Delhi District Court
C.B.I. vs . 1. Dalip Pawar on 7 August, 2012
IN THE COURT OF SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Addl. Sessions Judge
CC No. 16/11
Unique Case ID No. 02401R02373232006
C.B.I. Vs. 1. Dalip Pawar
S/o Sh.Naratru Ram Pawar
R/o Flat No.13A, Sector12,
Police Colony, R.K.Puram,
New Delhi
Permanent address:
V & PO Haroboi, PS Karshoge,
Distt. Mandi, Himachal Pradesh
2. Yogender
s/o Iqbal Singh,
r/o Vill. &PO Patla, PS Newari,
Distt. Ghaziabad, U.P.
RC No. : 4(A)/06
u/Ss : Sec. 120B IPC and Sec. 7 of PC 1988 Act & 13(1)(d) of
PC Act r/w 120B IPC
Judgment announced on 01.08.2012
Date of order on sentence : 07.08.2012
CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 1 of 51
ORDER ON SENTENCE
Present : Sh. DK Singh, Ld. PP for CBI.
Sh. Nawal Kishore, Ld. Counsel for Convict Dalip Pawar
Sh. Mohinder Singh, Ld. Counsel for Convict Yogender Kumar
1.0 Convicts Dalip Pawar and Yogender Kumar have been found
guilty for the offence of conspiracy u/s 120B IPC and for the offence u/S. 7
and Sec. 13(1)(d) r/w Sec. 13(2) PC Act r/w Sec. 120B IPC of the POC Act
for having taken gratification from the complainant and also for having
abused his position as a public servant and obtaining pecuniary advantage
from the complainant by corrupt or illegal means.
2.0 Sh. DK Singh, Ld. PP for CBI has raised an emotional
argument and submitted that this country is being branded as one of the most
corrupt nation in the world as observed even by Supreme Court in Billa
Nagul Sharief Vs. State of A.P. AIR 2010 SC 3459 and therefore the
convicts are to be delivered maximum punishment. Ld. PP for CBI has also
placed that worldwide, Courts are passing deterrent sentence in the
corruption cases. In China, death sentence was delivered to a top Chinese
Telecom Executive and leader of Communist Party in the case of corruption.
The Chinese Court also ordered confiscation of personal assets and stripped
the accused of his political rights. The image of police in the eyes of the
public is very bad and therefore the police officials, who are found guilty,
should be dealt with harshly so that message must go to all corrupt police
CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 2 of 51
officials that corruption is a very risky business. Ld. PP for CBI cited Tilak
Prakash Khullar Vs. State of Haryana AIR 1979 SC p/1820 in support of
his contentions.
3.0 Per contra, Sh. Nawal Kishore, Ld. Counsel for convict Dalip
Pawar submitted that convict has two unmarried daughters, who are still
studying, and if the convict is sent behind the bars, it will jeopardize the
future of the entire family. Ld. Counsel has prayed for a lenient view.
3.1 Similary, Sh. Mohinder Singh, Ld. Counsel for convict
Yogender Kumar has also prayed for the lenient view on the ground that
convict Yogender Kumar has three small children ranging between 3 to 10
years. Yogender Kumar is the sole bread earner of the family and also sole
support of his unmarried sister and an old and ailing mother of 70 years of
age, and in case, he is sent behind the bars, the entire family would be
ruined.
4.0 It needs no special insight to observe that our society is badly
affected with the corruption by the public servants. The disease of
corruption is spreading like a cancer and therefore stringent measures are
required to be adopted for curbing this menace. The corruption cases are
difficult to be proved beyond reasonable doubt and if such cases are proved,
the punishment awarded in such cases should be consistent with the
CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 3 of 51
enormity of the offence. Any lenient view in awarding the punishment may
be considered as an incentive to public servant who are susceptible to
corruption to indulge in such nefarious practices with immunity. In
Abhimanyu Vithalrao Jadhav Vs. State of Maharashtra 1991 Crl. L. J
2085, it was held that loss of post and anguish of a long trial cannot be
mitigating circumstances for the purpose of awarding punishment.
Corruption at any level by any person, of any magnitude is condemnable
which cannot be ignored. However, if the corruption is practiced by the
police officer, it is much more serious. The police force was formed for the
purpose of protecting the common man of this country. The police officials
are entrusted with the duty to carry out honest investigation. If a police
officer indulges in corruption, it has to be seriously deprecated and no
leniency can be shown to them. The populous or sympathetic approach in
such cases would be counter productive. It is a matter of common knowledge
that generally people do not make complaint against corrupt police officials,
as the giver of the bribe also gains advantage and only in the rare cases, the
giver of the bribe comes forward and approaches the law machinery. It is
pertinent to mention here that the person in the net of the law and held guilty
may not be a first timer corrupt. Such persons may have been indulging into
corrupt activities for a long number of years, however, to their luck, were not
caught earlier.
5.0 In the present case, as I have discussed in detail in my judgment,
CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 4 of 51
the convicts who were the IO and recovery witness in the NDPS Case against
the complainant, were interacting with the complainant shamelessly. They
had been going with him in the hotels and restaurants and meeting him time
and again. This court is conscious of the fact that complainant himself is
also not a very clean person, but once his testimony is found to be reliable
and trustworthy, the character or background of the complainant would not
help the convicts in the quantum of sentence. This court also considers with
all sympathy the fate of the children of the convicts, but the law has to take
its own course. The convicts, who were police officials and were posted in a
very sensitive branch dealing with the narcotics, indulged in corrupt
practices.
