Vs State (Delhi Administration), AIR 1979 Supreme Court 400, Hon'ble Supreme Court held that : "The witnesses who were treated as hostile by the prosecution were confronted with their earlier statements to the police and their evidence was rejected as it was contradicted by their earlier statements. Such use of the statements is permissible under Section 155 Evidence Act and the Proviso to Section 162 (1) Cr. P. C. read with Section 145 Evidence Act."
52. He has further relied on the case of State of Kerala Vs M. M. Mathew, AIR 1978 Supreme Court 1551, Hon'ble Supreme Court held that: "The courts of law have to judge the evidence before 32 of 62 33 them by applying the well recognized test of basic human probabilities. The evidence of the investigating officers can not be branded as highly interested on ground that they want that the accused are convicted. Such a presumption runs counter to the well recognized principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and can not be discarded merely on the ground that being public servants they are interested in the success of their case."
53. On the other hand, the learned defence counsel has argued that the complainant deposing as PW1 did not support the charge relating to motive for which the accused B. S. Mann had been charged as having demanded bribe. He further argued that PW1 was not declared hostile on this account and no suggestion was put to him to support such motive as reflecting in the charge. The learned defence counsel has drawn the attention of the court to the testimony of PW1 in 33 of 62 34 examination in chief wherein he interalia deposed that his sister Smt. Shashi Chauhan had no case but her husband was involved in a case in which police officials used to visit her house for interrogation and she used to feel harass and that it was because of this reason that she complained to PW1 who visited the police station 23 times but finding that no hearing was being given to him by the officials of the police station, he was advised to approach CBI Office, so that he could be heard by the police.
54. The learned defence counsel has also drawn the attention of the court to the cross examination of PW1 by learned Public Prosecutor on his turning hostile wherein he denied the suggestions that after the talks at portion G to G, B. S. Mann extended his right hand and he placed the bribe amount of Rs.2,000/ in his right hand and after taking the same from him in his right hand, he suddenly threw the bribe money 34 of 62 35 which fell into the car itself.
55. The learned defence counsel has also drawn the attention of the court to the cross examination of PW1 conducted by him wherein PW1 has interalia deposed that at the gate of the Police Station, he asked some police officials as to where is B. S. Mann as he had to meet him and the said police official pointed out towards the police official wearing uniform standing near Maruti Zen Car saying that he was B. S. Mann and that on spotting B. S. Mann he rushed towards him apprehending that he might go away and that when he reached near B. S. Mann, he had already taken the driving seat in the car and that he attempted to stop him and in the process, he threw the money in the car and that some of the GC notes fell down in the car and some of them fell outside the car and that at the same time, CBI Officials had reached on the spot and apprehended B. S. Mann. Therefore, according to the learned 35 of 62 36 defence counsel, PW1 a prime witness in the case did not support the prosecution story at all and from his testimony it was apparent that accused B. S. Mann had not received any gratification/bribe with his own hands as alleged and as such the prosecution miserably failed to prove its case regarding the motive of demand, pretrap demand, demand and acceptance of money on the spot and recovery of money from the accused B. S. Mann, hand washes and other post trap formalities.
56. The learned defence counsel has further argued that even PW4 and PW5 did not say anything about such motive of alleged demand. He further argued that the records of FIR no. 345/02, would show that Smt. Shashi Chauhan, the sister of the complainant Vijay Kumar Goel, was arrested on 06.12.2002 and was released on court bail on 17.12.2002. Therefore, according to the learned defence counsel, since as on 15.01.2003 Smt. Shashi Chauhan was already on bail, there was no question of 36 of 62 37 the accused demanding bribe for getting her release. He further argued that even in her examination in chief, PW8 confirmed and in cross examination she volunteered that money was demanded for not mentioning the name of Smt. Shashi Chauhan as accused in the challan. Therefore, according to the learned defence counsel, the prosecution has failed to prove its charge that the accused B. S. Mann demanded and accepted money for releasing Smt. Shashi Chauhan from custody.
