Delhi High Court
Dev Raj Arora vs State(Thr. Cbi) on 4 January, 2012
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No. 301/1999
% Reserved on: 29th November, 2011
Decided on: 4th January, 2012
DEV RAJ ARORA ..... Petitioner
Through: Mr. R.M. Tewari, Advocate
versus
STATE(THR. CBI) ..... Respondents
Through: Mr. Narender Mann, Spl. PP for CBI.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By this appeal, the Appellant lays a challenge to the judgment dated 3rd June, 1999 whereby the Appellant has been convicted for offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (in short the „P.C.Act‟) and the order dated 3rd June, 1999 directing him to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.5000/- and in default of payment of fine to undergo further Rigorous Imprisonment for a period of six months on both counts.
2. Learned counsel for the Appellant contends that Inspector Ved Prakash was the trap officer as well as the investigating officer. He prepared the handwriting memo, rough site plan and personal search memo. He also recorded the statement of recovery witness and the Complainant Sanjay Kohli and Jagdish Chander. The independent witnesses of the transactions Crl.Appeal 301/1999 Page 1 of 6 Ishwar Singh, AFO, DESU and S.C.Bhatia, Office Supdt., DESU were deliberately not examined. The Appellant moved an application dated 10 th September, 1999 praying for closing of the prosecution evidence in terms of the judgment Raj Dev Sharma vs. State of Bihar JT(7) SC(1) and the learned Trial Court vide order dated 10th September, 1999 closed the prosecution evidence and fixed the date of 31st March, 1999 for recording the statement of the accused. Even after closing of the prosecution evidence vide order dated 10th March, 1999, the learned Trial Court summoned two PWs and examined them to fill-up the lacuna in the prosecution case. The statement of the Appellant recorded under Section 313 Cr.P.C. is illegal as though certain witnesses have not been examined in evidence and there is no evidence adduced to this effect however questions have been put to the Appellant. Further, incriminating evidence have not been put to the Appellant and thus the same cannot be taken into consideration against the Appellant. It is contended that no independent witness was joined. Even the two witnesses cited in the charge-sheet were not produced in evidence. The witness to the raiding party cannot be regarded as an independent witness in a trap case of illegal gratification. Reliance in this regard is placed on Hari Chand vs. State of Haryana, 1998(1) CLR 718, Mohinder Singh vs. State of Punjab, 1995(2) Crimes 274, Dharampal vs. State of Haryana 1998(1) AIR 580, Som Prakash vs. State of Punjab 1992 SC AIR 665, Ram Prakash Arora vs. State of Punjab, 1973 SC AIR 498, Surajmal vs. State, 1997 Crl.L.J. 1087, and Lachhman Das vs. State of Punjab 1970(1) Crl. L.J 526.
3. It is next contended that the learned Trial Court has wrongly appreciated the evidence of PW2 Sanjay Kohli despite the fact that this Crl.Appeal 301/1999 Page 2 of 6 witness has turned hostile. There is no evidence of demand of the bribe and in the absence of this necessary ingredient, the Petitioner cannot be convicted for the offence as above.
4. Learned counsel for the CBI on the other hand contends that the conduct of the Appellant at the time of apprehension is relevant as when he was challenged by the CBI Inspector that he had accepted the bribe from the Complainant, he kept quite. The essential ingredients of Section 7 and 13(1)(d) of the P.C. Act have been proved in the instant case as demand, acceptance and recovery of the illegal gratification have been proved beyond reasonable doubt. PW2 the Complainant has fully supported the prosecution case when he was examined on 6th January, 1996. Further when he was subsequently examined on 25th August, 1998 and 3rd March, 1999 he suppressed the truth and started resiling from his earlier statements. Thus he was declared hostile. However, still the PW2 has proved the essential ingredients of the offence. The initial demand, demand during trap, acceptance and recovery of bribe has been further proved and corroborated by the testimony of PW3 Jagdish Chander the shadow witness. Reliance is placed on Khujji @ Surendra Tiwari vs. State of M.P., 1991(3) SCC 627 to contend that the evidence of hostile witness cannot be treated as effaced or washed of the record altogether and the same can be accepted to the extent the version is found to be dependable on a careful scrutiny thereof. Reliance is also placed on Hazari Lal vs. State, 1980 (2) SCC 390, T. Shankar Prasad vs. State of Andhra Pradesh, 2004 II AD (SC) 45, Mahesh Prasad Gupta vs. State of Rajasthan 1974 (3) SCC 591, B. Noha vs. State of Kerala & Anr.