6.0 I consider that the emotional argument raised by the Ld.
Counsels for the convicts has not been able to persuade myself to take a
lenient view. Taking into account the totality of the facts and circumstances,
convicts Dalip Pawar and Yogender Kumar are sentenced as under:
Convict Dalip Pawar :
1. Under Section 7 of the POC Act r/w Sec. 120B IPC - RI for 3 years
and 6 months and fine of Rs. 15,000/ in default of payment of fine, SI
for 6 months.
2. Under Section 13(1) (d) r/w Section 13 (2) of PC Act r/w Section
120 IPC - RI for 3 years and 6 months and fine of Rs. 15,000/ in
default of payment of fine, SI for 6 months.
CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 5 of 51
3. Under Section 120 B IPC RI for 3 years and fine of Rs. 10,000/ in
default of payment of fine, SI for 6 months.
Convict Yogender Kumar
1. Under Section 7 of the POC Act r/w Sec. 120B IPC- RI for 3 years
and 6 months and fine of Rs. 10,000/ in default of payment of fine, SI
for 6 months.
2. Under Section 13(1) (d) r/w Section 13 (2) of PC Act r/w Section
120 IPC - RI for 3 years and 6 months and fine of Rs. 10,000/ in
default of payment of fine, SI for 6 months.
3. Under Section 120 B IPC RI for 3 years and fine of Rs. 5,000/ in
default of payment of fine, SI for 6 months.
7.0 All the sentences in case of both the convicts shall run
concurrently. Benefit of Sec. 428 Cr.PC be given to the convicts. A
copy of judgment and order on sentence be supplied to the convicts free
of cost.
8.0 File be consigned to Record Room.
Announced in the open court (Dinesh Kumar Sharma)
today on 07.08.2012 Spl. Judge(PC Act) CBI: N. Delhi
CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 6 of 51
IN THE COURT OF SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Addl. Sessions Judge
CC No. 16/11
Unique Case ID No. 02401R02373232006
C.B.I. Vs. 1. Dalip Pawar
S/o Sh.Naratru Ram Pawar
R/o Flat No.13A, Sector12,
Police Colony, R.K.Puram,
New Delhi
Permanent address:
V & PO Haroboi, PS Karshoge,
Distt. Mandi, Himachal Pradesh
2. Yogender
s/o Iqbal Singh,
r/o Vill. &PO Patla, PS Newari,
Distt. Ghaziabad, U.P.
RC No. : 4(A)/06
u/Ss : Sec. 120B IPC and Sec. 7 of PC 1988 Act & 13(1)(d) of
PC Act r/w 120B IPC
Date of Institution : 29.04.2006
Received by transfer on : 24.09.2011
Arguments concluded on : 28.07.2012
Date of Decision :01.08.2012
CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 7 of 51
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. Nawal Kishore, Ld. Counsel for accused Dalip Pawar (A1)
Sh. Mohinder Singh, Ld. Counsel for accused Yogender Kumar (A2)
JUDGMENT
Chargesheet 1.0 Shri Raj Kumar Gupta s/o Shri Gyan Prakash Gupta, r/o B50, New MIG Flats, Mayur Vihar, PhaseIII, New Delhi (hereinafter referred to as Complainant) an accused in FIR No. 75/2005 u/s 21/61/85 NDPS Act, PS Narcotics Branch, Kamla Market, New Delhi, was released on interim bail in Jan. 2006 till 28.02.2006. In this case, Dalip Pawar (A1) was the initial IO and Yogender Kumar (A2) was the recovery witness, in which certain contraband items were seized/recovered from the possession of the said Shri Raj Kumar Gupta. Sh. Raj Kumar Gupta filed a complaint (Ex. PW8/C) dt. 25.02.2006, alleging therein that Shri Dalip Pawar, IO and Shri Yoginder, Constable, have been demanding bribe on the pretext of helping him. On 24.02.2006, at around 1011PM, both the above named officials met complainant and demanded Rs.1 lac bribe, as a consideration for helping him in this case, and had for that purpose required him i.e. complainant to meet them on 25.02.2006 at around 4.154.30PM in Pandara Road Market, New Delhi.
CBI after discreet verification registered a regular caseRC AC2 CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 8 of 51 2006 A0004 on 27.02.2006 against Shri Dalip Pawar and Shri Yoginder of Delhi Police, PS Narcotics, Kamla Market, Delhi for offences punishable u/s 120B IPC r/w sec.7 of Prevention of Corruption Act, 1988. Complainant was asked by the accused persons to meet them at around 2 p.m., on 27.02.2006, near UPSC on Shahjahan Road New Delhi. CBI joined Sh. S.S. Khichee (PW1) and Sh. Shankar Lalr (PW2), independent witnesses and necessary pre trap formalities were completed in CBI Office. The complainant produced currency notes of Rs.20,000/, which were to be paid to the accused persons. The complainant was also handed over a digital Voice recorder for secretly recording the conversations with the accused persons.
