Delhi District Court
State vs . 1) Ashok Kumar on 28 April, 2016
IN THE COURT OF MS. POONAM CHAUDHRY, SPECIAL
JUDGE07 (CENTRAL), (PC ACT CASES OF ACB, GNCTD),
DELHI
CC.NO. : 07/14
Unique Case ID : 02401R0413202014
STATE VS. 1) Ashok Kumar
S/o Sh. Jai Narain Sharma
R/o H.No.323, Kasar Road, Patel Nagar,
Bahadurgarh, District Jhajjar (Haryana)
2) Prakash Chand
S/o Sh. Mehar Singh
R/o B50, Tyagi Vihar, Nangloi, Delhi.
FIR NO. : 22/09
U/S : 120B IPC r/w Section 7/13 Prevention of
Corruption Act, 1988
P.S. : Anti Corruption Branch, Delhi
Date of Institution 29.08.2014
Judgment reserved on 21.03.2016
Judgment delivered on 28.03.2016
JUDGMENT
1) The case of the prosecution in brief is that on 3.8.2009 C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 1 accused Ashok Kumar posted as Constable and accused Prakash Chand posted as Head Constable at PS: Janak Puri, Delhi entered into a criminal conspiracy for their personal wrongful gain and in pursuance of the criminal conspiracy agreed to obtain illegal gratification from complainant Lokesh Chahal for releasing the Vehicle No. DL 1YB 1975 of the complainant and for release of the driver of the said vehicle of the complainant on police bail in the case bearing FIR No. 197/09, U/S 279/337 IPC, PS: Janak Puri and thereby committed an offence punishable under Section 120B IPC read with Section 7/13 of the Prevention of the Corruption Act 1988 (hereinafter referred to as PC Act).
2) It is also the case of the prosecution that on dated 3.8.2009 between 6:30 p.m. to 10:00 p.m. at PS: Janak Puri, accused Ashok Kumar and accused Prakash Chand being Public Servants, in pursuance of the criminal conspiracy, initially demanded illegal gratification of Rs.7,000/ which was scaled down to Rs.5000/ and on 3.8.2009 at about 10:45 pm at PS: Janak Puri obtained illegal gratification of Rs.5,000/ other than legal remuneration from the complainant Lokesh Chahal through his friend Sanjay for releasing the Vehicle No. DL 1YB 1975 of the complainant and for release C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 2 of the driver of the said vehicle of the complainant on police bail in the case bearing FIR No. 197/09, U/S 279/337 IPC, PS: Janak Puri and thereby accused Ashok Kumar and accused Prakash Chand committed an offence punishable under Section 7 of the PC Act 1988 r/w Section 120B IPC.
3) It is also the case of prosecution that on 3.8.2009 at about 10:45 p.m. at PS: Janak Puri, accused Ashok Kumar and accused Prakash Chand being public servants, in pursuance of criminal conspiracy obtained illegal gratification of Rs.5,000/ from the said complainant namely Lokesh Chahal through his friend Sanjay, as a pecuniary advantage for themselves by corrupt or illegal means or otherwise by abusing their position as such public servants for releasing the Vehicle No. DL 1YB 1975 of the complainant and for release of the driver of the said vehicle of the complainant on police bail in the case bearing FIR No. 197/09, U/S 279/337 IPC, PS: Janak Puri and thereby accused Ashok Kumar and accused Prakash Chand committed an offence of criminal misconduct under Section 13 (1) (d) punishable U/S 13 (2) of the PC Act 1988 r/w Section 120B IPC.
C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 3
4) Charge sheet was filed against both the accused after completion of the investigation. Cognizance of the offence was taken against the accused and they were summoned. Charge was framed against both the accused for the offences punishable U/s 120B IPC r/w Sec 7/13 PC Act & Section 7 r/w Section 120B IPC, Section 13(1)(d) and Section 13 (2) r/w Section 120B IPC.
5) The prosecution in support of its case examined 43 witnesses.
6) PW1 HC Khazan Singh stated that further investigation of the accident case registered vide FIR No. 197/09 U/S 279/337 IPC PS: Janak Puri, New Delhi was marked to him and IO of the ACB seized documents of the case from him mentioned in the seizure memo Ex.PW1/A relating to case FIR No. 197/09 U/S. 279/337 IPC PS: Janak Puri, New Delhi. He further stated that the documents seized were Ex.PW1/B(colly.).
7) PW2 ASI Ramesh Kumar stated that he was posted as duty officer at PS: AC branch on the date of incident. He further stated C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 4 that he had recorded FIR Ex. PW2/A on the rukka handed over by Inspector Kailash Chand.
8) PW3 Girdhar Prasad panch witness stated that the complainant handed over one CD and transcript to the IO of this case in his presence and the CDs and transcripts were taken into possession vide seizure memo Ex. PW3/A.
9) PW4 HC Deenamani, stated that on 31.8.2009 he was posted in AC Branch and he had accompanied IO/Inspector Kailash Chand to the court where accused Prakash Chand surrendered and was arrested vide Arrest Memo Ex.PW4/A. He also stated that the personal search of the accused Prakash Chand was conducted vide Memo Ex.PW4/B. He further stated that accused Prakash Chand had made disclosure statement Ex.PW4/C.
10) PW5 Ct. Rajpal Yadav stated that on 24.8.2009 he was posted at PS Janak Puri and on said date, documents mentioned in seizure memo Ex.PW5/A were seized by the IO of this case. The documents were Ex.PW5/B (colly.). He further stated that on 25.8.2009 he had joined the investigation of this case with ASI C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 5 Satbir Singh and reached Anti Corruption Branch (in short referred to as ACB) where they met the IO and the Panch witness Pankaj Katyal. He further stated that an audio video CD was played on the computer and after seeing the same, he identified the voice and face of accused Ashok Kumar. The voice cum face identification memo Ex. PW5/C bears his signatures.
11) PW6 SI Satbir Singh corroborated the version of PW5 and stated that memo Ex.PW5/C bears his signature.
12) PW7 Pankaj Katyal panch witness stated that on 25.8.2009, one audio video CD was played in the presence of Ct. Rajpal and ASI Satbir Singh and both of them identified the voice and face of accused Ashok Kumar. He also stated that a Memo Ex.PW5/C bears his signature at point C.
13) PW8 HC Narender Kumar proved the DD entry No.37A, 39A and 88B dated 3.8.2009 part of Ex.PW5/B (colly.). He stated that Duty Roster of Police Station staff which was also part of Ex.PW5/B (colly.).
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14) PW9 Jaswant Singh panch witness stated that on 08.09.09 he along with the IO and the accused Ashok Kumar went to FSL, Rohini, where the voice sample of accused as well as his voice was recorded by the official of FSL in the cassettes of TSeries and the cassettes were taken into possession by the IO vide seizure memo Ex.PW9/A which bears his signature. He further stated that the accused Ashok Kumar led to the police party to PS Janak Puri where he identified the IO Room on ground floor and he also took the police party near the boundary wall of main gate and IO prepared the Memo in this regard Ex.PW9/B which bears his signature. He correctly identified cassettes Ex.P1 and Ex.P2.
15) PW10 Sh. Manoj Damodaran panch witness stated that on 7.9.2009 he had joined the investigation of this case along with IO and other police officials. He further stated a CD was played on the official computer of AC Branch and accused Ashok Kumar, who was in police custody, identified his voice and the face in the said CD in his presence. He further stated that accused Ashok Kumar made disclosure statement Ex.PW10/A. He further stated that IO prepared the identification Memo of voice and face of accused which was Ex. PW10/B. He also stated that consent of C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 7 accused for obtaining his voice sample was taken vide consent Memo Ex.PW10/C. He further stated that specimen handwriting of the accused Ashok Kumar was also taken in his presence and all the memos bear his signatures.
16) PW11 HC Satdev Singh, stated that on 8.9.2009 he was posted as a Head Constable at PS AC Branch and had joined investigation of this case. He further stated that accused Ashok Kumar was taken to FSL, Rohini where his sample voice was recorded by the official of FSL in the cassette of TSeries. He also stated that accused Ashok Kumar led to the police party to PS Janak Puri where he identified the IO Room and he also took the police party near the boundary wall of main gate of PS. IO prepared the pointing out Memo Ex.PW9/B in this regard.
17) PW12 ACP Mahavir Singh stated that he had sent the biodata of accused Ashok Kumar which was Ex.PW12/C and accused Prakash Chand Ex.PW12/B and their posting orders Ex. PW12/D to AC branch vide covering letter Ex.PW12/A.
18) PW13 Rajeev Ranjan, was Nodal Officer, Tata Teleservices C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 8 Ltd.
19) PW14 HC Surinder proved the posting record of accused HC Prakash Chand as Ex.PW14/A and that of accused Ashok Kumar Ex. PW14/B.
20) PW15 Sh.Anuj Bhatia, was Nodal Officer, Vodafone Mobile Services Ltd.
21) PW16 Sh. Rahul Sharma, panch witness stated that on 03.08.09 specimen writing and signature of accused Prakash Chand were taken in his presence on 8 pages and he had signed the same.
22) PW17 HC Jitender Singh stated that Inspector Kailash Chand handed over the exhibits to the then MHC(M) who made entries Ex. PW17/A to PW17/C in register no. 19. He also stated that the exhibits were sent to FSL, Rohini vide RC No. 148/21/10 Ex. PW17/D. The acknowledgment of FSL was proved as PW17/E.
23) PW18 Devender Tomar was known to the complainant as they were members of a NGO Manav Charitra Nirman Samiti. (in C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 9 short referred to as society). PW18 stated that he reached PS after complainant informed him about demand of bribe by accused and he installed a spy camera in the pocket of shirt of complainant but did not accompany him for recording the sting.
24) PW19 Acharaya Anil Prakash, the president of society, stated that at about 10.00 PM on 03.08.09 PW18 informed him that the vehicle of complainant had met with an accident and police officials were demanding money. PW19 further stated that he alongwith PW18 reached PS Janakpuri and met the complainant. PW19 further testified that he was carrying a spy camera which he handed over to PW18 who installed it in pocket of complainant but stated that he did not accompany the complainant for recordings the sting.
25) PW20 Chandra Kant Sharma panch witness stated that on 19.08.09 CDs dated 3.8.09 and 6.8.09 were played in his presence and the presence of two public witnesses PW29 Sanjay Kumar and complainant. PW29 identified his voice as well as the voice of complainant and he also identified the voice of accused Ashok Kumar. He also stated that CD dated 3.8.09 was not clear visually C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 10 but CD dated 6.8.09 was clearly visible.
26) PW21 Rajinder Prasad an employee of the society stated that on 06.08.09 he got information from the society about the accident and that one constable was demanding money to release the vehicle of complainant. He also stated that he alongwith complainant, PW18 and PW9 reached PS Janak Puri. He further stated that accused Ashok Kumar had already accepted Rs. 5000/ but was demanding more money. He further testified that a spy camera was installed in the pocket of complainant by PW18 and PW19 and he alongwith complainant went in the PS and recorded the sting.
27) PW22 HC Jai Krishnan stated that he had joined the investigation of this case on 7.9.2009 when accused Ashok Kumar surrendered in the Tis Hazari courts. He further stated that accused Ashok Kumar was interrogated by the IO and thereafter arrested and his personal search was conducted. He further deposed that accused had made disclosure statement and during investigation accused Ashok Kumar confirmed his voice and image in the CD and an identification memo of image and voice was prepared in this regard which was Ex.PW10/B. He further stated that accused C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 11 Ashok Kumar gave consent for taking his voice sample which was Ex.PW10/C. PW22 proved the arrest memo of accused Ashok Kumar Ex.PW22/A and his personal search Ex.PW22/B.
28) PW23 HC Shiv Lal stated that on 4.12.2009 he produced the Fauji Missales (leave record and absence) of HC Prakash Chand and Ct. Ashok Kumar before the IO in ACB which was seized vide Ex. PW23/A (colly.).
29) PW24 Jagdish panch witness stated that on 5.9.2009 HC Khazan Singh (IO of the case registered u/s. 279/337 IPC, PS. Janak Puri) reached the AC Branch and produced 8 original documents before the IO which were taken into possession vide seizure memo Ex.PW1/A.
30) PW25 Inspector Ramesh Kumar stated that he was posted as SHO PS: Janak Puri on 3.8.2009 when case FIR No.197/09 U/S 279/337 IPC was registered. He further stated that the said case was investigated by HC Prakash Chand. As per record, Ct. Rajpal had accompanied for investigation with HC Prakash Chand. PW25 further stated that due to shortage of staff, as Independence Day C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 12 was approaching, only accused Ashok was on emergency duty along with ASI Satbir and HC Prakash Chand on 03.08.09. PW25 further stated that on 24.8.2009, the IO of this case (Inspector Kailash Chand) verified the duties of both the accused persons and an attested copy of rojnamcha and duty roster Ex. PW5/B were handed over to the IO. PW25 further stated that on 18.12.2009 he was again called in AC Branch by the IO where a audio/video CD was played and he had identified the image of accused Ashok Kumar, but voice and conversation was not clearly audible. The memo of identification of voice was proved by him as Ex.PW25/A.