2006 (12) SCC 277, C.K. Damodaran Nair, 1997 (9) SCC 477.
Crl.Appeal 301/1999 Page 3 of 65. It is submitted that the presumption under Section 20 of the P.C. Act is a statutory presumption which is required to be raised. The Appellant has not adduced any evidence or elicited in the cross-examination any material which can rebut the presumption raised under Section 20 of the P.C. Act. The prosecution has successfully proved the case beyond reasonable doubt against the Appellant and thus the conviction and order on sentence be upheld.
6. I have heard learned counsels for the parties. In the present case, during trial only five witnesses were examined and thereafter on application of the Appellant for closure of the case in view of the decision of the Hon‟ble Supreme Court in Rajdev Sharma (supra) on 10th March, 1999 the learned Trial Court closed the prosecution case and fixed the matter for recording statement of the accused. The statement of the accused was recorded and arguments were heard. Vide order dated 3 rd June, 1999, the Appellant was convicted as above. It may be noted that in the present case not even the investigating officer was examined during the trial.
7. A perusal of the testimony of PW2 the Complainant shows that during his examination-in-chief recorded on 8th January, 1997 he supported the prosecution case however since case property was not produced his further examination-in-chief was deferred. When this witness was examined on 28 th May, 1998 the witness resiled from his earlier statement and thus he was cross-examined by the learned APP. During the cross-examination by the APP this witness stated that when he went inside the office of the Appellant accompanied by Jagdish Chander PW3 the shadow witness, the Appellant stated to him "bill laye ho, paise laye ho". In reply, PW2 stated "ha laya Crl.Appeal 301/1999 Page 4 of 6 hu". Thereafter, the Appellant did some paper-work and told that he would not be able to reduce the bill amount to the extent suggested by him previously but he would reduce the bill to some extent. Thereafter, he said that the bill can be reduced to the extent of Rs.800/- or 900/- and PW2 should pay him half of the reduced amount. On this PW2 gave Rs.400/- from the pocket of his shirt to the Appellant and the Appellant accepted the same with his left hand and kept it in the left pocket of the pant. This part of the testimony of PW2 is not corroborated by PW3 who has stated that he went with PW2 to the DESU office and entered room of the Appellant. On their entering, PW2 stated "mera kaam kardo". Thereafter, PW-3 came out and he does not know what conversation took place between PW2 and the Appellant. After 10-15 minutes PW2 came out of the room and stated that he had passed on bribe to the Appellant. This version of PW3 is not stated by PW2.
8. The most material aspect in this case is that no witness has been examined to prove the post raid formalities regarding the apprehension of the Appellant and dipping his left hand and pant pocket in sodium carbonate solution which turned pink. The investigating officer has not been examined. PW2 and PW3 have not proved the link evidence. No other witness has been examined to prove the link evidence. In the absence of link evidence having been proved and the version of PW2 and PW3 being contradictory to each other it cannot be said that the prosecution has proved the case against the Appellant beyond reasonable doubt. No doubt, for an offence under Section 7 of the P.C. Act, the statutory presumption under Section 20 PC Act puts the onus on the accused to discharge that he has not Crl.Appeal 301/1999 Page 5 of 6 accepted the money, once demand and acceptance of money is proved by the prosecution. However, the said onus can be discharged even by cross- examining the prosecution witnesses and the onus on the accused is not as heavy as the prosecution has to prove its case beyond reasonable doubt.
9. There is yet another serious flaw in the present case as in the statement under Section 313 Cr.P.C. the Appellant has been asked questions which have not been proved by the prosecution. It is well-settled that only facts proved during trial which are incriminating in nature can be put to the accused and facts that are not proved cannot be put to the accused. In this regard, some of the relevant questions are question Nos. 23 & 29 which relate to dipping of the Appellant‟s hand and pant pocket lining in Sodium Carbonate Solution and the sealing thereof.
10. In view of the facts and circumstances of the case, the impugned judgment dated 3rd June, 1999 convicting the Appellant for offence under Section 7 and 13(2) read with Section 13(1)(d) of the P.C. Act and the order on sentence dated 3rd June, 1999 are hereby set aside. The Appellant is acquitted of the charge framed. The bail bond and the surety bond are discharged.
11. The appeal stands disposed of.
(MUKTA GUPTA) JUDGE JANUARY 04, 2012 'dk' Crl.Appeal 301/1999 Page 6 of 6