Thereafter, the complainant left in his own car, secretly followed by the trap team comprising of CBI officers and two independent witnesses and reached near UPSC office, where he was joined by both the accused police officials and they proceeded towards Chanakya Puri, and finally, around 1445 hrs. they reached Nehru Park and sat on a mound in the open. All throughout they were discreetly followed and kept under watch by the team of CBI Officers accompanied by two independent witnesses. At around 1600 hrs., the accused persons and the Complainant got up and started moving. At this stage the complainant gave a predecided signal. Immediately the CBI trap team, including the two independent witnesses, rushed forward and intercepted both the said police officials, after disclosing their identity. The above named accused police officials were thereafter CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 9 of 51 challenged by Shri Vipin Kumar, Inspector, CBI, ACUII, New Delhi of their having demanded and having received bribe of Rs.20,000/ from the complainant. Independent witnessesS/Shri S.S.Khinchee (PW1) and Shankar Lal (PW2) also confirmed having seen the transaction. Shri Raj Kumar Gupta, the complainant informed that Shri Dalip Pawar demanded bribe and accepted the same in his right hand and after counting, handed over the same to Shri Yoginder Kumar, Constable, who kept the same in the right side pocket of his pant. The trap formalities were thereafter completed, resulting in obtaining of the handwash of both the accused, recovery of the bribe money of Rs.20,000/, besides the wash of the pant pocket of accused Yoginder, wherefrom the bribe amount was recovered. The tainted bribe money was seized and both the accused were placed under arrest immediately. The recovery memo Ex. PW1/C was prepared.
Investigation revealed that accused Shri Dalip Pawar was posted as Asstt. Sub Inspector of Police at PS Narcotics, Kamla Market, New Delhi since 04.07.2005 and accused Shri Yoginder Kumar was posted as a Constable at PS Narcotics, Kamla Market, New Delhi since 30.06.2005.
Investigation further revealed that Chargesheet had since been filed by Delhi Police against Shri Raj Kumar Gupta, in the above mentioned case under NDPS Act and the said case was under trial before the designated Court. Investigation revealed that both the above named accused had been demanding bribe from Shri Raj Kumar Gupta for making favourable depositions, benefiting him, in the Court.
CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 10 of 51
During investigation, call details of both accused and the complainant were also obtained, and analysis thereof revealed that both the accused were in constant touch with the Complainant as also amongst themselves, during the relevant period, showing their scrupulous demand of bribe from Shri Raj Kumar Gupta.
The Hands and pocket wash of the accused were sent to CFSL, Lodhi Road, New Delhi, who after due scientific examination, have provided a positive opinion thereupon, interalia confirming presence of phenolphthalein in each of the washes.
The conversation amongst both the accused and complainant, during pretrap proceedings and on spot, was got recorded, on a digital voice recorder. During investigation, voices of the accused were identified by witnesses. The Sample Voices of both the accused and the complainant were also recorded and forwarded alongwith the above mentioned questioned voice recording to CFSL, CGO Complex, Lodhi Raod, New Delhi for opinion.
Charge 2.0 Being a prima facie case, Charge u/S. 120B, 7/13 (2) r/w Section 13(1)(d) PC Act r/w Section 120B IPC was framed against the accused persons to which they pleaded not guilty and claimed trial. CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 11 of 51 Prosecution witnesses 3.0 Prosecution examined 18 witnesses in support of its case. 3.1 PW1 Sh. Shyam Singh Khichee and PW2 Shankar Lal are the independent witnesses. PW1 was also appointed as a shadow witness. Both are material witnesses for the prosecution.
3.2 PW3 Sh. VB Ramteke is an expert witness. He proved the chemical examination report as Ex. PW13/C and stated on oath that the examination gave positive test for the presence of phenolphthalein and sodium carbonate.
3.3 PW4 Capt. Rakesh Bakshi, Nodal Officer, produced the call details of mobile no. 9818835668 and 9810396197 from the period 15.02.2006 to 5.03.2006 as Ex. PW4/B and 4/C. He stated that phone no. 9818835668 is in the name of Sh. Gyan Prakash and phone no. 9810396197 is in the name of R.K. Gupta.
3.4 PW5 Rakesh Dabas produced the call detail of mobile no. 9312011594 (used by A2 Yogender Kumar) in the name of Mrs. Madhuri from the period 15.02.2006 to 27.02.2006 as Ex. PW5/A. 3.5 PW6 RS Yadav produced the call detail of mobile no. CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 12 of 51 9868501257 (used by A1 Dalip Pawar) in the name of Dalip Pawar for the period 15.02.2006 to 27.02.2006 as Ex. PW6/A. 3.6 PW7 Sh. AD Tiwari Sr. Scientific Officer had recorded the specimen voice of two witnesses Rameshwar Dayal and Om Prakash and of accused persons in Tihar Jail and proved the memo in this regard as Ex. PW7/A and 7/B. 3.7 PW8 Sh. Vipin Kumar was the trap laying officer. He stated that FIR Ex. PW8/A was marked to him and after discussion with his SP and Dy.SP DS Dagar, the verification was conducted and it was decided to lay a trap. The team consisting of independent witnesses PW1 and PW2 was formed. The complaint was readover to all the members of the raiding party and all the members of the raiding party were also asked to satisfy themselves about the genuineness of the complaint. In the pretrap proceedings, the demonstration regarding phenolphthalein powder was given by Inspr. Arun Sharma. Complainant produced Rs. 20,000/ in the denomination of Rs. 500/ The numbers of the currency notes were duly recorded in the pre trap memo Ex. PW1/A. The currency notes were put by PW14 RK Gupta in the right side pant pocket and was directed to give the money on the specific demand of bribe. The other materials kept in the pocket of the complainant were removed. The digital recorder was arranged CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 13 of 51 and handedover to the complainant for recording conversation between the complainant and the accused persons. The introductory voice of the independent witnesses were recorded vide recovery observation memo Ex. PW1/B. On demand of the complainant, he was given Rs. 1500/ for filling fuel in his vehicle and to meet the contingency expenses. Since the accused persons had asked the complainant to come alone, the witnesses and the team members were asked to keep them near to the complainant and the accused persons.