31) PW26 Ct. Kuldeep Singh stated that on 6.1.2010, as per the directions of the IO of this case, he went to the PS:Civil Lines and collected 5 sealed pullandas along with the road certificate and deposited them at FSL, Rohini. The FSL Official, Rohini issued acknowledgment of the receipt of the same. He also stated that as long as above 5 pullandas and transcription remained in his custody, it was not tampered with.
32) PW27 R.K. Singh, was Nodal Officer, Bharti Airtel Ltd. C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 13
33) PW28 R.K. Rohilla, panch witness, stated that on 18.12.2009, the SHO PS: Janak Puri was called in the AC Branch and a audio video CD was played on the computer of AC Branch. The SHO after seeing the same told the IO of this case that the said CD contained the voice and face of Ct. Ashok Kumar and an identification memo was prepared in this regard which was Ex. PW25/A.
34) PW29 Sanjay Kumar stated that he was driving the Tavera of complainant in the year 20082009. He further stated that he had left the job of complainant in the end of year 2009. He also stated that he was called to the police station Civil Lines twice and he had told the police officials that he had no concern with this case. He further stated that police officials obtained his signatures on some blank papers. He further stated that he did not know the accused persons. He also stated that he was taken to the AC Branch by complainant once where his voice sample was taken. He further stated that no demand was made by anyone in his presence. He stated that the seizure memo of the cassette mark PW29/A bears his signatures.
C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 14
35) PW30 Manoj Kumar stated that he was driving the vehicle DL 1Y B 1795 owned by his brother in law Sumer Singh on 3.8.2009 when it met with an accident in the area of PS Janak Puri. He further stated that police official reached the spot and arrested him and thereafter the police officials asked him to arrange for surety. He also stated that at about 8.30 pm, his surety reached the spot and police after completion of the proceedings released him on bail whereas the vehicle was taken to police station. He further stated that he left the spot thereafter and did not know what happen subsequently. He also stated that no one demanded money from him.
36) PW31 Sanjit Rana stated that PW30 Manoj Kumar was his tenant. He further stated that on 3.8.09 one Narender informed him about the accident of the vehicle of PW30 and asked him to furnish surety for him. He further testified that at abut 8.30 pm, he along with Narinder reached the place of accident and furnished surety. He also stated PW30 was released on police bail after completion of proceedings. He C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 15 also deposed that on one demanded money from him after release of PW30 on police bail.
37) PW32 HC Phool Chad stated that on 26.8.2009, he was posted as MHC(M) at PS Janak Puri. On that day, he along with HC Ram Kishore and HC Nagpal went to ACB along with the daily diary register dt. 3.8.2009 Ex.PW5/B. He further testified that on 3.8.2009 ASI Satbir Singh, HC Prakash Chand and Ct. Ashok Kumar were on emergency duty during the day time. He also testified that HC Prakash Chand was IO of the case FIR No.179/09 dt. 3.8.09 and after his suspension, investigation of the case was assigned to to HC Khajan Singh. He further deposed that on 24.8.2009 Inspector Kailash Chand of ACB took a photocopy of the abovesaid file. He also stated that DD No. 88 B was in the handwriting of accused Ashok Kumar. PW32 further testified that he could identify the handwriting of accused Ashok Kumar as he had seen him writing and signing during the course of his official duties. He further stated that during investigation he was shown the CD in ACB and after seeing the same, he identified the image and C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 16 voice of accused Ashok Kumar.
38) PW33 Sumer Sharma stated that he had purchased the vehicle No. DL 1Y B 1975 from the complainant Lokesh Chahal but did not get the registration transferred in his name. He further stated that on 3.8.2009, the abovesaid vehicle met with an accident in the area of PS Janak Puri, Delhi. At that time, Manoj Kumar/PW30 who was his brother in law was driving the vehicle. He also stated that PW30 called him to inform about the accident and arrange surety since he was in his native village. He also stated that he informed the complainant about the accident and further stated that he called his friend Narender and asked him to furnish surety for PW30 but Narender told him that he did not have proper documents. Thereafter, he called his land lord who sent his son PW31 to furnish surety for PW30.
39) PW34 Kapil Chahal, the brother of complainant stated that PW30 was the driver of taxi/car of complainant. He further stated that on 3.8.2009 the complainant called him on C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 17 his mobile number and informed him about the accident of his Tavera car being driven by PW30. He further testified that complainant told him to arrange Rs.500010000/ as police officials/accused Prakash Chand and Ashok Kumar were demanding bribe for releasing the driver and the vehicle. He further deposed that he arranged the money and went to police station Janak Puri at about 9.30 pm and handed over Rs.5000/ to complainant. PW34 further deposed that accused Ashok Kumar came out of the police station and called the complainant and PW29 outside the police station but he could not tell what transpired among them. PW34 further stated that after sometime, accused Ashok Kumar went inside the police station and after about 1520 minutes PW30 came out of the police station and complainant informed him that Rs.5000/ were given to accused. He correctly identified accused Ashok Kumar. He also stated that complainant told him that he had recorded the sting of the transaction of handing over of money to accused Ashok Kumar.
40) PW35 Suresh Chand Gupta, Director Truth Lab stated C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 18 that the documents relating to the present case were received in the Truth Lab on 4.8.2012 and proved his report Ex.PW35/D.
41) PW36 Inspector Vinay Malik stated that on 26.3.2013 he received the file of the present case for further investigation. He stated that he filed the chargesheet in court. He also deposed that after the receipt of FSL result he had filed supplementary chargesheet.
42) PW37 ACP Kailash Chand was the IO of the case.
43) PW38 Dr. C.P. Singh, Director, FSL Rohini proved the FSL result Ex.PW38/A wherein it was stated that as the device was not operable in the laboratory, it was not possible to say whether the recording of CD Ex.P1 and Ex.P2 were recorded by the said device or not.
44) PW39 HC Jai Prakash stated on 17.8.2009 he was posted at PS: Civil Lines as MHC(M) and on that day, IO/Inspector C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 19 Kailash Chand deposited two sealed pullandas sealed with the seal of KC. He further stated that on 8.9.2009 and 3.12.2009, IO again deposited two sealed pullandas and entries were accordingly made in the maalkhana register. He further stated that on 6.10.10, the five pullandas and transcription were sent to FSL through Ct. Kuldeep. He further testified that on 20.09.2010, 5 sealed pullandas were deposited by HC Suraj Pal Singh duly sealed with the seal of FSL. He proved the entries in this regard in the register as Ex.PW39/B. He also proved the acknowledgment of FSL Ex. PW39/C.
45) PW40 HC Suraj Pal stated that on 20.9.2010, he was posted at PS ACB and on that date, IO handed over to him an authority letter to collect the FSL result and the exhibits. He accordingly collected 5 sealed pullandas along with FSL Result. Thereafter, he returned to PS AC Branch and handed over the FSL Result to the IO of this case. He further stated he went to PS Civil Line and handed over 5 sealed pullandas in sealed conditions to MHC(M) PS Civil Line. PW40 also stated that so long as the exhibits remained in his custody no one C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 20 tampered with the same.
46) PW41 Ram Kumar stated that he was posted as MHC(M) PS Civil Lines on 20.09.2010, when HC Suraj Pal handed over to him 5 sealed parcels sealed with the seal of Dr. C.P. Singh, FSL, Delhi. He stated that he made entry in register no. 19 which was proved as Ex. PW41/A.
47) PW42 HC Nempal did not support the case of the prosecution. He stated that he had joined the investigation along with ASI Satbir Singh, but stated that he could not identify the writing of accused Ashok Kumar on the Ex. PW1/B (colly) and Ex. PW5/B. He also stated that no CD was played by IO before him on 25.08.09.
48) PW43 was the complainant of the case.
49) The prosecution thereafter closed its evidence.
50) The statements of both accused were thereafter recorded u/s 313 Cr.P.C. Both denied all the allegations of prosecution C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 21 witnesses. Ashok Kumar on being asked whether he had anything else to say stated as under: "I am innocent. I have been falsely implicated in this case at the instance of complainant and his associates.
Complainant and his associates made an attempt to extort an amount of Rs. 5 Lacs from me by making a phone call on my mobile number i.e. 9811290930 from landline number of the society i.e. 27731075 on 07.08.09 at about 9.19 AM. When they failed to extort money from me, they manipulated certain recordings with the help of software available in the market and got this false case registered against me. On 03.08.09 I was deputed with ASI Satbir Singh on emergency duty through out.
I had never demanded any money
from Lokesh Chahal nor accepted any
money from him. I did not meet any
Lokesh Chahal or any of his
associates either on 03.08.09 or
06.08.09."
51) Accused Prakash Chand also denied the allegation of
C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 22
witnesses and on being asked whether he had anything else to say, stated as under : "I am innocent in the entire case. I neither demanded nor instructed to accept any money from any one on my behalf. Complainant was bearing grudge against me as I have registered a case against his driver. I immediately released the driver after furnishing his bail bonds on 03.08.2009 before 9.20 PM so there was no occasion for me to demand any money from any one in that case. Ct. Rajpal had associated me in this case. I falsely implicated in this case."
52) Accused examined four witnesses in their defence.
53) DW1 Narender Kumar stated that on 3.8.2009, he received a call from his friend PW33 at about 7.308.00 pm informing that PW30 had caused an accident near Gas Godown, near Janak Puri and a case had been registered and asked him to furnish surety. DW1 further stated that he did not have proper documents at that time and he requested son of C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 23 his land lord namely PW31 to furnish surety. Thereafter, he along with PW31 reached the place of accident at about 8.30 pm and after completion of formalities at about 9 pm, PW30/Manoj Kumar was released and they left for their respective homes.
54) DW2 Jagpal Singh proved documents of sale of Tavera as Ex.PW33/DA by complainant in his favour. In his cross examination he denied that Ex.PW33/DA was never executed or that it was a fabricated document.
55) DW3 Pradeep Singh, Nodal Officer, Vodaphone proved the customer application form of accused Ashok Kumar as Ex.DW3/A and stated that CDR relating to the above said mobile number was Ex.DW3/B. He proved the certificate u/s 65B of the Evidence Act as Ex.DW3/C.
56) DW4 Parshuram Tiwari deposed that as per the court order the CDR of land line no. 27731075 of society dated 07.08.09 were preserved. He proved the CDR of the above C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 24 number w.e.f. 01.08.09 to 15.08.09 and certificate u/s. 65 of the Evidence Act.
57) The accused admitted the sanction granted for their prosecution, which was Ex. PW1X, hence, the contention raised by Ld. Counsel for accused that the sanction for prosecution was not valid was without merits.
58) In so far as, the offences under the PC Act are concerned, the law is well settled that demand of illegal gratification is sine qua non to constitute an offence under the Act. It has to be proved beyond reasonable doubt that accused voluntary demanded and accepted the bribe. Thus prosecution had to prove beyond reasonable doubt that accused demanded and voluntarily accepted the money knowing it to be the bribe. The question for consideration thus is whether accused had demanded any amount as gratification to show any official favour and whether the said amount was paid on behalf of the complainant by PW29 Sanjay Kumar and received by accused as consideration for showing an official favour.
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59) The charge against both the accused was that they had entered into a criminal conspiracy in furtherance of which they agreed to obtain and accepted illegal gratification of Rs. 5,000/ other than legal remuneration from the complainant by corrupt or illegal means by abusing their positions as public servants for release of vehicle of complainant bearing No. DL1 YB1975 and releasing the driver of complainant on police bail in case FIR No. 197/09 U/s 279/337 IPC registered at PS Janak Puri.
60) Section 7 and Section 13 (1)(d) of PC Act under which accused have been charged are as under : Section 7 "Public servant taking gratification other than 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 C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 26 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 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 than [three years] but which may extend to [seven years] and shall also be liable to fine."
"Section 13 Criminal misconduct by a public servant -
(1) A public servant is said to commit the offence of criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 27 inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or
(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 shall C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 28 be not less than one year but which may extend to seven years and shall also be liable to fine.
61) Section 120 A of the India Penal Code which defines 'Criminal Conspiracy' is as follows :
"When two or more persons agree to do, or cause to be done, (1) an illegal act, (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy :
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
62) Section 120B IPC provides punishment for criminal conspiracy and provides as under :
"Whoever is a party to a criminal C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 29 conspiracy to commit an offence punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence."
63) Section 21 of Indian Penal Code defines: "21" Public Servant - The words "public servant" denote a person falling under any of the description hereinafter falling namely: Twelfth Every person(a) in the service or pay of the government or remuneration by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Sec. 617 of the C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 30 Companies Act, 1956".