57. Learned defence counsel has further argued that even the official formalities of alleged pretrap proceedings, preparation of handing over memo prior to trap, meeting of accused with complainant and demand and acceptance of money and apprehension of accused at the spot, was not proved as PW4 in his testimony has denied of having seen or heard the demand of money on the part of the accused or transaction of money change. As per the defence counsel, even 37 of 62 38 the alleged hand washes were purported to have been taken does not reveal that whether it was of both hands or of one hand. It has further been argued that even the alleged recovery memo Ex. PW1/C was not prepared at the spot but in the CBI Office and that all writing work was done in the CBI Office after their return from PS Adarsh Nagar. Learned defence counsel has further argued that PW5 in his testimony has categorically confirmed that he was asked to bring CBI Bus and when he reached there he found that accused was apprehended and that he was asked to pick up GC notes and to compare their numbers with the numbers already noted down on the piece of paper. He also pointed out to the cross examination of PW5 wherein he has admitted that Ex. P5 to P7 was signed by him in CBI Office and that all washes were white colour liquid and that when he reached the spot, the accused was standing outside the car and was surrounded by CBI Officials and that 38 of 62 39 voice recording instrument was used in the trap.
58. The learned defence counsel has further argued that PW8 testified that it was when the shadow witness turned that she understood that the transaction had taken place and that by that time the person in khakhi uniform had sat in the Zen and when he was about to start the car, he was surrounded by the CBI officials. According to the defence counsel, the presumption of the transaction having taken place merely on the turning of the shadow witness has to be analyzed on the basis of the testimony of the shadow witness i.e. PW4, who on being cross examined by learned Public Prosecutor after turning hostile answered that as the complainant and the accused were very close to each other, from a distance he could only see the GC notes being flown up but could not see whether it was done by the complainant or by the accused. Therefore, PW4 had not seen any alleged transaction having taken place and as such 39 of 62 40 the so called presumption in the mind of PW8 about the transaction having been completed and the accused B. S. Mann being apprehended by the CBI Officials after completion of the transaction is a figment of her imagination and no credibility can be attached to it.
59. Learned defence counsel has also pointed out an important aspect according to him that as per the alleged plan of the trap, the shadow witness was supposed to scratch his head with his right hand on seeing the transaction being completed. However, in none of the testimony of the prosecution witnesses, any signaling in the above manner has been stated and therefore, even as per the prosecution it is an admitted case that no signal was given by the shadow witness.
60. Learned defence counsel has further pointed out that the original complaint of the complainant at the time of recording of testimony of PW8 Inspector Mridula Shukla had not been 40 of 62 41 placed on record by the prosecution.
61. Learned defence counsel has drawn the attention of the court on the testimony of PW10 who was summoned with the Cell phone records and who in his cross examination admitted that there was no document on the judicial file to show that phone number 9811366626 had been seized from the person of the accused and that PW10 admitted that as per Ex. PW9/B7 the said phone had been used by its holder upto 3.27 PM on 15.01.2003 though as per the prosecution story the accused who was alleged to the holder of the said phone had been already arrested at 1.15 PM on 15.01.2003 and the mobile phone had been seized from him by that time. Therefore, according to the learned defence counsel the CBI has failed to prove its case regarding the seizure of the phone from the person of the accused.
62. According to the learned defence counsel, from Ex.
41 of 62 42 PW1/A it transpired that the complainant knew the IO personally, however, as per the testimony of PW1, he had called the counsel of his sister to know the name of the IO and that he had inquired about the accused from the police officials present at PS Adarsh Nagar and on being pointed towards the accused by one of the said police officials, he had proceeded towards him was sufficient in itself to belie the entire case of CBI.