The complainant and the members of the trap team in separate vehicles left for the venue at Shahjahan Road and reached at the scheduled place at Shahjahan road at 2 p.m. Two persons came on the motor cycle. One of them sat in the car of the complainant and other persons followed the car on the motor cycle. The CBI team also followed them. All of them almost simultaneously reached at Nehru Park. The person sitting inside the car was later on identified as accused Dalip Pawar (A1) and the person sitting on motor cycle was identified as Yogender Kumar (A2). They all sat in the park. CBI team members took their position nearby so that they could see the transaction and overhear the conversation between the accused and the complainant. Around 4 p.m., A1 and A2 stood up and started walking. On reaching one point, PW4 RK Gupta took out the tainted notes from his right side pant pocket and gave the same to accused Dalip Pawar who accepted the same from his right hand and counted with both the hands and then he handed over the same to accused Yogender . The complainant gave CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 14 of 51 the preassigned signal on which the CBI team rushed to the spot and caught hold of accused Dalip Pawar and Yogender Kumar and they were challenged to have accepted the bribe amount from the accused persons. The accused persons became nervous and started begging for mercy. The complainant was asked to return back the digital recorder. The handwash of the accused persons were taken and the entire proceedings were recorded in Ex. PW1/C. The accused persons were arrested. Since the large crowd was gathered there, accused persons were taken in the CBI office. The pant wash of A2 Yogender Kumar was taken. The site plan Ex. PW1/D was prepared. The digital recorder was played and the contents of the complaint were down loaded on to the computer and a new compact CD was prepared. The proceedings were recorded and recorder observation memo II Ex. PW1/E was prepared. The tainted notes were duly recovered and sealed. 3.8 PW9 Sh. Rameshwar Dayal was a formal witness whose introductory voice were recorded alongwith the sample voice of accused persons in Tihar Jail. The witness identified the cassettes as Ex. PW9/1 and Ex. PW9/3.
3.9 PW10 Sh. Rajmal Peon was also a formal witness in whose presence specimen voice of the complainant RK Gupta was recorded. He identified the sample voice collection observation memo as Ex. PW10/A and CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 15 of 51 also identified the cassette as Ex. PW10/1.
3.10 PW11 Manoj Kumar is the witness of the same facts as of PW10.
3.11 PW12 Sh. Tanmay Behera, the then Additional SP had taken over the charge of the case from Inspr. PW8 Vipin Kumar. He recorded the statement of witnesses, collected evidence on record, got recorded the specimen voice of the complainant and also the transcription of conversation recorded between accused persons and the complainant as Ex. PW1/F. PW12 further stated that he received the letter Ex. PW12/C vide which it was intimated that accused persons have been dismissed. PW12 Sh. T. Behera proved the receipt memo Ex. PW12/E vide which certified copy of daily diary of PS Narcotics branch from 24.02.06 to 27.02.2006 was collected. Copy of daily diary Ex. PW12/F (collectively) was taken over. He also proved documents Ex. PW12/G vide which the documents pertaining to mobile no. 9868501257 in the name of Dalip Pawar were received. The documents are Ex. PW12/G1 to G6.
3.12 PW13 DS Dagar was deputed to verify the complaint in a secret manner. The complainant told PW13 that accused Yogender had asked him to meet at Pandara Road at about 4.15 p.m. Pursuant to which CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 16 of 51 PW13 reached Pandara Market where he saw that complainant met an individual who was later on identified as A2 Yogender. A2 Yogender and complainant talked for sometime in the car. PW13 followed the car in a discreet manner. At Nehru Park A1 Dalip Pawar (identified later on) sat in the car and A1 Yogender followed them on motor cycle. They reached Ashoka Hotel and proceeded towards lobby. After sometime, the complainant and the accused persons came outside and then they went inside TGI Friday Restaurant at inner circle, Connaught Place at 5 p.m. and remained there till 8.15 p.m. PW13 observed them secretly and found that all of them were having drinks and food. PW13 specifically stated on oath that he heard that the accused persons were telling the complainant to arrange money.
3.13 PW14 RK Gupta is the star witness. He made a specific statement regarding the demand of bribe, and payment of bribe and acceptance of the bribe by the accused persons.
3.14 PW15 Sudhir Singh was a witness regarding case FIR No. 75/05 u/S. 21,22 and 25 of NDPS Act against the complainant. PW15 stated that Dalip Pawar was initial IO from whom the investigation was transferred and filed the chargesheet after completion of the investigation. PW15 stated that he had visited Shahjahanpur in connection with investigation of the case CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 17 of 51 on 25.02.2006 and returned Delhi in the intervening night of 26/27/02.2006 at about 1112 O'clock (night) and thereafter did not meet the accused persons.