64) As regards mens rea not being an essential ingredient to constitute an offence U/S 13 (1)(d)(iii) of the PC Act, it has been held in Runu Ghosh & Others CBI Crl. A. 482/2002, No. 509/2002 and No. 536/2002 decided by Hon'ble High Court of Delhi on 21.12.2011 as follows:
"Interpretation of Section 13(1)(d)(ii) (iii) This question lies at the core of the reference to this Division Bench. The material portion of the reference, while adverting to Section 13 (1)(d) and then dealing with the phraseology of Section 13 (1)(d)(iii) and other preceding subclauses, reads thus:
"Whether the absence of adverbs like "willfully", "fraudulently", "dishonestly", "corrupt or illegal means" to qualify the very "obtains" in this clause would mean that a public servant commits criminal misconduct if he while holding such office obtains for any person (and not for himself) any pecuniary advantage which is "without any public interest"?. The statute appears C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 31 to offer no guidance as to what can be said to be a decision or act that is "without public interest".
"There is no doubt that Section 13 (1) (d)
(iii) differs from other parts of the Act, not only in structure, but also in substance. The use of terms such as "habitually accepts"
"agrees to accept" "attempts"
"consideration which he knows to be inadequate" "dishonestly or fraudulently misappropriates." (property "entrusted" to him or "allows any other person so to do"); "corrupt or illegal" "abusing his position"
are clear pointers to Parliamentary intention that mens rea is essential to be proved in relation to the offences provided for under section 13 (1) (a) to (d) (i) and
(ii). Section 13 (1) (d) (iii) contains no such words, which point to criminal intent."
Having regard to the previous history of the statute, the amendments to the 1947 Act, its avowed objects and the distinctive structure which Parliament adopted consciously, under the 1988 Act, despite being aware of the preexisting law, as well as the decisions of the Courtthe conclusion C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 32 which this Court draws is that mens rea is inessential to convict an accused for the offence under Section 13 (1) (d) (iii) It would be sufficient if the prosecution proves that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest. The inclusion of public interest, in the opinion of the Court, tips the scale in favour of a construction which does not require proof of mens rea. There can be many acts of a public servant, which result in pecuniary advantage or obtaining of a valuable thing to someone else; typically these may relate to payment of royalty, grant of license or concessions, issuance of permits, authorizations etc. Yet, such grants, concessions, or other forms of advantages to third parties would not criminalize the public servant's actions, so long as they have an element of public interest. They (acts of the public servant) are outlawed, and become punishable, if they are "without public interest".
65. As regards the expression without 'public interest' it has been held in Runu Ghosh (supra), as under: C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 33 "Having now settled the true interpretation of whether the offence under Section 13 (1) (d) (iii) requires proof of mens rea, it would now be vital to settle what really the prosecution would have to establish to say that the public servant's actions or decisions, which result in a third party obtaining a pecuniary advantage or valuable thing, without public interest.
"It would be profitable to emphasize that public servants are an entirely different class, and the level of trust reposed in them by the society is reflected in the high standards of behaviour and rectitude expected of them, both in the discharge of their duties, and otherwise".
"The court, as a consequence has to determine the objective criteria by which acts (of public servants) "without public interest", are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out) the court has to say what "acts" resulting in C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 34 someone obtaining pecuniary advantage or valuable thing are "without public interest".
"Therefore, when a public servant's decision exhibits complete and manifest disregard to public interest with the corresponding result of a third party obtaining pecuniary advantage or valuable thing, he is fastened with responsibility for "criminal misconduct" under Section 13 (1) (d)
(iii).
This offenceunder section 13 (1) (d)
(iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of offence is similar to those intended to deal with other social evils, such as food and any adulteration (offences under Prevention of Food Adulteration Act, Drugs and Cosmetics Act, Essential Commodities Act. Section 25 of the Arms Act. It is not every act which result in loss of public interest or that is contrary to public interest thus is prosecutable. However, it is only those C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 35 cases done with complete disregard to norms and manifestly injurious to public interest, which are avoidable, but for the public servant disregarding precautions which resulted in pecuniary advantage to another that are prosecutable U/S 13 (1) d(iii) of the PC Act. In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. Failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted. To put it differently, the public servant acts without public interest, if his action or decision, is by manifestly failing to exercise reasonable precautions to guard against injury to public interest, which he was bound, at all times to do, resulting in injury to public interest. The application of this test has to necessarily be based on the facts of each case' the standard C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 36 however, is objective.
66. The crucial question thus is whether both accused had abused their official position by corrupt or illegal means to 'obtain' for themselves pecuniary advantage 'without public interest'. As long as there was no ulterior motive, the courts will not question the decision of the public servant. However, when the act of public servant was without public interest, in utter disregard of the consequences it would amount to be without public interest. The public servant indulging in such act had to take responsibility of the consequences. It is now to be seen whether both accused acted in concert, without public interest, by abusing their official position.
67. "Criminal conspiracy" is not easy to prove. The conspirators invariably deliberate, plan and act in secrecy over a period of time. It is not necessary that each one of them must have actively participated in the commission of the offence or be involved in it from the start to finish. What is important is that they were involved in the conspiracy. Conspiracy requires actus reus and C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 37 accompanying mens rea. To convict a person for conspiracy, the prosecution must show that accused agreed with each others to accomplish the unlawful object of conspiracy. The Court has to be satisfied that there is a reasonable ground to believe the existence of the conspiracy and that is a matter for judicial inference from proved facts and circumstances.
68. In order to bring home the charge of conspiracy and for the purpose of drawing inferences U/s 10 of the Evidence Act, the prosecution had to establish beyond reasonable doubt that accused acted in concert, either through overt or covert acts in furtherance of the common objective. Section 10 of the Indian Evidence Act introduces the doctrine of agency and if the conditions laid down there are satisfied, the act done by one is admissible against the coconspirators. Section 10 of the Indian Evidence Act is as under :
"Things said or done by conspirator in reference to common design. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 38 common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
69. (1) Thus, there should be prima facie evidence disclosing reasonable grounds for court to believe that two or more persons were members of a conspiracy., (2) Anything said, done or written by anyone of them in reference to the common intention would be evidence against the other., (3) Anything said, done or written by anyone of them should have been said, done written by them after the intention was formed by anyone of them. The prosecution thus had to prove by chain of events which could lead to strong inference of conspiracy. Conspiracy can be inferred either on the basis of direct or circumstantial evidence. Though direct evidence of conspiracy is difficult in most cases, the circumstances proved should reasonably point to existence of prior concert of mind.
70. As regards ingredients and proof of conspiracy it has been C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 39 held in (1995) 1 SC Cases 142 titled as P.K. Narayanan Vs State of Kerala as under :
"A Penal Code, 1860 Ss. 120A and 120B Criminal conspiracy - Ingredients and Proof of - Motive and preparation by themselves to not constitute conspiracy - Criminal conspiracy can be proved by direct or circumstantial evidence - Circumstances must establish that the offence was committed in pursuance of an agreement between parties to the alleged conspiracy - Such circumstances must be incapable of any other explanation - Mere suspicious and surmises or inferences unsupported by cogent evidence not sufficient".
71. It was contended on behalf of the accused that in a criminal trial, the burden of proving the case always rests on the prosecution, and every man is presumed to be innocent until proven guilty and that criminality is never to be presumed, subject to statutory exception. Ld. counsel for both accused further contended that the charge of conspiracy had not been proved against the accused by cogent evidence.
C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 40
72. The case of prosecution as unfolded during trial was that both the accused in furtherance of conspiracy demanded and accepted illegal ratification of Rs. 5000/ from PW29 on behalf of the complainant. The prosecution primarily relied upon the testimony of complainant/PW43, PW18/Devender Tomer, PW19/ Acharya Anil Prakash, PW21/Rajinder Prasad and PW34 Kapil Chahal brother of complainant to establish the charge against the accused. Out of these material witnesses PW18, 19, 21 and 34 were admittedly not eye witnesses to the demand and acceptance of bribe. It was only PW29 Sanjay Kumar and complainant who were eye witnesses to the demand and acceptance of illegal gratification. The complainant stated that on the date of incident i.e. 03.08.09, he was the registered owner of one Tavera bearing No. DL1YB1975. He further stated that Manoj Kumar/PW30 was driver of his vehicle when the accident took place. Complainant further deposed that on 03.08.2009, he noticed a missed call of his driver/PW30 on his mobile at about 5.30 P.Mand he had also received another call on his mobile which he later on came to know was of accused Ashok Kumar. The complainant further stated that he also received a call from a landline, which later on, he came to know was from P.S. Janak Puri. The complainant further deposed C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 41 that when he contacted his driver PW30, it was attended by accused Ashok Kumar, who was correctly identified by complainant, who informed him that his vehicle had met with an accident and his driver was in police custody. The complainant further stated that on receiving the said information he reached P.S. Janak Puri with his friend Sanjay Kumar/PW29 at about 6.30 PM and met accused H.C. Prakash Chand and accused constable Ashok Kumar. He further testified that he verified the fact from accused HC Prakash Chand and asked him to arrange a meeting with injured to see if they required any help but accused Ashok Kumar told him that injured would not meet him (complainant) and was demanding Rs. 2 lacs. The complainant further testified that accused Ashok Kumar made a demand of Rs. 25,000/ in the presence of accused Prakash Chand, upon which complainant told him that he was unable to pay the said amount and he also told accused Prakash Chand that he would not be able to pay Rs. 25,000/ as he was a student. However, accused Prakash Chand directed him to talk to 'sahab' pointing towards accused Ashok Kumar in the said matter. The complainant further stated that thereafter accused Ashok Kumar took him to the parking of P.S. Janak Puri where he frightened him and bribe amount was scaled C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 42 down to Rs. 5,000/ from Rs. 25,000/. Complainant further deposed that he then made a telephonic call to his brother Kapil Chahal/PW34 and asked him to arrange Rs. 5,000/ for payment to accused Ashok Kumar. The complainant also contacted PW18 and narrated the entire incident to him and told him that he was not in favour of giving or accepting bribe. The complainant further testified that he had also contacted PW31 Sanjit Rana, landlord of his driver and asked him to furnish surety for him. The complainant further stated that PW18, PW31 and PW34 reached PS Janak Puri at about 9.3010.00 PM. Thereafter, PW18 installed a spy camera in the pocket of shirt and switched it on. The complainant further deposed that he met accused Ashok Kumar with his friend Sanjay PW29, outside the PS and accused Ashok Kumar asked him (complainant) whether he had arranged the money upon which he told accused Ashok Kumar that he had arranged the money and initially handed over Rs. 4,000/ to accused Ashok Kumar but accused Ashok Kumar told him that he would not accept anything less than Rs. 5000/ as agreed. PW43 further stated that he then enquired from the accused Ashok Kumar about the release of his driver, upon which accused Ashok Kumar told him that after Rs. 5000/ was handed over to him, his driver C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 43 would be released on bail. The complainant stated that due to compulsion, he handed over Rs. 5000/ to accused Ashok Kumar at about 10.30 PM as he had to appear in an examination on the following day. Thereafter accused Ashok Kumar went inside the PS and after 10 minutes, his driver/PW30 came out from the PS. The complainant further stated that accused Ashok Kumar then asked them to wait outside the PS and after about about 45 to 60 minutes, both the accused came out from P.S. and met him and he then enquired from them about the next step in the case upon which both the accused told him that they had done their job and he had now to approach the court.
73. The complainant further stated that on 06.08.2009, he obtained the order of release of his vehicle from the concerned court and alongwith PW19 Acharya Anil Prakash reached P.S. Janak Puri, where he met accused Ashok Kumar and produced the release order before him, whereupon accused Ashok Kumar again took him to the parking of PS Janakpuri where the vehicle was parked. The complainant also stated that when he asked for the key of the vehicle accused Ashok Kumar advised him to meet the MHC(M) and handed over to him Rs. 100200 for C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 44 release of the keys of his vehicle. However, the complainant told accused Ashok Kumar that as he had already paid Rs. 5000/, he would not pay anything more, upon which accused Ashok Kumar uttered "chacha wo to hamare kaam ke the jo hamne kiya' and that "maine tere jaise tucha aadmi nahi dekha". PW43 also testified that he told accused Ashok Kumar that he would inform the MHC(M) of payment of Rs. 5,000/ to him but accused Ashok Kumar told him not to inform the MHC(M) about the same. The complainant further stated that accused Ashok Kumar told him that out of the bribe money he had handed over some amount to IO HC Prakash Chand and some money to SHO. The complainant further stated that he then went to accused HC Prakash Chand who took him to Malkhana and his vehicle was released. The complainant also deposed that he recorded the incidents of 03.08.2009 and 06.08.2009 through the spy camera and he handed the spy camera to PW18 who transferred the contents of the same in the office computer of the society and prepared two CDs in his presence, which were played and seen by him (the complainant).