63. According to the learned defence counsel, the another glaring evidence to smother the entire case of CBI was the fact that the protagonist of the whole story i.e. the complainant himself has categorically testified that he threw the money on to the car of the accused to stop the accused and that he had been advised to approach the CBI so that he could be heard by the police which therefore, proves beyond reasonable doubt that money was neither demanded nor accepted by the accused.
42 of 62 43 This fact according to the learned defence counsel has not been repudiated by any witness of the CBI and that even the relevant public witness deny of having seen or witnessed any actual demand and acceptance of money or transaction of money between the complainant and the accused.
64. The learned defence counsel has then argued that the testimony of these witnesses if read and understood in the context in which it has been made would in itself raise a big question mark on the veracity and authenticity of all the documentation work done by the CBI and that the said documents does not in any manner bring home the guilt against the accused.
65. The learned defence counsel therefore, submits that there is lot of credibility and truthfulness in the statement of the accused recorded under Section 313 Cr. P. C, which goes further not only to prove his innocence but to further prove the 43 of 62 44 fact that the accused has infact been a victim of a conspiracy hatched between the complainant and CBI Officials whose patronage the complainant was enjoying so that he could exert pressure on the police officials and manage whatever he desired as to be the fate of his sister.
66. The learned defence counsel has further argued that it was unnecessarily or uncalled for on the part of the CBI to express their view regarding the merits of the investigation as regards FIR no. 345/02 particularly when the challan was still to be filed and the case was still to reach to its logical conclusion through process of law. According to the learned defence counsel this attempt and exercise on the part of the CBI is merely to paint the accused black and to prejudice the mind of the court so that the CBI could succeed in getting through in nailing the accused in the manner in which they have done.
67. The learned defence counsel has emphasized 44 of 62 45 vehemently on the point that the CBI during the course of trial became aware of the fact that its entire strategy was failing and therefore, in an endeavour to fill up the lacuna they sought to bring PW11 into the witness box at a much belated stage when the statement under Section 313 Cr. P.C of the accused had already been recorded. This attempt however, has failed to prove the prosecution story and rather has strengthened the fact of the accused being innocent in as much as PW11 failed to explain that when according to him the mobile phone was not found in the possession of the accused at the time of his arrest then how was it presumed that he was the holder of the said phone when even as per PW11 what was recovered from the person of the accused B. S. Mann on personal search was a purse and a handkerchief which being of no consequence was returned to him.
68. The learned defence counsel has further drawn the 45 of 62 46 attention of the court to the fact that it was PW11, the complainant and the shadow witness who had informed PW8 Ms. Mridula Shukla about what had happened.
69. The learned defence counsel has also drawn the attention of the court to the further testimony of PW11 where he admitted that after reaching the CBI Office at about 4 4.15 PM, recovery proceedings were conducted there and recovery memo was prepared and handing over memo Ex. PW1/B and recovery memo Ex. PW1/C were prepared in the CBI Office and being the impression of the CBI Seal which was a brass seal of the year 2002 was used to register the case against the accused in the year 2003 and that only the site plan Ex. PW4/B was prepared at the spot though he denied the suggestion that the same was also prepared in the CBI Office and he further denied the suggestion that Ex. PW4/B and Ex. PW4/E were falsely prepared.
46 of 62 47
70. The learned defence counsel has also drawn the attention of the court to the fact that PW11 admitted in his testimony that Ex. PW1/A was a photocopy and that it did not reflect any endorsement by SP to the effect thereby directing registration of FIR/RC and that it contained an endorsement at point B bearing the signatures of SP. He further pointed out that PW11 testified that Mark PW1/A was the photostate copy of Ex. PW1/A and that it was not made by him nor in his presence and that the endorsement of the SP at point A on Ex. PW1/A was meant for crime clerk and as per the said endorsement the directions had been issued to put it up on file please.
71. The learned defence counsel has further pointed out that PW11 was not aware about the fact whether any requisition for phenolphthalein Powder and brass seal was made in the CBI Malkhana.