3.15 PW16 Sh. Om Prakash was also a formal witness in whose presence the sample voice of accused persons was taken in Tihar Jail. 3.16 PW17 Inspr. Ramesh Kumar was posted as SHO Narcotics Branch at the relevant time. He verified that accused Dalip Pawar had mobile no. 9868501257 and accused Yogender Kumar had mobile no. 9312011594. Inspr. Ramesh Kumar also proved that ASI Dalip Pawar was the initial IO in the case FIR No. 75/05. A2 Yogender Kumar was the witness of recovery and the raid was conducted successfully and contrabanned articles were found in the possession of the complainant. Inspr. Ramesh Kumar stated that he had gone to Shahjahanpur, UP alongwith some other police officials for some official work and they returned back on late night of 26.02.2006 and reported for duty on 27.02.2006. However on the request of the accused persons, one day duty rest was granted to the accused persons. The departure and arrival entry in this regard were proved as Ex. PW17/A and PW17/B. 3.17 PW18 Dr. Rajender Singh, Director CFSL proved his report CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 18 of 51 Ex. PW18/A in regard to the question voice of the accused persons. Statement of accused persons 4.0 A1 Accused Dalip Pawar in his statement u/s 313 Cr.P.C, stated that on 25.02.2006, A2 Yogender Kumar asked him to meet at Nehru Park at 05.30 p.m. Yogender Kumar also stated that complainant RK Gupta would also be accompanying him. A1 Dalip Pawar admitted that he met A2 Yogender Kumar and RK Gupta at 5.30 p.m., on 25.02.2006 at Nehru Park. The purpose of the meeting was that complainant would give some tip about a drug supplier to the accused persons. At Nehru Park, the complainant stated that the drug supplier would be coming to Ashoka Hotel and therefore, all of them went to Ashoka Hotel. In Ashoka Hotel, the complainant stated that he had received an information that drug supplier would be reaching to Connaught Place and, therefore they went to TGI Friday Restaurant and reached there at about 05.45 p.m. and remained for about 1 hour. Accused Dalip Pawar stated that being in Narcotics Branch, he used to interact with the criminals and only the criminals used to supply information about the other criminals and on the basis of such information, the raids were used to be conducted with the permission of senior officers. A1 stated that he had never demanded any bribe from the accused. A1 admitted that on 27.02.2006, he had met A2 (Yogender Kumar) and complainant in Nehru Park as A2 Yogender had called him at 02.30 p.m., to tell that he (i.e. CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 19 of 51 Yogender Kumar) has received a call from the complainant RK Gupta that he (i.e. complainant) would meet them at Nehru Park at 3 or 3.30 p.m. where the drug supplier would be reaching. Accused stated that in Nehru Park while he, himself and A2 were talking to the complainant, the complainant started talking about his case and said that his interim bail is going to expire. The accused persons expressed their anger on wasting their time and in the meanwhile number of persons intercepted them. Some flash lights were experienced, and they were taken in the vehicle. The initial impression of the accused persons were that some henchmen of complainant have attacked them. The accused stated that he is innocent and he has been implicated falsely. The accused stated that dismissal order passed against him has been set aside by the court.
4.1 A2 - Accused Yogender Kumar in his statement u/s 313 Cr.P.C stated that on 25.02.2006, he had gone to Pandara Market after having called by the complainant on the pretext that he would get them a case. At Pandara Market, A2 called his superior A1 Dalip Pawar and gave the information that complainant would get a drug supplier arrested from Nehru Park. On this information, A1 Dalip Pawar also agreed to come to Nehru Park. A2 Yogender Kumar also accepted to have met A1 at Nehru Park and the fact that they went to Ashoka Hotel and then to Cannuaght Place. A2 also accepted that he himself alongwith the complainant and A1 remained in TGI till 08.15 p.m. In respect of 27.02.2006, A2 admitted that they met the CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 20 of 51 complainant in Nehru Park and sat there for some time. Accused denied to have received any bribe from the complainant. The accused stated that they were forcibly thrown into the vehicle and were beaten black and blue and made to sign on certain papers. Accused stated that the complainant got them implicated falsely to take the revenge.
Defence Evidence 5.0 The accused persons in their defence examined ACP Bir Singh who proved the photocopy of FIR No. 75 dt. 19.10.05 u/S. 21,22,25 NDPS Act as Ex. DW1/A. Submissions 6.0 Sh. DK Singh, Ld. PP for CBI in his brief but effective arguments submitted that the case of the prosecution as unfolded by way of reliable prosecution witnesses reveals that there is ample of positive evidence regarding demand and acceptance of bribe by both the accused persons. Sh. D.K. Singh, Ld. PP for CBI has placed reliance on testimony of PW1 S.S. Khichee , PW2 Shankarlal, PW8 Insp. Vipin Kumar and PW14 complainant Raj Kumar Gupta. Ld. PP submitted that the complainant was straight forward and positively disclosed in his complaint Ex. PW8/B that he is an accused in NDPS case. Ld. PP submitted that there is no rule of law or prudence which debars the court from passing the conviction on the CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 21 of 51 testimony of persons involved in criminal case provided they are found to be reliable. Reliance has been placed on Ram Sarup Charan Singh Vs. State AIR 1967 Delhi 26. Sh. DK Singh, Ld. PP submitted that complainant is undoubtedly a bad man but he came to the CBI with a good cause. CBI prosecutor argued that if peruse the testimony of PW1 and PW2, they have made corroborative statement to each other. The contradictions which have appeared are minor in nature and does not go to the root of the case. Ld. PP submitted that it is not mandatory that there should be demand or acceptance by