74. The complainant further stated that thereafter on C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 45 11.01.2009 he went to Anti Corruption Branch (in short referred to as ACB) and met the DCP and wrote his complaint and enclosed with it the two CDs and handed over the same to the DCP. Both the CDs were played on the computer of ACB and after viewing the same the DCP told him that there was not enough visibility and asked him to prepare transcript of the conversation. The complainant further deposed that thereafter he prepared transcript of the CDs and again went to ACB on 17.08.09 and handed over the transcripts to the DCP. Thereafter his complaint dated 17.08.09 Ex. PW37/B was lodged and the CDs and transcripts were then taken into possession vide seizure memo Ex. PW3/A. The transcripts were proved Ex. PW3/B and Ex. PW3/C. The complainant also stated that he handed over the spy camera and CDs to IO on 21.08.09, thereafter stated that the CDs were handed over on 17.08.09 which were taken into possession vide seizure memo Ex. PW3/D. Complainant further stated that during the investigation he along with PW29 went to FSL, Rohini where their voice samples were taken. The FSL officials thereafter handed over the cassettes to the IO which were seized vide seizure memo Ex. PW 29/A. C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 46
75. The ld. Addl. PP pointed during the examination of complainant the complainant had told the IO in his statement Ex. PW3/D that he had deleted the original recordings from the device/spy camera after it was saved in the computer of the society.
76. In his crossexamination, complainant stated that he had not given the transcription of CD relating to recording of Maalkhana i.e. 06.08.09 to the IO and further stated that he could not remember whether he had stated in his complaint Ex. PW37/B that on 03.08.2009 at about 5.30 PM he noticed a miss call of his driver PW30/Manoj and a missed call from the land line of PS Janakpuri and a missed call from accused Ashok. PW43 was confronted with complaint Ex. PW37/B wherein the complainant did not mention about the missed call of accused and from the landline of PS. Jankpuri. PW43 further stated that he stated in his complaint that he made a call to his driver on his mobile but it was attended by accused Ashok Kumar, who informed him that his vehicle had met with an accident and his driver was in police custody, he was again confronted with his complaint Ex. PW37/B wherein it was not so recorded. The C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 47 complainant deposed that he had not mentioned in his complaint Ex. PW37/B that when he entered the room of IO, he met both the accused or that he verified the facts of the incident from accused Prakash Chand or that he had asked for the meeting with the injured to see if they required any help or that accused Ashok Kumar told him that injured would not meet him and was demanding Rs. 2 lacs. The complainant further stated that he had not mentioned in the complaint about the demand of Rs. 25,000/ by accused Ashok Kumar, but he mentioned that accused Prakash Chand was present at that time of demand and he told HC Prakash Chand that he was unable to pay Rs. 25,000/ as he was a student, he was confronted with his complaint Ex. PW37/B wherein it was not so recorded. The complainant also stated that he had mentioned in his complaint that accused Prakash Chand pointed towards accused Ashok Kumar addressing him 'Sahab', he was again confronted with the complaint where the word "Sahab" was not mentioned. The complainant also stated that he had not mentioned in his complaint that accused Ashok Kumar took him outside the PS. The complainant further stated that he had stated in his complaint Ex. PW37/B that he had made a call to his brother C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 48 (PW34) and asked him to arrange Rs. 5000/ for giving the same to accused Ashok Kumar, however, he was again confronted with his complaint Ex. PW37/B wherein it was not so recorded. Complainant also stated that he did not remember whether he had mentioned in the complaint Ex. PW37/B that during talks with PW18 on phone he told him that he was not in favour of giving and taking bribe. Complainant further stated that he had not mentioned in his complaint that PW18 had installed a spy camera in his shirt pocket and switched it on. Complainant had also stated that he had not mentioned in his complaint that when he met accused Ashok Kumar, he inquired from him about the arrangement of money or that he replied that he had arranged the money, but stated that he had mentioned that on refusal of accused Ashok Kumar to accept Rs. 4000/ he added Rs. 500 and offered it to the accused, the witness was confronted with the complaint where it was not so mentioned. Complainant further stated that he had not mentioned in the complaint that when he enquired from accused Ashok Kumar about the release of his driver accused Ashok Kumar told him that after Rs. 5000/ would be handed over to him, he would release the driver on bail. The complainant further stated that he C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 49 had mentioned that due to compulsion he handed over Rs. 5000/ to accused Ashok Kumar at about 10.30 PM as he had to appear in an examination the next day. The complainant further stated that he had not stated in his complaint that accused Ashok Kumar asked him to wait outside the PS and after 4560 minutes both accused came out from the PS and met him and when the complainant inquired from them about next procedure both replied that they had done their job and he (complainant) would had to move an appropriate application in the Court. The complainant also stated that he could not remember whether he had mentioned in the complaint that he had produced the release order of his vehicle before accused Ashok Kumar whereupon accused Ashok Kumar again took him to parking of PS, But complainant stated that he had mentioned in the complaint that when he asked accused Ashok Kumar for the key of his vehicle, he told him to go to the MHC(M), he was confronted with the complaint Ex. PW37/B wherein it was not so recorded. Complainant also stated that he had not mentioned in his complaint that he told accused Ashok Kumar that he would tell the MHC(M) about payment of Rs. 5000/ to him (accused Ashok Kumar) and stated that he could not remember whether C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 50 he had mentioned in the complaint when he had expressed his inability to pay the money to the MHC(M), Ashok Kumar utterd "mene tere jaisa tuchcha aadmi nahi dekha", he was confronted with his complaint wherein it was not so recorded. The complainant further stated that he had not mentioned in his complaint Ex. PW37/B that accused Ashok Kumar told him that he had handed over some amount to the IO (accused Prakash Chand) and the SHO, but he had mentioned in the complaint that accused Ashok Kumar told him that he handed over some amount to the IO, he was confronted with his complaint Ex. PW37/B wherein the payment to IO was not mentioned. Complainant further stated that he had not mentioned in his complaint that accused Prakash Chand, took him to the malkhana. He stated that he had mentioned in his complaint that he handed over the spy camera to PW18 to transferred its contents in the computer of society and prepared two CDs in his presence and the CDs were played and viewed by him, he was confronted with his complaint Ex. PW37/B wherein it was not so recorded. Complainant stated that he had not mentioned in the complaint that on 11.08.09 both the CDs were played on the office computer of ACB by DCP and after seeing the same the C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 51 DCP told him that there were not enough visibility and asked him to prepare transcript of the conversation. Complainant denied that he made deliberate improvements in his deposition in the Court. Complainant admitted that he gave the complaint dated 11.08.09 Ex. PW37/A to DCP ACB and further stated that it was not in his handwriting and he could not tell who wrote it but stated that it was prepared in the office of Society, by one of its officials. Complainant admitted that the names of both the accused were not mentioned in the complaint Ex. PW37/A. Complainant denied that the transcriptions Ex. PW3/B and Ex. PW3/C were antedated. Complainant further stated that all the facts narrated by him in the complaint Ex. PW37/B were in his knowledge, when he filed the complaint Ex. PW37/A in the ACB. Complainant also stated that the CDs which were given on 11.08.09 were not kept in a sealed pullanda by the officials of ACB and also stated that some documents were prepared by IO on 21.08.09 when the spy camera handed over to the IO by him and at that time one panch witness was present and the camera was sealed, but the camera was not played by the IO before seizing it to see whether there was any prerecorded material in it or whether it was capable of recording or not. He denied that C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 52 the CDs were fabricated. Complainant also stated that IO did not ask for the hard disc of the computer and he prepared the CDs on 11.08.09. Complainant denied that the spy camera was not a devise. Complainant stated that complaint Ex. PW37/B dated 17.08.09 was written by him at his house and denied that it was written by him at ACB on the dictation of Inspector Kailash Chand, as per the audio clippings available in the CD. Complainant stated that he never informed PW18 telephonically that police officials were demanding Rs. 50,000/ as bribe or that he asked PW18 to arrange the money. Complainant denied that no CD has been handed over by him in the office of ACB to DCP on 11.08.09. Complainant further stated that IO did not obtain certificate u/s 65B of Indian Evidence Act from him. Complainant also stated that he went alone to ACB on 11.08.09 and stated that he did not lodge any complaint with SHO PS Janak Puri or any other police officials against the accused from the time of demand till payment of bribe i.e. 03.08.09 to 11.08.09 about their alleged act. He denied that he gave a press release on 16.08.2009, which was published on 17.08.09 due to which ACB was constrained to register a false FIR against the accused. Complainant also stated that he did not give Rs. 200/ C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 53 to the Naib Court on 06.08.09, though Naib Court demanded Rs. 200/ from him. Complainant denied that on 03.08.09 he was not the owner of Tavera bearing no. DL1YB1975 and also denied that the above vehicle was sold by him to PW33/Sumer Singh on 07.06.97 or that he executed an agreement to this effect which was Ex. PW33/DA and stated that his signatures were fabricated on Ex. PW33/DA. Complainant denied that he and the other members of the society made a call from the landline no. 27731075 of the society on the mobile phone of accused Ashok Kumar to extract Rs. 5 lacs from him and threatened to get a case registered against him and denied that as they failed to extort money from accused, they fabricated the recordings and got a false case registered against the accused.
77. Complainant denied that Manoj/PW30 was not his driver or that PW31/Sanjeet Rana stood surety for Manoj at the instance of PW33/Sumer Singh and not at his instance. Complainant also denied that PW30/Manoj was released on bail by accused Prakash Chand at the spot of accident after surety was furnished by PW31/Sanjeet Rana. Complainant denied that he never spoke to accused Ashok Kumar from 03.08.09 to C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 54 06.08.09. He also denied that PW29/Sanjay was not present with him on 03.08.09, outside PS Janakpuri. Complainant also denied that PW30/Manoj was not brought to PS by accused Prakash Chand on 03.08.09.
78. Complainant further stated that he did not note down the currency notes of Rs. 5000/ nor did he put any identification mark on the same before handing the same to the accused. Complainant admitted that in his complaint Ex. PW37/A, there was no mention of demand of Rs. 25,000/, but denied that the accused did not demanded Rs. 10,000/ or Rs. 25,000/, nor accused agreed to accept Rs. 5,000/ on 03.08.2009. Complainant also denied that Rs. 5000/ was not paid to the accused Ashok Kumar in the presence of PW29/Sanjay on 03.08.09. Complainant also denied that he fabricated all the recordings after 07.08.09 or that IO had fabricated various documents at his instance.
79. As regards the demand and acceptance of bribe, PW29/Sanjay Kumar stated that he had no concern with this case. He further stated that police officials of police lines called C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 55 him twice and obtained his signatures on some blank papers. He further stated that he was driver of complainant in the year 200809 and left the job in the year 2009. He also stated that once he was taken to ACB by the complainant where his voice sample was recorded. PW29 further stated that no one demanded anything in his presence, nor was he present with the complainant at any point of time regarding this case. As PW29 resiled from his previous statement, he was crossexamined by ld. Addl. PP with the leave of the Court, with reference to his earlier statement. In his crossexamination by ld. Addl. PP, PW29 stated that he did not make statement Mark PW29/B dated 19.08.09 before the police officials of ACB. He further stated that he did not state before the police that on 03.08.09 the vehicle of the complainant met with an accident and complainant asked him to accompany him to PS Janakpuri or that he alongwith the complainant reached PS Janak Puri, where he met the driver Manoj Kumar/PW30 in the room of IO and the vehicle DL1YB1975 was found parked in the PS and they were came to know that FIR No. 197/09 had been registered against the driver for causing the accident. He also denied that he told the police that they talked to driver in isolation, who told them that C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 56 the case was with HC Prakash Chand who was demanding Rs. 5000/ for releasing him on bail and he also pointed towards accused Ct. Ashok Kumar and told them that he was demanding money. PW29 was confronted with portion A to A of his statement Ex. PW29/B, wherein it was so recorded. PW29 also stated that he had not told the police that accused Ashok Kumar told the complainant that they were charging Rs. 10,000/ in such cases but he (complainant) could pay Rs. 7000/ and when the complainant expressed his inability to pay the amount the same was brought down to Rs. 5,000/. PW29 also stated that he did not tell the police officials that thereafter complainant made a call to PW18/Devender Tomar, PW31/Sanjit Rana and PW34/ Kapil Chahal and called them to PS and that at about 10.30 PW34 reached and handed over Rs. 5000/ to the complainant. He was confronted from his statement Mark 29/B portion C to C wherein it was so recorded. PW29 also stated that he did not state before the police that complainant and PW18 were running a NGO and had planned to record the conversation between the police officials and the complainant told him that PW18 had reached the PS with a spy recorder or that at that time PW29 was weaving a TShirt that is why the complainant handed over Rs. C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 57 5000/ to him and told him (PW29) that he had to pay the amount to Ashok Kumar and complainant would record the transaction. He was again confronted with his statement wherein it was so recorded. He also stated that he had not told the police that after some time complainant reached with a spy camera installed in his shirt, he was confronted with his statement where it was so recorded and when Ct. Ashok demanded money, he (PW29) told him that it was Rs. 4000/ but accused Ashok Kumar demanded Rs. 5000/ and in compulsion he handed over Rs. 5000/ in the presence of complainant and the transaction was recorded between 10.00 to 10.45 AM. PW29 also denied having stated before the police that accused Ashok Kumar told him that he would hand over some amount to IO, he was confronted with his statement where it was so recorded and also stated that he did not state before the police that he met the police officials on 19.08.09 and a CD was played on computer and he identified his voice and the voice of complainant and accused Ashok Kumar in the recordings of 03.08.09 or that he identified accused in the recordings of 06.08.09. He also denied that he had gone to FSL, Rohini where his sample voice was taken, he was confronted with his statement Mark PW29/B, C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 58 wherein it was so recorded.