72. The learned defence counsel while arguing on the 47 of 62 48 issue that evidence of demand of money is essential in a case under Section 7 read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 which is essentially lacking in the present case, the ratio of the following judgments clearly establishes that in the absence of proof of demand the question of raising presumption under Section 20 would not arise: i. 2002 (2) Crimes 267 (SC); (3 Judges Judgment); Subhash Prabhat Sonvane Vs. State of Gujrat. ii. 2009 (VII) AD (SC) 117; A Subair Vs. State of Kerala (Paras 1022) iii.VI (2009) Supreme Law Times 439 (SC); State of Maharashtra Vs D. L. Rao Wankhede (Para 15) iv.2009 (2) LRC 93 (SC), C.M. Girish Babu Vs. CBI Cochin. (Paras 16 to 20) v. AIR 2007 SC 489; (Para 24); V. Venkata Subbarao Vs State.
73. The learned defence counsel in order to highlight on the settled legal proposition according to him that mere recovery of tainted money divorced from circumstances under which it is 48 of 62 49 paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable and he has relied on the following judgments: i. JT 2005 (12) SC 505; Union of India Vs. Purnandu Biswas. (Para 21 to 28) ii. 124 (2005) Delhi Law Times (Delhi High Court) 371; L. K. Jain Vs State through CBI.
iii.(1974) 4 Supreme Court Cases 725; Suraj Mal Vs. State (Delhi Admn.) iv.(2001) 1 Supreme Court Cases 691; M.
74. The learned defence counsel has relied on the following judgments to show that onus of proof lying upon the accused is to prove his case by a preponderance of probability and that as soon as he succeeds in doing so the burden shifts upon the prosecution which still has to discharge its original onus i.e of establishes its case beyond reasonable doubts which never shifts.
i. 1966 (3) Supreme Court Reports 736;
49 of 62 50 Jhangan Vs State.
ii. 2008 (9) SCALE 691; Noor Aga Vs. State of Punjab.
iii.2009 (7) SCALE 757; Jayendra Vishnu Thakur Vs. State of Maharashtra & Anr.
iv.2009 (2) Law on Reported Cases 93 (SC);C. M. Girish Babu Vs CBI.
75. The learned defence counsel has tried to develop the argument that as per the settled precedents the rationale of cross examining any witness brought by the prosecution who has turned hostile and confronting him with his earlier statement in fact intends to show that the witness is capable of making two different statements about transpiring of a particular event and testimony of such witness can not be relied upon. He has cited the following judgments in support of his such proposition.
i. AIR 1971 SC 1408; Suraj Mal Vs. State of
Delhi.
ii. AIR 1976 SC 294; (Para 27, 45, 51) Sat Paul Vs State (Delhi Admn.) 50 of 62 51 iii. AIR 1979 SC 1191; Pannalal Damodar Rathi Vs. State.
iv. AIR 2006 SC 2242; Sunny Kapoor Vs. State. v. 2009 (2) Law on Reported Cases 93 (SC); C. M. Girish Babu Vs. CBI.
76. The learned defence counsel in order to show that the money recovered from the car which had fallen down either inside or outside the car could not be turned as recovery in the true legal sense of the term as per the ratio laid down in the following judgments: i. AIR 1992 SC 644; Ayyaswami Vs. State of Tamil Nadu.
ii. AIR 1995 SC 2178; M. K. Harshan Vs. State.
iii. AIR 2000 SC 3377; Meena W/O Balwant Hemke Vs. State of Maharashtra.
77. I have considered the entire evidence of the prosecution as well as both the statements of Accused recorded under Section 313 Cr. P. C. and the rival submissions on merits by the respective learned Public Prosecutor and learned 51 of 62 52 Defence Counsel.