the words of mouth as the accused persons can make the demand/acceptance by action and gestures. The contradictions and variations appearing in the testimony of prosecution witnesses are minor in nature and does not go to the root of accused persons. Sh. D.K. Singh, Ld. PP invited the attention of the court towards Section 7 of PC Act, 1988 . He would submit that mere reading of Section 7 of the PC Act, 1988 indicate that Legislature in his wisdom has not used the word, "demand" in the provision. Ld. PP submitted that prosecution, in order to succeed, u/s 7 of PC Act, is not necessarily required to prove the demand made by the accused person. He also stated that the dictionary meaning of word, "accept" is with consenting mind. He would submit that consent may be established by evidence of surrounding circumstances indicating prior mind set. In support of contention, Ld. PP for CBI has relied upon in case titled as State of M.P. vs. Shambhu Dayal Nagar (2006) 8 SCC 693. CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 22 of 51 6.1 Sh. Naval Kishore, Ld. Counsel for accused no. 1 Dalip Pawar submitted that the case of the prosecution is liable to fail as CBI has suppressed a material fact that it was a joint raid conducted by CBI and IBN7 Channel, as even admitted by PW14 in the cross examination, that the raid was live telecasted on the media. The CBI had stage managed the entire drama only to gain popularity at the cost of reputation and career of the accused persons. Ld. Counsel further submitted that in the complaint Ex. PW8/D, complainant stated that on 24.02.2006, both the accused persons met him at around 10.00 PM/11.00 PM, whereas, as per document of the prosecution itself Ex. PW12/F, entry No. 31 shows that Ct. Yogender Singh (A2) was on night duty at ACP and DCP office since 9.00 PM on 24/2/2006. In absence of any independent witnesses at the time of alleged demand made by the accused persons on 24.02.2006, this case as set up by the complainant is full of doubts. In order to prove the case, prosecution is required to prove beyond reasonable doubt that there was demand and the acceptance of the bribe. In respect of the demand, the prosecution has examined PW1 Sh. S S Khichee, PW2 Shankar Singh (both independent witnesses) and complainant Raj Kumar Gupta (PW14). PW1 and PW2 have not supported the version of prosecution regarding any alleged demand made by the accused. There is no evidence on record regarding any demand of bribe made by the accused persons. Ld. Counsel brought to the notice of the court that contrary versions have been given by PW1, PW2 and PW14 CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 23 of 51 regarding acceptance of money by the accused persons. Sh. Naval Kishore emphasized that PW1 and PW2 cannot be regarded as an independent witnesses as they have been appearing for the CBI and have deposed under the pressure of CBI. Ld. Counsel submitted that witnesses formed part of raiding party can not be termed as independent witnesses, and placed reliance upon "Som Prakash Vs State of Punjab", AIR 1992, SC665.
Ld. Counsel further argued that since PW1 and PW2 are not reliable and no conviction can be recorded on the uncorroborated testimony of the PW14 i.e. the complainant. In support of his contention, Ld. Counsel cited "Rajinder Parshad Vs The State", 1990, Vol. III, Crimes287.
Sh. Naval Kishore, Adv. submitted that as per statement Ex. PW1/D, the place where the bribe was allegedly taken was surrounded by the raiding party, and it is highly unbelievable and improbable that the accused persons would accept the bribe in the public view. The reliance was placed upon "The State Vs Satish Chand Sharma", AIR 1986, (2) Crimes102 and "Khilli Ram Vs State of Rajasthan", 1985, CC cases 10 (SC).
Ld. defence counsel further argued that since complainant himself is involved in numerous criminal cases including NDPS cases and therefore his testimony cannot be relied upon. It is further submitted that accused no. 1 Dalip Pawar was not an investigating officer of the case and he had no role to play in extension of the bail. The defence has emphasised that there cannot be any motive or reward.
CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 24 of 51
In regard to the recovery of the bribe amount, Ld. Counsel submitted that as per the case of prosecution, PW2 Sh. Shankar Singh made recovery of the bribe amount from the accused, who admittedly said that he did not offer his search prior to them. In support of his contention, Ld. Counsel relied upon the judgment titled as "Abdul Rehman Sheikh Vs State of MP", 2002 (3) Criminal Court Cases 46 (M.P.). Ld. Counsel submitted that prosecution witnesses have made self contradictory statements and same suffer from inherent weakness. In support of his contention, Ld. Counsel relied upon "Suraj Mal Vs State", AIR 1979 SC 1408.
Ld. Defence Counsel submitted that mere recovery of bribe money divorced from other surrounding circumstances is not sufficient to prove the case. The theory of tape recorder has also been introduced later on, and PW1/D and E are fabricated documents. There is nothing on record to suggest that who prepared the CD. The tape recording has not been done in accordance with law and therefore the same is not admissible. In support of his contention, Ld. Counsel has relied the celebrated judgment "Tuka Ram S. Dighole Vs Manikrao Shivaji Kokate" (2010) SLT 674 and "Nilesh Dinkar Paradkar Vs State of Maharashtra", VolIII (2011) SLT 35. In regard to the transcription of Ex. PW1/F, Ld. defence counsel has argued that the same is forged document and if we go through the testimony of PW1 and PW2, the possibility of tampering cannot be ruled out.
Sh. Naval Kishore, Ld. Counsel has further argued that CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 25 of 51 prosecution has miserably failed to prove the conspiracy between the accused persons and the only evidence produced by the prosecution is of association, which is not sufficient to prove the case. In support of his contention, Ld. Counsel relied upon "Sh. L K Jain VS The State" 2005 [3] JCC 1677.