80. PW18 Devender Tomar stated that he had reached PS after receiving a call from complainant and installed a spy camera in the pocket of shirt of the complainant but did not accompany him for recordings the sting. PW19 Acharaya Anil Prakash, stated that PW18 informed him about the accident of vehicle of complainant and some police officials were demanding money to release the vehicle. He also stated that he alongwith PW18 reached PS. He also stated that he was carrying a spy camera and handed it to PW18 who installed it in the pocket of complainant but he did not accompany the complainant to record the conversation.
81. The IO also stated in his cross examination that he had collected the call detail record of PW18 but had not relied upon it. Thus, the IO also did not verify whether complainant contacted PW18 on 03.08.2009 and called him to PS Janakpuri.
82. PW21 Rajinder Prasad stated that on 06.08.09 he got information from the society about the accident and that one C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 59 constable was demanding money to release the vehicle. He also stated that he alongwith complainant, PW18 and PW19 reached PS Janak Puri at about 5.30 / 6.00 PM. By that time accused Ashok Kumar had already accepted Rs. 5000/ but was demanding more money. He also stated that a spy camera was installed in the pocket of complainant by PW18 and PW19 and he alongwith complainant went in the PS and they recorded the sting at Maalkhana on 06.08.09.
83. As regards demand or bribe, the complainant stated in the initial complaint Ex. PW37/A that on 03.08.09 his vehicle met with an accident and police officials were demanding Rs. 5000/ or else his driver would be lodged in jail and vehicle would not be released. It is significant to note that the names of both the accused were not mentioned in the initial complaint. The complainant thereafter gave another complaint Ex. PW37/B dated 17.08.09 mentioning therein, the names of both accused and the demand of Rs.7000/ which was brought down to Rs. 5000/ on the request of the complainant for release of his driver and vehicle. It is also significant to note that the complainant in his examination in chief stated that accused Ashok Kumar had C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 60 asked for a bribe of Rs. 25,000/ and on his request brought it down to Rs. 5,000/.
84. It may be noted that the complainant had made substantial improvements in his version as regards the demand and acceptance of bribe without their being any acceptable explanation for the same. In his examination in chief, the complainant stated that accused Ashok Kumar made demand of Rs. 25,000/ in the presence of PW29 and at that time accused Prakash Chand was also present. He further stated that he handed over the bribe money to accused Ashok Kumar whereas the case of prosecution was bribe amount was handed to the accused Ashok Kumar by PW29 on behalf of the complainant.
85. Both PW18 and PW19 stated that they had not accompanied the complainant to the PS at the time of recording. As PW29 had resiled from his previous statement he was cross examined by Ld. Addl. PP with the leave of the court, but nothing could be elicited in his cross examination by Ld. Addl. PP which could be of any help to the prosecution. PW29 categorically deposed in his examination in chief that no one C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 61 demanded anything in his presence nor he had accompanied complainant at any point regarding this case. In his cross examination by Ld. Addl. PP he denied that he stated before the police that accused Ashok Kumar demanded money from him and he handed over Rs. 5000/ to accused Ashok Kumar in the presence of complainant.
86. Thus, as there were material contradiction in the testimony of PW29 and the complainant on the material aspect of demand and handing over of bribe money to accused, their depositions cannot be relied upon without independent corroboration. Both PW29 and PW43 the complainant substantially contradicted their previous statements as a result of which their credited was substantially shaken.
87. Ld. Counsel for accused contended that onus to prove the case was on prosecution and that onus never shifts. It was further contended that it was the duty of the prosecution to bring home the guilt of accused beyond reasonable doubt and in this regard placed reliance upon 2010 [3] JCC 1842 SC, Banarsi Dass Vs. State of Haryana, as under: C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 62 "It is settled canon of criminal jurisprudence that conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in this regard."
88. Ld. Counsel for accused further contended that only the testimony of a witness which is consistent and matches with the version of every other witness, should be accepted by the court and such a witness can be called a sterling witness and in this regard placed reliance upon AIR 2012 SC 3157, Rai Sandeep alias Deepu Vs. State of NCT of Delhi, is as under: "(A) Evidence Act (1 of 1872), S.3Sterling witness - Qualities - Witness should be of high quality and calibre - His version should be unassailable and acceptable on its face value."
" 'Sterling witness' should be of a very high quality and calibre whose version should, C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 63 therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have corelation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed."
"Only if the version of such a witness qualifies, the above test as well as other C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 64 similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials namely, oral documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." (Para 15)
89. It was further contended by Ld. Counsel for accused the Hon'ble Supreme Court in Sampath Kumar Vs. Inspector of Police, Krishnagiri(SC), 2012 (2) RCR Crl. held that there were 3 categories of witnesses (i) those who are wholly reliable, (ii) those that are wholly unreliable and (iii) who are neither wholly reliable nor wholly unreliable. In this regard it was held as under :
"(i) There are three categories of C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 65 witnesses namely, (i) those that are wholly reliable, (ii) those that are wholly unreliable and (iii) who are neither wholly reliable nor wholly unreliable - In the case of the first category the Courts have no difficulty in coming to the conclusion either way - It can convict or acquit the accused on the deposition of a single witness if it is found to be fully reliable - In the second category also there is no difficulty in arriving at an appropriate conclusion for there is no question of placing any reliance upon the deposition of a wholly unreliable witness
- It is only in the case of witnesses who are neither wholly reliable nor wholly unreliable that the Courts have to be circumspect and have to look for corroboration in material particulars by reliable testimony direct or circumstantial.
AIR 1957 SC 614, relied.
[Para 12] Thus, in the light of above judgments it has to be seen whether reliance can be placed on the testimony of the complainant who made material improvements in his version C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 66 and PW29 who resiled from his previous statement. A party which confronts his witness with the leave of court with his previous inconsistent statement does so with the hope that the witness may revert to what he stated previously stated. If departure from the previous statement is not deliberate but due to faulty memory there is every possibility of the witness reverting to his previous statement, but PW29 did not support the case of prosecution despite his piercing cross examination by Ld. Addl. PP.
90. In so far as, the offences under the PC Act are concerned, the law is well settled that demand of illegal gratification is sine qua non to constitute an offence under the Act and in this regard it has been held in B. Jayaraj Vs. State of AP (SC) 2014 (2) RCR Crl as under :
"B. Prevention of Corruption Act, 1988, Sections 7 and 13(2) - Corruption case - Demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe.C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 67
2011 (1) RCR (Crl.) 183 : 2010(6) Recent Apex Judgment (RAJ) 636, relied. [Para 7]"
Further held :
"9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned , such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbcaring to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
91. Thus, proof of demand is an indispensable prerequisite for the offence u/s. 7 of the PC Act. In the absence of proof of demand the use of corrupt or illegal means or abuse of position by a public servant to obtain a valuable thing or pecuniary C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 68 advantage cannot be held to be established. Section 20 permits a presumption as envisaged therein, only in respect of offence u/s. 7 of the Act and not to those u/s. 13 (1)(d) (i) & (ii) of the Act and it could be raised only on proof of acceptance of illegal gratification. The proof of acceptance would follow only if there was proof of demand.
92. Thus prosecution had to prove beyond reasonable doubt that accused demanded and voluntarily accepted the money knowing it to be the bribe. The question for consideration is whether accused demanded any amount as illegal gratification to show any official favour and whether the said amount was received by accused as consideration for showing an official favour. It is only the depositions of PW21, PW29 and the complainant from which it has to be seen whether accused are guilty or innocent.
93. It is pertinent to note that in the initial complaint Ex. PW37/A dt. 11.08.2009 the complainant did not mention the names of the accused, but stated that police officials had demanded Rs. 5000/ and threatened that in case the said amount C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 69 was not paid then he and his driver would be booked in a case and sent to jail and his vehicle would not be released. It is also significant to note that thereafter in a second complaint Ex. PW37/B, dated 17.08.09, the complainant named both the accused and stated that accused had demanded Rs. 10,000/ as bribe which was brought down to Rs. 5000/.
94. As regards the demand of bribe by accused, PW34 stated that complainant called him on 3.8.2009 on his mobile phone no. 9810934353 and told him that his vehicle Travera driven by his driver/PW30 had met with an accident and asked him to arrange Rs. 5000/ to Rs. 10,000/ as police officials namely Prakash Chand and accused Ashok Kumar were demanding bribe for release of the driver and vehicle. PW34 stated in his cross examination that no amount was demanded by any of the accused in his presence nor he witnessed any money transaction between complainant and accused Ashok Kumar nor he heard the conversation between his brother and accused Ashok Kumar. PW34 denied that complainant did not inform him of an accident on 03.08.09 and also denied that the driver was released on bail from the spot. PW34 also denied that he did not go to PS C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 70 Janakpuri on 03.08.09. Ld. Counsel for accused further contended that PW34 made substantial improvements in his testimony before the court. It was contended that PW34 stated in his cross examination that he had not stated before the police officials of ACB that he met the complainant at 7.00 PM at PS Janak Puri and gave him the money, he was confronted with his statements Ex. PW34/DA where it was so recorded. PW34 further stated that he told the IO that complainant asked him to arrange Rs. 5000/ to Rs. 10,000/ but was confronted with his statement Ex. PW34/DA wherein only figure of Rs. 5000/ was mentioned. It was also contended on behalf of accused that PW34 did not go to PS Janak Puri on 03.08.09 nor he handed over any money to the complainant, as prosecution failed to prove that complainant made a call on the mobile phone of PW34 at about 7.00 PM on 03.08.09. In this regard IO stated that he had gone through the call details records of the mobile phone of PW34 and complainant but he could not tell whether he had mentioned the said fact in any document. Thus, I am of the view as the prosecution failed to bring evidence on record to show that the complainant contacted his brother PW34 on his mobile phone on the date of incident.
C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 71
95. Ld. Counsel for accused also stated that the prosecution failed to prove the amount of bribe demanded by accused. In this regard PW18 stated in his examinationinchief that complainant informed him that accused was demanding Rs. 15000/ to release his vehicle. However, complainant denied in his cross examination that he informed PW18 about the demand. PW19 stated that PW18 informed him that accused were demanding Rs. 5000/. The complainant stated in his initial complaint that accused demanded Rs.5,000/. But in the second complaint Ex.PW37/B, the demand was stated to be Rs.10,000/ and reduced to Rs.7,000/ and finally Rs.5,000/. But in his deposition in court, complainant stated that accused Ashok Kumar demanded Rs.25,000/ but agreed to accept Rs.5,000/. There were contradictions in the testimony of witnesses regarding the amount of bribe, thus, I find force in the submissions of Ld. Counsel that prosecution failed to prove the amount of bribe demanded by accused.
96. The prosecution relied upon the testimony of complainant and PW29 to prove the conspiracy entered into between the accused pursuant to which accused made demand of illegal C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 72 gratification. To prove the charge of conspiracy it was incumbent upon the prosecution to prove that the demand of illegal gratification was made by accused after an unlawful agreement was entered into between them. In other words both accused agreed to do an illegal act or legal act by illegal means. In this regard, complainant stated in his complaint Ex. PW37/B that accused Prakash Chand told him to talk to accused Ashok Kumar when he (complainant) asked him for release of his driver and vehicle. Thus, according to the prosecution accused Ashok Kumar committed an overt act with the knowledge of conspiracy whereas accused Prakash Chand tacity consented to the object of conspiracy and accused Ashok Kumar put the conspiracy into effect. It is, however, significant to note that complainant did not mention the names of both accused in his initial complaint and in his cross examination complainant admitted that he had not mentioned the names of both accused in the complaint Ex. PW37/A. Complainant also admitted that all the facts narrated by him in his complaint Ex. PW37/B were in his knowledge when he lodged the complaint Ex. PW37/A. The complainant stated in his crossexamination, that the complaint Ex.PW37/A was not in his handwriting and he could not tell who C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 73 had written it and further stated that it was written in the office of society by one of its official but it bears his signatures. Thus, the complaint Ex. PW37/A was not a natural and voluntary narration of events by the complainant but was drafted in the office of society by some one with malafide intention. In the complaint Ex. PW37/A there was also no mention of the fact that PW29 had accompanied the complainant to PS Janak Puri and accused Ashok Kumar made the demand in the presence of PW29 and the accused demanded and accepted the illegal gratification.