78. Before adverting to the merits of the case, it would be necessary to refer to the charge framed against the accused. The first part of the charge is a demand of Rs.10,000/ by the accused from the complainant for a motive or reward for releasing his sister Smt. Shashi Chauhan, who was arrested in a land cheating case from custody and in furtherance thereto on 15.01.2003 the demand of the first installment of Rs.2,000/ was paid from the complainant and accepted on the same day thereby committing the offence punishable under Section 7 of the Prevention of Corruption Act, 1988.
79. Therefore, it has to be seen whether as on 15.01.2003 there was any occasion for the complainant to have approached the accused B. S. Mann for a favour of the nature as alleged since it is the existence of the favour which could have given rise of possibility of demanding illegal gratifications to fulfill the 52 of 62 53 favour. The perusal of the first charge shows that the favour being asked for by the complainant on 15.01.2003 for release of his sister from judicial custody. The undisputed position from the documents and evidence on record is that as on 15.01.2003 the sister of the complainant already stood released from judicial custody on bail. Therefore, the favour can not be said to be existing on the date i.e. 15.01.2003 when the demand payment of first installment of the bribe was purported to have been made and accepted. At the threshold itself the first ingredient of the first charge stands dissatisfied.
80. Now adverting to the demand and acceptance of the first installment of Rs.2,000/ of the bribe amount, it has to be seen from the evidence on record whether such demand was made and the demand was tendered and was accepted. My earlier discussion puts a big question mark on the occasion to make a demand for bribe as no motive or reward could be 53 of 62 54 attributed in the absence of existence of any favour as alleged. However, I considered it necessary to delve into aspect of tendering of the demanded amount and acceptance of the same. In this regard, at the first instance, the testimony of the complainant requires to be carefully scrutinized.
81. A careful scrutiny of the testimony of the complainant as PW1 would show that he has interalia testified during cross examination by the Learned Defence Counsel that when he had already crossed the road, the shadow witness had not crossed the road and at the gate of the police station PW1had asked some police officials as to where is B.S. Mann as he had to meet him and the said police official had told him that the police official wearing uniform standing near Maruti Zen Car was B.S. Mann and that thereafter on spotting B. S. Mann, he rushed towards him as he was apprehending that B. S. Mann might go away and that till the time he reached near B. S. Mann, he had 54 of 62 55 already taken the driving seat of the car and that PW1 tried to stop him and in the process he threw the money in the car with the result that the some of the GC notes fell down in the car and some of them fell outside the car and that at the same time, CBI Officials reached at the spot and apprehended B. S. Mann.
82. PW1 had turned hostile and was cross examined by the learned Public Prosecutor for CBI, however, in his cross examination, PW1 was given a suggestion which he denied that when he was proceeding towards B. S. Mann, Ajay Kumar, witness was accompanied him who was asked by B. S. Mann to go. PW1 categorically denied the suggestion that B. S. Mann extended his right hand and he placed the bribe amount of Rs. 2,000/ in his right hand and after taking the same from him, he suddenly threw the bribe money which fell inside the car itself. If the above testimony of PW1 is read alongwith the testimony of PW4 Ajay Kumar Mathur, the shadow witness, it would be 55 of 62 56 apparent that there was no transaction of demand and acceptance. According to the prosecution story it was the shadow witness who was the first person who could have seen the transaction of exchange of money from the hand of the complainant into the hands of the accused and that it was on his signaling that the raiding party was to apprehend the accused at the spot.