Ld. Counsel submitted that prosecution witnesses are unreliable. There are contradictions in the testimony of the prosecution witnesses and in particular in regard of the acceptance of the bribe. The statement of prosecution witnesses are mutually inconsistent. The accused persons have primarily taken the defence that accused persons have neither demanded nor accepted any bribe and they have been falsely implicated. The complainant was arrested in the NDPS cases in which accused no. 1 was the complainant and accused no. 2 was recovery witness. The purpose of the accused was to discredit the star witnesses of the case against him. In support of his contention, Ld. Counsel relied upon "Ganga Kumar Srivastava Vs The State of Bihar" 2005 (3) Criminal Court Cases 371 (SC). 6.2 Sh. Mahinder Singh, Ld. counsel for the accused no. 2 Yogender Kumar in addition to the above said arguments emphasized that the case against accused persons is false and frivolous. Accused persons were not in a position to extend any help. The complainant allured accused no. 1 and 2 only to take revenge. The motive of the complainant was to get his bail extended, in which he succeeded also. The prosecution has not CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 26 of 51 produced the digital recorder. The recording made by them was selective and CD was fabricated.
Sh. Mahinder Singh, Ld. Counsel further argued that there was contradiction regarding the denomination of currency note as well as the fact that where the pocket wash of accused no. 2 was taken.
Ld. Counsel pointed out that PW1 S S Khichee was evasive in his cross examination. Ld. Counsel has pointed out that SS Khichee has also appeared as CBI witness in RC01/07.
Conclusions 7.0 Section 7 of the POC Act, 1988 provides as under :
"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 disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government of 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 six months but which may extend to five years and shall also be liable to fine."
7.1 In Dalpat Singh Vs. State of Rajasthan, AIR 1969 SC 17 it was CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 27 of 51 held that the following requirement have to be satisfied to attract Sec. 7 of the Prevention of Corruption Act:
(1) the accused at the time of the offence was, or expected to be a public servant;
(2) that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification;
(3) that such gratification was not a legal remuneration due to him;
and, (4) that he accepted the gratification in question as a motive or reward, for:
(a) doing or forbearing to do an official act, or
(b) showing, or forbearing to show favour or disfavour to some one in the exercise of his official functions; or
(c) rendering or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the Legislature of any State or with any public servant.
The prosecution is required to prove the above ingredients by way of acceptable and clinching evidence.
7.2 In State of Maharasthra Vs. Dnyaneshwar Laxman Rao Wankhede VI (2009) SLT 439, the apex court while discussing the ingredients of offence u/s 7 of PC Act inter alia held as under :
"Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 28 of 51 satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused visavis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
7.3 The perusal of the explanation (d) of Section 7 POC Act would indicate that a public servant who receives the gratification as a motive or reward for doing, what he is not in a position to do would also be held liable for this offence. If a public servant has used his official position to extract illegal gratification the requirement of the law is satisfied and it would be irrelevant whether the public servant was competent or empowered to do the same or not. Broadly, for the offence u/S 7 of the PC Act, the initiative vests in the person who gives and in case of obtainment i.e. u/S 13(1)(d), the initiative vests in the person who receives. The offence u/S 13(1)(d) may exist without another person being directly involved. Therefore, the acceptance is excluded without another person being directly involved. In the offence u/S 13(1)(d) it is not necessarily implied that another person suffers any monetary loss. The offence may complete without any profit or benefit for another person. However, for the offence u/S 7, there has to be other CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 29 of 51 person also who had given money to the public servant.
In the case of State Vs. A. Parthibhan (2006) 11 Supreme Court Cases 473 it is held as under :
" Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under section 13 (1)(d) of the Act. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13 (1)(d) of the Act. The offence being a single transaction, but falling under two different sections, the offender cannot be liable for double penalty. But in High Court committed an error in holding that a single act of receiving an illegal gratification, where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13 (1)(d) of the Act."
7.4 Section 20 of the PC Act 1988 provides for raising of a presumption in the event it is proved that the accused person has accepted or obtained or to obtain for himself any gratification or valuable thing. The presumption u/s 20 can be invoked if the prosecution has successfully proved by way of clinching evidence that accused has accepted or agreed to accept any gratification or valuable thing. Once this fact is proved, the presumption as provided u/s 20 PC Act, 1988 can be raised that public servant has accepted or agreed to accept the same as a motive for doing or forbearing for doing an official act. However, it is a rebuttable presumption and the burden of proof shifts upon the accused to prove that it was not as a motive or reward that the gratification or valuable thing was obtained. However, the CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 30 of 51 onus on the accused to rebut this presumption is not as onerous as on the prosecution.
In the present case the accused persons have been charged for the offence u/S. 120B, 7/13 (2) r/w Section 13(1)(d) PC Act r/w Section 120B IPC also. It is a settled preposition that in order to prove the offence u/S. 7 of the PC Act, the acceptance of illegal gratification, whether preceded by demand or not, is sufficient. However the acceptance of illegal gratification by the public servant in pursuance of a demand, would fall u/s 13 (1)(d) of the Act also. In Harish Kumar Vs. CBI ILR (2011) IV Delhi 642, the implication of statutory presumption u/s 20 of the POC Act was considered in detail and it was inter alia held as under :
" 14. In the present case, since acceptance and demand has been proved in terms of Section 7 of the POC Act, this Court is duty bound to raise presumption for offence under Section 20 of the POC Act. In M.Narsinga Rao Vs. State of Andhra Pradesh, 2001 (1) SCC 691 it was held that where receipt of illegal gratification was proved, the Court was under a legal obligation to presume that such gratification was accepted as reward for doing a public duty. In the report, it was held :
" 13. Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as "factual presumption" or discretionary presumptions"
and those falling under the latter as " legal presumptions"
or "compulsory presumption". When the expression "shall be presumed" is employed in Section 20(1) of the Act it must have the same import of compulsion.