97. In most cases conspiracies are proved by circumstantial evidence. Both existence of conspiracy and its objects have to be inferred from the circumstances and conduct of accused. The circumstances before during and after the occurrence can be proved to decide the complicity of accused. Each one of the circumstances have to be proved beyond reasonable doubt. Section 10 of the Evidence Act is based on the principle of agency operating between parties to the conspiracy inter se and would come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 74 conspired together to commit an offences. Section 10 of the Evidence Act is as follows :
"10. Things said or done by conspirator in reference to common design. "Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiracy, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
98. The complainant disowned the initial complaint and the names of both accused were not mentioned therein. Moreover, PW29 did not corroborate the version of complainant regarding demand and acceptance of bribe by accused. Thus in my view, there was no prima facie evidence that both accused were party to a conspiracy.
C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 75
99. Thus, as complainant stated he did not know who wrote initial complaint Ex. PW37/A the contents of the same cannot be relied upon to come to the conclusion that it furnished proof of demand made by accused. PW43 was not reexamined on this aspect, the prosecution thus failed to explain the matter brought out in the cross examination of complainant in this regard.
100. Section 138 of the Evidence Act relates to reexamination and is as follows :
"138. Order of examinations. "Witnesses shall be first examinedinchief, then (if the adverse party so desires) cross examined, then (if the party calling him so desires) re examined.
The examination and crossexamination must relate to relevant facts, but the cross examination need not be confined to the facts to which the witness testified on his examinationin chief."
Direction of reexamination. "The reexamination shall be C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 76 directed to the explanation of matters referred to in cross examination; and, if new matter is, by permission of the Court, introduced in reexamination, the adverse party may further cross examine upon that matter."
101. As regards the demand and acceptance of bribe, the Ld. counsel for accused contended that the prosecution was bound to prove both the demands but since there were contradictions in the statement of complainant and other witnesses, the initial demand and the second demand were not proved.
102. Thus, on the crucial aspect of demand and acceptance the testimony of PW29 and PW43 were inconsistent and unreliable as the complainant disowned his initial complaint Ex. PW37/A and PW29 stated that he was not present with the complainant at any point regarding this case and noone demanded anything in his presence. Moreover, complainant stated in his cross examination that the facts mentioned in his complaint Ex.PW37/B were in his knowledge on 11.08.2009 when the complaint Ex. PW37/A was filed by him in ACB. Thus there C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 77 was no explanation given by the complainant as to why the names of accused persons were not mentioned in the complaint Ex. PW37/A.
103. As regards the testimony of a hostile witness, it has been held in Sat Paul Vs. Delhi Administration (1976) 1 SCC 727, that the entire testimony of a hostile witness need not be discarded and reliance could be placed on such portion of his deposition which appeared to be reliable. The relevant extract of the judgment is as under :
"It is a wrong assumption that the only purpose of cross examination of his own witness by a party is not contended on the witness being declared hostile or entire evidence being discarded", that the entire testimony of such witness could not be discarded and reliance on any part of statement of such a witness by both parties were permissible.
"The position is that even in a criminal prosecution when a witness is cross C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 78 examined 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 cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony"
104. Thus, while evaluating the evidence of hostile witness what has to be seen is whether his testimony stood altogether discredited or any part of the statement of such witness could be believed or relied upon. Now in the light of the above judgment, it has to be seen that whether testimony of PW29 stood wholly discredited or any portion of it could be relied upon. For weighing the evidence of a witness there is no general rule each case has its own features and each witness has his own peculiarities.
105. The proviso to Section 162 Cr.PC provides that statements C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 79 made to the police during investigation can used only for the purpose of contradicting a prosecution witness as provided under Section 145 of the Evidence Act and not for the purpose of corroboration. In this regard, it has been held in Sat Paul Vs. Delhi Administration (supra) as under : "Criminal Procedure Code, 1973 - Section 162 proviso - Statement made to police during investigation can be used only for the purpose of contradicting the prosecution witnesses under Section 145, Evidence Act - Held, cannot be used for purposes of corroboration."
"Suffice it to say that even on the assumption that it was admissible as conduct - and not as a 'statement' under Section 8. Evidence Act, its probative value in the circumstances of this case would be almost nil."
106. Section 161 & 162 Cr.PC are reproduced as under :
Section 161 Examination of witnesses by police. "(1) Any police officer making an investigation under this Chapter, or any C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 80 police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records"C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 81
Section 162 "Statements to police not to be signedUse of statements in evidence "(1) No statement is made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, in any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 82 statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the reexamination of such witness, but for the purpose only of explaining any matter referred to in his crossexamination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act."
107. Section 8 of the Evidence Act, is as under :
"8) "Motive, preparation and previous C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 83 or subsequent conduct "Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact".
"The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto".
108. On a careful perusal of testimony of PW29 and complainant, it is evident that they have made material contradictions in their versions. PW29 did not support the case of the prosecution whereas the complainant made substantial C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 84 improvements in his statement during the trial hence it is wholly unsafe to rely upon their uncorroborated testimony. The complainant made statement in the court which was inconsistent with the statement made before the police. The crediting of complainant thus stood shaken. Thus the court has to look for independent corroboration of his version but the same is not forthcoming. The complainant did not give any explanation for not revealing the true facts in his complaint and statement to the police. There was no corroboration of his version by any other independent evidence to probalilize his version that he handed over the bribe money to accused Ashok Kumar. Although there is no absolute rule that evidence of an interested witness cannot be accepted without corroboration, but as the versions given by complainant and PW29 were full of contradictions in my view it would be hazardous to accept their testimony in the absence of corroboration from independent source.
109. In Sampath Kumar Vs. Inspector of Police (Supra), reference was made to the decisions of State of Himachal Pradesh Vs. Lekh Raj & Another 2000 (1) RCR Crl 10 and State of Haryana Vs. Gurdial Singh & Pargat Singh AIR 1974 SC 1871 C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 85 wherein the difference between discrepancies and contradictions was explained and held as under :
"The difference between discrepancies and contradictions was explained by this Court in State of Himachal Pradesh V. Lekhraj Anr. 2000 (1) RCR (Criminal) 10 : (AIR 1999 SC 3916). Reference may also be made to the decision of this court in State of Haryana V. Gurdial Singh & Pargat Singh, (AIR 1974 SC 1871), where the prosecution witness had come out with tow inconsistent versions of the occurrence. One of these versions was given in the Court while the other was contained in the statement made before the Police.
This Court held that these are C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 86 contradictory versions on which the conclusion of fact could not be safely based. This Court observed:
"The present is a case where the prosecution witnesses have come out with two inconsistent versions of the occurrence. One version of the occurrence is contained in the evidence of the witnesses in court, while the other version is contained in their statements made before the police.....In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained."
11. Reference may also be made to the decision of this Court in Kehar C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 87 Singh and Ors. V. State (Delhi Administration), AIR 1988 SC 1883. This Court held that if the discrepancies between the first version and the evidence in Court were material, it was safer to err in acquitting than in convicting the accused."
110. Thus what makes the testimony of complainant doubtful is that despite having been a natural witness he made substantial improvements in his version without their being any explanation for the omissions and contradictions. The omissions are of very vital character and in my view the credibility of complainant was affected by the fact that he did not state the true facts in his complaint and version of the police.
111. Regarding the demand and handing over bribe, the statement made by complainant in court is in incomplete contrast with the statement made by him before the police and complaints Ex. PW37/A and PW37/B wherein he stated that PW29 had handed C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 88 over the bribe money to accused Ashok Kumar whereas he testified in the court that he handed over the bribe money to accused Ashok Kumar. The complainant did not give any cogent explanation which could be acceptable for not stating the said facts in the complaint and statement to the police.
112. Thus, on appreciation of evidence of complainant regarding the demand and acceptance of bribe by accused the evidence of complainant is rather shaky, in view of conflicting versions given by him in complaints Ex. PW37/A, PW37/B and deposition in court.
113. Ld. counsel for complainant contended that evidence of the complainant is to be treated as that of accomplice which requires corroboration. It was contended that giving of bribe was also an offence and section 12 of PC Act relates to punishment for abetment of offences, the same is as under :
"Punishment for abetment of offences defined in section 7 or 11 "Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abatement, shall be C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 89 punishable with imprisonment for a term which shall be not less than (three years) but which may extend to (seven years) and shall also be liable to fine."
114. As regards the conviction on the testimony of bribe given, it has been held in 1995 (3) SCC 351 M.O Shamshuddin Vs. State of Kerala (supra) that as under :
"A. Evidence Act, 1872 - Ss. 133 and 144 Ill. (b) Evidence of bribegiver Scope, nature and extent of corroboration needed - Meaning of the words 'accomplice' and 'corroboration' - Types and grades of accomplices - Distinction between a person who offers a bribe to achieve his own purpose and one who is forced to offer bribe under coercion - Former can be treated as an accomplice while the latter should be treated as an interested witness whose evidence requires corroboration in a general way and not in material particulars
- However, his evidence must be scrutinized carefully - Whether evidence of a forced bribegiver requires corroboration or not would be within the discretion of the court depending upon the facts and circumstances of each case - Corroboration can be by way of circumstantial evidence also."C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 90
115. Thus there is distinction between a person who offers bribe voluntarily and one who is forced to give bribe, the former is an accomplice while latter is an interested witness. In view of the above judgment thus if court is satisfied that the testimony of the bribe given is cogent and consistent, it could base conviction on it, in such a case, corroboration would be necessary only as a supporting evidence making the other evidence more probable.
116. Illustration (b) to Section 114 of the Evidence Act provides the court may presume that the accomplice is not worthy of credit, unless he is corroborated in material particulars. But the presumption is in the nature of a precaution, in appreciating the evidence of an accomplice. The discretion is with the court to see whether it requires corroboration or not in the facts and circumstances of the case on an overall consideration of the evidence of accomplice. However, in the present case, complainant gave contradictory versions and made substantial improvements in his deposition in the court. Therefore prosecution failed to establish that there was demand by accused or accused voluntary accepted bribe.
C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 91
117. It is also pertinent to note PW18, PW19 and PW34 stated that they were not present at the time of demand of bribe, hence their evidence was hearsay. PW18 stated that he was informed about the demand of bribe by the complainant. PW19 stated that he was informed of the demand of bribe by PW18. PW21 also stated that he was informed by members of the society about demand of bribe by accused. PW34 stated that he was informed about the demand of bribe by complainant. The testimony of these witnesses was not admissible being hearsay.
118. Section 59 of the Indian Evidence Act, which relates to proof of facts is as follows :
"59 - Proof of facts by oral evidence -
"All facts, except the contents of documents or electronic records may be proved by oral evidence."
119. Section 60 provides that oral evidence must be direct and is as under: "60. Oral evidence must be direct "Oral evidence must, in all cases C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 92 whatever, be direct; that is to say If it refers to a fact which could be seen, it must be the evidence of a witness who say he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 93 production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection."
Thus, the evidence of hearsay witness was not admissible in view of section 60 of the Evidence Act.
120. It was further contended by Ld. Counsel for accused that no explanation has been given by the prosecution why FIR was not registered on the complaint Ex.PW37/A though it disclosed commission of a cognizable offence. It was also contended that in this regard PW37/IO stated in his cross examination that as no C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 94 offence under the PC Act was made out and there were no detail of the incident mentioned therein, neither the names of the police officials were mentioned therein. Therefore, he did not recommend registration of FIR on the complaint Ex.PW37/A.
121. The prosecution also did not give any explanation as to why the FIR was lodged after seven days of the incident on a second complaint which contained material improvements. In the initial complaint, complainant did not make accusations against both accused, but after seven days complainant came forward with a second compliant disclosing the names of both accused. In this regard IO stated in his cross examination that he sought clarifications from the complainant about the delay in filing the complaint and he told him that time was generally taken in filing complaints. In my view the investigation by IO in this regard was not satisfactory. The delay in filing of second complaint remained unsubstantiated.
122. Ld. Counsel for accused further contended that IO did not verify from other members of the society about the allegations made in the complaints Ex.PW37/A and Ex.PW37/B and he C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 95 recommended registration of FIR on 17.8.2009 under compulsion as matter was reported in the Newspaper by the complainant on 16.08.2009. Ld. counsel for accused further submitted that the date of incident mentioned in rukka Ex.PW37/C was 3.8.2009 but IO in his crossexamination, admitted that no time of occurrence as mentioned in the rukka against the date 3.8.2009 at point DX. IO also stated that the time of occurrence mentioned in the FIR Ex.PW2/A was 6.30 PM at point DX and also stated that no offence was committed on 17.08.2009 at 6.30 PM.