83. A perusal of the testimony of PW4 would however, show that according to him when he and the complainant were standing near the divider, he was informed by the complainant that B. S. Mann was standing across the road and that Sh. B. S. Mann then waived at them and PW4 then stopped there as it was the first incident and that the complainant by that time had cross the divider and that it took PW4 sometime to cross the road because of moving traffic and that when he tried to cross the divider the other trap team members also joined him and 56 of 62 57 that the accused who was in the car was stopped by the team members and the complainant was standing near the window of the car. Even, while PW4 was being cross examined by learned Public Prosecutor for CBI after being turned hostile, the question put to the witness was that whether it was correct that while he was standing at the signal, he had seen the complainant talking to the accused and that he had also seen the accused throwing some currency notes which instead of falling outside car, fell inside the car. Though PW4 answered this question saying that he had only seen the GC notes being flown up but he could not see whether it was done by the complainant or the accused, however, the important thing to be noted is that even as per the CBI the shadow witness i.e. PW4 had not seen the complainant taking out money and handing it over to the accused and the accused accepting the same from his right hand. Therefore, in the light of testimony of PW4, the 57 of 62 58 testimony of PW1 to the effect that he had thrown the money inside the car of the accused can not be brushed aside lightly. Therefore, the CBI failed to conclusively prove the fact that the alleged demanded money was tendered by the complainant to the accused and the same was accepted by the accused. The GC notes being discovered inside the car would then be of no consequence since it was because of the fact that the complainant had thrown the said notes towards the car of the accused with the result that some of the GC notes had fallen inside the car. This, therefore, by no such of imagination would be construed to imply that the accused had accepted the bribe money from the complainant or that the complainant had even attempted to actually hand over the alleged bribe money to the accused.
84. From my above discussion, it is abundantly clear that the first part of the charge does not prove against the accused 58 of 62 59 B. S. Mann.
85. Adverting to the second part of the charge framed against the accused which states that the accused being a public servant abused his official position or otherwise by corrupt or illegal means obtained pecuniary advantage for himself to the tune of Rs.2,000/ from the complainant and thereby committing the offence punishable under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988. In answer to this part of the charge against the accused, the conclusion arrived by me as regards the first part of the charge would itself rendered the second part of the charge having not been proved. Since I have already held as above that the charge of demand and acceptance of bribe by the accused with the motive or reward does not stand proved, therefore, since this essential ingredient is lacking, the offence against the accused though being a public servant as per 59 of 62 60 provisions of Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 can not be said to be made out. The accused therefore, deserves to be discharged and therefore he is acquitted.
86. Before parting I deem it necessary to hold that once from the evidence and documents placed on record , the charge against the accused does not stand proved, the official formalities, documentation and all pretrap and posttrap formalities completed by the CBI and discussed by them in their evidence is of no consequence as the relevancy of the same would have been if there would have been even an iota of evidence to show that demand of bribe was made with the motive or reward and the said demand was tendered and accepted and the accused would have been apprehended on having accepted the demand and that the tainted money would have been recovered from the accused pursuant to his 60 of 62 61 acceptance. This aspect having been not proved at all, everything else becomes immaterial and can be said to be nothing but a mere paper work being of no avail.
87. The legal precedents relied upon by the prosecution would be no help to them since the same are not applicable to the peculiar facts and circumstances of the present case where the essential ingredients like demand of bribe for a motive or reward, payment and acceptance of demand is totally lacking. ORDER
88. Consequent upon decision on most of the points in favour of accused B. S. Mann and against the CBI, it is held that prosecution has not succeeded in proving all the ingredients of the offence punishable under Section 7 as well as Section 13 (2) read with Section 13 (1) (d) Prevention of Corruption Act and the prosecution has failed to successfully prove that the accused B. S. Mann demanded a bribe of Rs.2,000/ on 61 of 62 62 15.01.2003 for a motive or reward for releasing from custody, the sister of the complainant and tainted money of Rs.2,000/ was accepted by him in the presence of PW4 and that the accused abused his official position as public servant and obtained pecuniary advantage of Rs.2,000/.
89. Therefore, accused B. S. Mann is acquitted of the substantive offences punishable under Section 7 as well as Section 13 (2) read with Section 13 (1) (d) Prevention of Corruption Act.
90. Bail bond of the accused stands cancelled after the expiry of period of filing of an appeal, if any and surety stands discharged. File be consigned to record room. ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 31.03.2010.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 , DELHI 62 of 62