123. The IO stated in his cross examination that complainant did not tell him the number of currency notes given to accused despite enquiry. The IO also did not verify the visit of complainant to PS Janak Puri on 03.08.09 and 06.08.09 and he also did not verify whether CCTV cameras were installed at PS Janak Puri. IO also admitted that no bribe money was recovered from accused. Thus, there was no proper investigation.
124. Ld. counsel for accused further contended that the transcription were ante dated and complainant stated in his cross C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 96 examination that he prepared the transcription Ex. PW3/B and PW3/C within 23 days of 11.08.09, but he denied the suggestion that they were ante dated. It is significant to note that the transcripts Ex.PW3/B and Ex.PW3/C bear the date 11.08.2009 whereas the complainant stated in his cross examination that he had prepared the transcript within 23 days from 11.08.2009. In this regard, IO stated in his cross examination that he did not make endorsement on the transcripts about verifying its contents with the CD. Thus the contention of Ld. counsel for accused that same were ante dated has substantial force.
125. There were also contradictions in the version of complainant and the driver PW30. Complainant stated that on the date of incident he had noticed a missed call of PW30 on his mobile phone, but PW30 did not corroborate the version of complainant as regards the said fact or that complainant was the owner of the abovesaid vehicle. PW30 stated that the said vehicle was owned by his brotherinlaw PW33. PW30 also stated that police reached the spot and arrested him and asked him to arrange a surety and at about 8.30 pm, his surety reached C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 97 the spot. The police then after completion of proceedings released him on bail from the spot whereas vehicle was taken to the police station. The complainant, however, stated that after he handed over Rs.5000/ as bribe to accused Ashok Kumar at about 10.30 pm outside PS Janakpuri, he went inside the police station and after 10 minutes his driver PW30 was released from PS. The versions of PW30 and complainant were thus contradictory. As PW30 resiled from his previous statement, he was crossexamined by Ld. Addl. PP with the leave of the court.
In his cross examination by Ld. Addl. PP PW30 denied that he made the statement Ex.PW30/A and Ex.PW30/B to the police officials of ACB. PW30 also denied that he had told the police that accused Prakash Chand and Ashok Kumar demanded Rs. 5000/ to Rs.7000/ from him for releasing him on bail. PW30 also denied that he had tried to contact the complainant from his mobile phone number 9910447248 but he (complainant) did not attend the call. PW30 also denied that he told the police that thereafter he made a call to his brotherinlaw PW33/Sumer Singh and requested him to arrange a surety and at about 6.30 pm, the complainant and his friend PW29 reached the police station and met him and he (PW30) told the complainant about C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 98 the demand of Rs.5000/ to Rs.7,000/ by both accused for releasing him on bail, he was confronted with portion B to B of his statement wherein it was so recorded. PW30 further denied that he told the police that at about 10 pm PW31 as well as PW33, complainant and PW34 went to the room of IO and PW31 asked accused Prakash Chand to release him on bail but accused Ashok Kumar did not release him as he was waiting for the bribe money and at about 11 pm, accused Ashok Kumar on the direction of accused Prakash Chand released him from police station. He confronted with his statement Mark PW30/DA portion D to D wherein it was so recorded. PW30 denied that he had told the police that when he came out from the police station, complainant and PW29 told him that accused Ashok Kumar had accepted Rs.5000/ and thereafter HC Prakash Chand had released him on bail, he was again confronted with portion E to E of his statement where it was so recorded. In his cross examination on behalf of accused he had stated that he was never employed with the complainant and neither he ever used the mobile no. 9910447248. He further stated that he had called his brotherinlaw PW33/Sumer Singh by using phone of passerby, after the accident. In this regard, IO denied in his C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 99 cross examination that PW30 and PW33 did not disclose their mobile numbers to him and also denied that PW30 did not give his statement u/s. 161 Cr.PC or that he had mentioned their fictitious numbers in their statements u/s. 161 Cr.PC. Thus, as contradictory versions given by PW30 and complainant about the demand of bribe and release of PW30 on bail, no reliance could be placed on their testimony.
126. PW31 Sanjit Rana who stood surety for PW30 also did not support the version of complainant that complainant called him on telephone and asked him to furnish surety for PW30. PW31 stated that one Narender informed him about the accident of vehicle of PW30 and asked him to furnish surety. PW31 further stated that at 8.30 pm, he along with Narender went to the place of incident in PS Janak Puri where PW30 Manoj Kumar was released on bail after completion of formalities. He further stated but no one demanded money from him to release PW30 on bail. As PW31 also resiled from his previous statement he was crossexamined by Ld. Addl. PP with the leave of the court. In his crossexamination by Ld. Addl. PP, he stated that he did not give the statement mark PW31/A to the police C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 100 and denied that he told the police that on the date of incident he along with complainant and PW34 reached the PS where accused Prakash Chand and Ashok Kumar were present and handed over the documents and requested accused Prakash Chand to release PW30 on bail. PW31 also denied that he had stated before the police that complainant met him outside the police station and informed him that he had paid Rs. 5000/ to accused Ashok Kumar on his demand to release PW30 on bail or that PW30 was released on bail at about 11.00 pm and thereafter they left the PS. PW31 also denied that he stated before the police that he came to know that both accused had made ante timed entry in the DD register showing the release of PW30 on bail at about 9.15 PM on 03.08.09. He also denied that he had told the police that on the date of incident he was carrying mobile phone no. 9212334879 which belonged to his uncle Jagpal Rana and he was using it and he received a call from the complainant on the above mobile. In his crossexamination by accused PW31 stated that he never used mobile phone no. 9212334879. He also stated that he did not know Jagpal Rana or the complainant and stated that Narender had informed him about the accident. In this regard IO denied in his cross C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 101 examination that PW31 did not give statement u/s. 161 Cr.PC or that he mentioned his fictitious number in his statement u/s. 161 Cr.PC.
127. PW33 Sumer Singh the owner of Tavera bearing no. DL 14 B - 1973 stated that he had purchased the vehicle no. DL1Y 1975 from the complainant. He also stated that on the date of accident his brother in law Manoj was driving the said vehicle. He further stated that as the vehicle met with an accident in the area of PS Janak Puri, Manoj/PW30 called him and asked him to arrange surety for him, but as he was in his native village, he called his friend Narender to furnish surety but Narender told him that he did not have proper documents. Thereafter, PW33 called his land lord Satpal Rana who sent his son PW31/Sanjeet Rana to furnish surety. As PW33 resiled from his previous statement, he was crossexamined by Ld. Addl. PP. with the leave of court with reference to his earlier statement. In his crossexamination by Ld. Addl. PP, PW33 stated that he did not give statement Ex.PW33/A to the police. He denied that PW30 conveyed to him about the demand of Rs.10000/ by accused for releasing him or that accused had taken Rs. 5000/ for the said C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 102 purpose. In his crossexamination by accused he stated that PW33/DA was a agreement dated 07.06.09 executed by complainant in his favour for sale of Tavera vehicle no. DL 1Y B 1975 which bears his signatures and that of the complainant. He also stated that he had not got the vehicle transferred in his name. IO in his cross examination denied that PW33 did not give statement u/s. 161 Cr.PC. Thus from the testimony of PW33 it was evident that on the date of accident, complainant was not the owner of the vehicle and he had filed the complaints Ex. PW37/A and PW37/B with malafide intention.
128. It was next submitted by Ld. counsel for accused that accused Ashok Kumar was not associated in the investigation of the case u/s. 279/337 IPC as was evident from the DD entry No. 88B dt. 3.8.2009 relating to the accident case FIR No. 197/09 u/s 279/337 IPC, PS Janak Puri Ex.PW5/B(colly.), according to which accused HC Prakash Chand was the IO of the said case and he was accompanied by Ct. Rajpal for investigation. It was further submitted that as per DD No. 88B Ex.PW5/B, PW30 was released on bail from the spot. In this regard, PW8 stated in his cross examination that HC Prakash Chand and Ct. Rajpal made C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 103 DD entry No.88B in respect of release of PW30 on bail at 9.20 pm. PW25 the then SHO PS Janak Puri deposed that case FIR No. 197/09 U/s 279/337 IPC was registered at PS Janak Puri on 3.8.2009 and was investigated by HC Prakash Chand and as per record Ct. Rajpal had accompanied HC Prakash Chand for investigation. PW25 proved that attested copies of the rojnamcha, duty roster was Ex.PW5/B(colly.). Thus, accused Ashok Kumar was not associated with the investigation of the accident case.
129. It was further submitted by Ld. Counsel for accused that there was no motive for the demand of bribe by accused after the PW30 was released on police bail from the place of incident as per DD entry No. 88B and the testimony of PW30 and PW31. It was also contended the vehicle involved in the accident could not have been released by the IO on superdari, it could only be released by court. Therefore, prosecution failed to prove any motive on the part of the accused to demand bribe after the release of the driver on police bail from the spot. It was submitted that as per the version of PW30 he was also released on police bail at about 8.30 PM, thus the demand of bribe made C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 104 by accused in PS thereafter was highly improbable. Both PW30 and PW31 did not support the version of complainant as regards the fact that PW30 was released from PS Janak Puri after payment of bribe at about 10.30 PM. The complainant was confronted with his complaint Ex. PW37/B where the time of payment of bribe being 10.30 AM was not mentioned. Thus, the prosecution could not prove the motive for demand and payment of bribe at 10.30 PM. The prosecution thus failed to prove that on the date of accident the driver was in police custody at the time when accused Ashok Kumar demanded bribe from the complainant in the presence of accused Prakash Chand in PS Janakpuri, as there were material contradictions in the testimony of complainant, PW30 and PW31 with regard to the release of driver on police bail.
130. It was further submitted by Ld. counsel for accused that the evidence of stock witnesses was not reliable as they had joined investigation/traps organized several times by ACB or police and they could nor thus be considered as independent witness and in this regard placed reliance on Pyare Lal Vs. State, I (2008) DMC 806, (Delhi), wherein it has held as under: C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 105
"15......For this view, I am fortified by a decision of the Hon'ble Supreme Court in G.V. Nanjundiah Vs. State, 1987 (Supp.)SCC 266, which was also a case of bribery and one of the Panchwitnesses in that case had been associated in traps organized by the CBI on three or four occasions and because of that fact he was not considered to be an independent witness by the Hon'ble Supreme Court."
131. It was submitted that PW3 Girdhar Prasad, stated in his cross examination that he joined duties as panch witness 10 times in ACB. PW7 Pankaj Stated in his crossexamination that he had joined duties in ACB as panch witness about 4/5 times prior to this case. PW9 Jaswant Singh stated in his cross examination that he was earlier deputed as panch witness in ACB about 10 times. PW10 Manoj Damodarn stated in his crossexamination that he had joined duty as a panch witness twice. Panch witness PW24 Jagdish stated in his cross examination that he had joined duties as panch witness 8/10 times whereas PW28 stated that he had joined duties as panch witness about 34 times. Thus, I am of the view that as panch witnesses were associated in trap cases or other cases of bribery several times they could not be considered to be independent C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 106 witnesses. It is also pertinent to note that the panch witnesses were not witnesses to demand and acceptance of bribe but were joined in the investigation.
132. It was further submitted by Ld. counsel for accused that the electronic evidence was inadmissible in view of the Judgment of Anvar P.V Vs. P.K. Basheer, (2014) 10 SCC 473 wherein, it has been held that in case the original recordings are not available secondary evidence should be supported by certificate u/s 65 B of the Indian Evidence Act before it could be received in evidence. It was further submitted by Ld. counsel for accused that the complainant stated that he made recordings with the spy camera and he then handed over the spy camera to PW18 who transferred the contents in the office computer and prepared 2 CDs, whereas PW18 in his cross examination, stated that copies of recordings were prepared by complainant and also stated that the original recordings was not deleted from the spy camera. The complainant, however, stated in his cross examination that from the PS he went home on 03.08.09 and did not go to the office of society in the intervening night on 3/4.08.2009. Thus, the version of PW18 and complainant are C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 107 contradictory regarding returning to the office of Society on 03.08.2009 and preparation of CDs. The complainant had stated in his statement Ex. PW3/D before the IO that he had deleted the original records from the spy camera after it was saved in the computer of the society. In this regard, IO had stated in his cross examination that complainant did not hand over the original recordings though he had demanded the original recordings. IO also stated that complainant told him that the original recordings were transferred to the hard disc of computer of the society and he did not take the hard disc into possession. IO further stated that he did not obtain the certificate u/s. 65B of the Evidence Act from the complainant. Complainant also stated in his cross examination that IO did not obtain the certificate u/s. 65B from him. IO further stated that he did not check the camera before seizing it to verify whether there was any recording in it. IO further stated that he did not make any recording from the camera to satisfy himself whether the device was a camera or not. IO also stated that he could not remember whether he mentioned in the seizure memo that camera was functional or not. IO also stated that during investigation it was not revealed as to who prepared the copies of the recordings. IO also testified C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 108 that the complaint and CD remained with the SO branch w.e.f 11.08.2009 to 17.08.2009 and further stated that he did not record the statement of any official regarding the safe custody of the complaint and CD for the period 11.08.2009 to 17.8.2009.
133. It was also submitted by Ld. counsel for accused that the spy camera was handed over by the complainant on 21.08.09 which was not kept in safe custody. It was submitted that the tampering with the same thus could not be ruled out and in this regard placed reliance on AIR 1986 SC 3 Ram Singh Vs. Col. Ram Singh, wherein it has been held as follows:
"(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible."
134. Ld. counsel for accused further contended that in the absence of original recordings, secondary evidence had to be supported by certificate u/s 65 B of the Indian Evidence Act. It was submitted that the recordings made by spy camera and the audio video cassette were electronic record as defined in the C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 109 Information Technology Act (in short, IT Act). Section 29 of the IT Act defines electronic record as follows: Section 2(1)(t) of I.T. Act, 2000 "Electronic Record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche"
135. It was further submitted by Ld. counsel for accused that the recording contained CDs were not admissible in evidence for want of original certificate u/s 65 B of Indian Evidence Act and in this regard placed reliance upon Anvar P.V Vs. P.K. Basheer, supra, wherein it has been held as follows:
"A. Evidence Act 1872 - Ss. 65A, 65B and 62
- Electronic record - Primary and Secondary evidence of - Admissibility - Provisions applicable - Held, admissibility of secondary evidence of electronic record depends upon satisfaction of conditions as prescribed under S. 65B - Those conditions under S. 65.B, enumerated - On the other hand, if primary evidence of the electronic record is adduced i.e. C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 110 the original electronic record itself is produced in court under S. 62, then the same is admissible in evidence, without compliance with conditions in S. 65B."
"B. Evidence Act, 1872 - S. 65B(4) - Secondary evidence of electronic record - Producing copy of statement pertaining to electronic record in evidence not being the original electronic record - Mandatory pre requirement - Held, such statement has to be accompanied by a certificate as specified in S. 65B(4) - Essential ingredients of such certificate, enumerated - Held, such certificate must accompany electronic record like CD, VCD, pen drive, etc., which contains the statement which is sought to be given as secondary evidence, when the same is produced in evidence - In absence of such certificate, secondary evidence of electronic record cannot be admitted in evidence, as in present case."
"C. Evidence Act, 1872 - Ss. 65A, 65B, 59, 62, 63 and 65 - Secondary evidence of electronic records - Admissibility and proof - Governing provisions - Held, are the special provisions contained in Ss. 65A and 65B, and not general law as contained in Ss. 63 and 65 - General law in Ss. 63 and 65 shall yield to C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 111 special law in Ss.65A and 65B - Interpretation of Statutes - Subsidiary Rules - Generalia specialibus non derogant - Applicability."
"D. Evidence Act, 1872 - Ss 45A and 65B - Applicability of S.45A - Stage - Held, it is only when electronic record is duly produced in terms of S.65B of Evidence Act, that question arises as to its genuineness - At this stage, court can resort to provisions of S.45A i.e., opinion of Examiner of Electronic Evidence - Information Technology Act, 2000, S.79A"
"E. Evidence Act, 1872 - Ss 65B, 62 and 59 - Electronic record - Secondary evidence of - Proof by oral evidence - Held, not permissible if requirements under S. 65B are not complied with."
"F. Evidence Act, 1872 - S.65B - Secondary evidence of electronic records - Admissibility and proof - Safeguards provided under S.65B
- Purpose - Held, safeguards are to ensure the source and authenticity of electronic records - As electronic are records are more susceptible to tampering, altering, transposition, excision, etc., without such safeguards, whole trial based on proof of electronic records can lead to travesty of justice."C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 112
"G. Evidence Act, 1872 - Ss.65A, 65B and 3 - Evidence - Electronic record - Nature of - Held, is documentary evidence."
Section 65 B of the Evidence Act which relates to admissibility of electronic records is as follows :
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as "the computer output") shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and all shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in subsection (1) in respect of a computer output shall be the following, namely
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 113 carried on over that period by the person having lawful control over the use of the computer ;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities.
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of subsection (2) was regularly performed by computers, whether
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period;
or C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 114
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 115 any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."
C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 116
136. Reliance was also placed by Ld. Counsel for accused upon 2014 (8) LRC 236(Del) Achchey Lal Yadav Vs. State as follows:
"Evidence Act, 1872 Section 65BElectronic evidence - Admissibility - Case relating to kidnapping for ransom and murder of five years old child - Computer generated electronic evidence is admissible at a trial in the manner specified by Section 65B of Evidence Act - Subs.(1) of Section 65B makes admissible as a document, paper printout of electronic records stored in optical or magnetic media produce by a computer, subject to fulfillment of conditions specified in subs.(2) of Section 65B of the Act - Compliance with subs.(1) and (2) of Section 65 B is enough to make admissible and prove electronic records - If witnesses depose concerning computer print outs of call details generated they must speak the facts to establish that clauses (a) to (d) of subs (2) of Section 65B or subs. (3) thereof, as the case may be, are satisfied - Call details records pertaining to telephone connections not proved in compliance with provisions of Evidence Act - Conviction set aside and matter remanded back to trial court with a direction that further evidence would be led C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 117 as required by law.
[Paras 14 to 17]
137. The witnesses who deposed regarding the electronic record were PW3 Girdhar Prasad/panch witness who stated that in his presence complainant produced one CD and transcript before the IO who took the same into possession vide memo Ex. PW3/A. PW5 Ct. Rajpal stated that during investigation, he had identified the image and voice of accused Ashok Kumar after seeing the CD and the memo of identification of voice and image was prepared which was Ex.PW5/C. PW6 S.S. Satbir Singh also stated that he has identified the image and voice of accused Ashok Kumar and stated that Ex.PW5/C also bears his signatures. PW7 Pankaj Katiyal panch witness also stated that he was a witness to Ex.PW5/C. PW9 panch witness Jaswant Singh stated that sample voice of accused Ashok Kumar was recorded in his presence at FSL and a cassette was taken into possession vide memo Ex.PW9/A was prepared in this regard which bears his signatures. Panch witness PW10 Manoj Damodaran was the witness to the disclosure statement made by accused Ashok Kumar which was Ex.PW10/A. He also stated that accused Ashok Kumar after seeing the CD identified his C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 118 image and voice in his presence. But in his crossexamination witness stated that he was sitting outside and was called after the disclosure statement was prepared. PW11 HC Satdev Singh stated that he had joined the investigation with IO and panch witness PW9 and stated that sample voice of accused Ashok Kumar as well as his voice was recorded at FSL and copy was prepared. The cassettes were then taken into possession vide seizure memo Ex. PW9/A. PW20 Panch witness Chanderkant Sharma stated that 2 CDs dt. 3.8.2009 and 6.8.2009 were played before him and PW29 Sanjay Kumar identified his voice and voice of complainant and accused Ashok Kumar. PW22 HC Jai Krishnan stated that he and PW10 had joined the investigation when the accused Ashok Kumar identified his voice and image in the CD.
138. PW25 Inspector Ramesh Kumar, the then SHO PS Janak Puri stated that he was called to PS Anti Corruption Branch where the audio video CD was played and he identified the image of accused Ashok Kumar but the conversation was not audible. He further stated that the memo in this regard was prepared which was Ex.PW25/A bears his signatures but in his C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 119 crossexamination by Ld. Addl. PP he stated that when his signatures were obtained on Ex.PW25/A after it was already written. PW26 Ct. Kuldeep Singh collected the exhibits from MHC(M) and deposit the same in FSL.
139. PW28 R.K. Rohilla, panch witness stated that he had joined the investigation and in his presence PW25 identified the voice and image of accused Ashok Kumar in the CD played in their presence. PW32 HC Phool Chand stated that he was posted as MHC(M) PS: Janak Puri on 26.8.2009 and he along with HC Ram Kishore and HC Nempal went to ACB along with daily diary register Ex.PW5/B. He further stated that he was shown a CD on 24.08.2009 in the ACB Office and he identified the voice and image of accused Ashok Kumar. PW38 Dr. C.P. Singh Asstt. Director, FSL who proved the FSL result Ex.PW38/A, where it was stated that as the device could not be operated in the laboratory it was not possible to say whether records in the CD Ex. P1 and Ex. P2 recorded by it or otherwise.
140. In view of Section 61 of the Evidence Act, contents of the documents have to be proved either by the primary evidence C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 120 or secondary evidence. Section 62 of the Evidence Act provides that primary evidence is to be produced for the inspection of the court. Section 65 of the Evidence Act relates to cases in which secondary evidence relating to documents may be given. Sub Section (d) of section 65 provides that secondary evidence of the contents of the document is admissible when the original is of such a nature as not to be easily moveable. As computerized operating system cannot be brought to the court, thus, the information stored in the computers is produced thereform is by taking a print out. Sub Section (1) of Section 65 B makes admissibile of electronic records, subject to satisfaction of conditions mentioned therein.
141. Thus as held in Anvar P.V Vs. P.K. Basheer, (2014) 10 SCC 473 (Supra) and Achhay Lal Yadav, 2014 (8) LRC 236 Delhi as the IO did not obtain a certificate u/s. 65B of the Evidence Act in respect of the CDs Ex. P1 and Ex. P2, therefore the same cannot be admitted in evidence. Thus, the case set up by prosecution regarding the demand and acceptance of bribe on the basis of recordings in the CD was not proved as the CDs were not admissible in evidence since the mandatory C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 121 requirement of Section 65B of the Evidence Act was not satisfied.
142. It is an admitted case of the prosecution that original recordings were deleted. Thus, the prosecution did not adduce primary evidence. The purpose of Section 65B is to sanctify secondary evidence in electronic form generated by computer. Thus, as held in Anvar P.V(supra) that if the electronic evidence is produced in terms of Section 65 B of the Evidence Act only then the question arise as to the genuineness thereof and in that situation resort can be made to Section 45 A of the Evidence Act which relates to opinion of examiner of electronic evidence. It is significant to note that PW38 stated that the device could not be operated in the Laboratory, therefore, it was not possible to say whether Ex.P1 and P2/CDs were recorded by the said device. Thus, the case of prosecution on the basis of sting operation falls to the ground.
143. The Ld. counsel for accused further stated that site plan was not prepared by IO and in this regard IO had admitted in his crossexamination that he did not prepare the site plan. Ld. C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 122 counsel for accused submitted that the site plan ought to have been prepared to show the description of place of demand and acceptance of bribe and was vital part of investigation and in this regard placed reliance on 2015 (3) LRC 380 (Del)(DB) State Vs. Sunil Kumar @ Sagar @ Rahul & Ors. as under: "Site PlanNecessitySite plan is a vital part of the investigation and that it should give a clear description of the spot to which it belongs but the site plan relied upon by the prosecution no where shows existence of adjoining houses or shop where public persons could have been found - Even no attempt is shown to have made to join any public person during the entire investigation - Trial court rightly disbelieved the version of prosecution."
Reliance has also placed on Vijay Singh Vs. State, 2005 Cr. L.J. 299 (MP) (DB) which is as under :
"(A) Penal Code (45 of 1860), S. 300 Murder - Appreciation of evidence -
Death caused by gun shot injury -
Specific statement by solitary eyewitness that accused fired single shot - Belied by reliable medical evidence - Presence of said eye witness at place of occurrence, C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 123 doubtful - Serious infirmity in preparation of site plan by Investigating Officer Recovery part of investigation as to seizure of empty cartridge and bullet, not connecting accused with offence - Delay in sending empty cartridge and fire bullet to Forensic Science Laboratory, not explained -
Accused was not arrested from place of occurrence but was called from his village by constable - Raises serious doubt that accused was present at place of occurrence - Accused, held entitled to acquittal.
(Para 21, 22, 26, 27, 28) "(B) Evidence Act (1 of 1872), S. 3 -
Evidence - Preparation of site plan - Is not mere formality but it is essential feature in order to reach firm conclusion by Court as to whether offence was committed by accused or not - Serious infirmity in site plan as it does not indicate that from which place accused fired gun and place where deceased was standing Benefit would go to accused."
144. Thus as the site plan was not prepared, it was a lapse on part of the investigating agency and the place of demand and C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 124 acceptance was not proved. The preparation of site plan is not a mere formality as held in Vijay Singh (supra).
145. For the foregoing reason, I am of the view that the prosecution failed to prove its case against the accused beyond reasonable doubt. Both accused are accordingly acquitted. Their bail bonds are cancelled and sureties discharged. File be consigned to Record Room.
Announced in the open court on this 28th day of March, 2016 (Poonam Chaudhry) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No.07/14 State Vs. Ashok Kumar Etc. Page No. 125