14. When the subsection deals with legal presumption it is CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 31 of 51 to be understood as in terrarium i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act et., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
Having gone through the defence taken by the accused persons, it is clear that the accused persons have not disputed their meeting with the complainant on 25.02.2006 and 27.02.2006. The accused persons have also admitted to have visited with the complainant to Ashoka Hotel and thereafter to TGI Friday Restaurant at Connaught Place on 25.02.2006. Thus, the presence of the accused persons on the spot, from where they were arrested, is not disputed. The accused persons have vehemently disputed the demand of bribe or acceptance of the same. In regard to the demand or acceptance of the bribe, the most important testimony would be of PW14 RK Gupta. In his testimony, RK Gupta deposed on oath regarding his arrest in the NDPS Act and stated that he was released on interim bail on 16.01.2006 till 28.02.2006.
The complainant stated that A2 Yogender contacted him during this period and represented that A1 Dalip Pawar was the IO of the case. The complainant had two mobile nos. 9818835688 and 9810398697 and both CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 32 of 51 were used by him. A2 told the complainant to meet A1 Dalip Pawar on 24.02.2006, subsequent to which the complainant met A1 and A2 in a complex in Wazirpur Depot at about 1011 pm on 24.02.2006. A2 told the complainant that he (i.e. complainant) was implicated falsely by Cheema and Sudhir Singh and assured to help the complainant, if the complainant pay him Rs. 1 lakh. A1 also ensured the complainant to get his interim bail extended. He told the complainant to meet him on 27.02.2006 and give him Rs. 1 lakh. On being asked, A1 told that he would tell the complainant later on, that how he can help the complainant. The complainant took a decision to contact CBI and file the complaint Ex. PW8/B. The complainant met A2 Yogender Kumar at Pandara Road from where A2 talked to A1. A1 told the complainant and A2 Yogender to reach near Nehru Place. The complainant alongwith A2 went to Nehru Place in Maruti Zen No. DL 9CD 4441, where A1 was already present on his motor cycle. A1 sat in the car with the complainant and A2 followed them to Ashoka Hotel. From Ashoka Hotel they went to TGI Friday on the insistence of A1 Dalip Pawar. In TGI Friday, they remained for 23 hours and the expenses were borne by the complainant. A1 Dalip Pawar represented to the accused that he can get the interim bail extended and asked the complainant to arrange Rs. 1 lakh before the next date of hearing. The complainant assured to arrange for the maximum amount at the earliest. On 27.02.2006 the complainant went to CBI office at 10 a.m. and disclosed the entire conversation held at Pandara Road and TGI Friday Restaurant. The complainant told that the meeting has CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 33 of 51 been fixed with the accused persons on 27.02.2006 at 2 p.m. In the CBI office itself, the complainant got a call from Accused no.2 Yogender who told him to meet at Bus Stand at Shahjahan Road. The complainant gave Rs.
20,000/ to the CBI officer, which were of Rs. 500/ denomination and same were duly treated with phenolphthalein powder. Digital recorder and a mobile phone in "on" position, was given to the complainant. The complainant was asked to give the signal after the transaction of bribe. The CBI team alongwith the complainant left CBI Office at 1.30 p.m. The Pre Trap Memo Ex. PW1/A and Recorder Observation Memo Ex. PW1/B wee duly proved. The complainant met A2 Yogender and also saw A1 Dalip Pawar standing on the opposite side of the road. The complainant took a U turn and sat in the car and asked A2 to reach Nehru Park. All three of them went inside the Nehru Park. In the park complainant asked A1 that how he would help him, if he gives money to them. A1 Dalip Pawar told the complainant that entire case depend upon him. A1 also stated that he would procure insanity certificate. The complainant requested to scale down the bribe amount. However, A1 stated that he would have to procure insanity certificate and he has to spent a lot in getting the certificate. A1 initially refused to accept Rs. 20,000/, however, on the request of the complainant he agreed to accept Rs. 20,000/ subject to the condition that balance should be arranged shortly. After long negotiations, A2 Dalip Pawar asked the complainant to pay him Rs. 20,000/. The complainant took out the money and offered to Dalip Pawar. A1 Dalip Pawar told the complainant to pay to CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 34 of 51 A2 Yogender. However A2 Yogender told A1 Dalip Pawar that he should accept the money. On the asking of A1 Dalip Pawar, A2 Yogender took the money from the complainant. The predecided signal was flashed. The raiding party surrounded the accused persons and were duly arrested.
Complainant further stated that he does not know from whom the money was actually recovered as he turned back after he paid the money to Yogender.
The complainant deposed in detail regarding the proceedings after the recovery having taken place. The complainant also deposed in detail on oath regarding the pretrap proceedings. The complainant made specific statement regarding hand wash taken of the accused persons. He specifically stated that after the hand wash of A1 and A2, the colour of the solution turned pink. The complainant was subjected to the detailed cross examination regarding his previous antecedents, however, I consider that the lengthy and the detailed crossexamination has not been able to shatter the testimony of the complainant. The complainant was also crossexamined in detail regarding the transcription. If we peruse the crossexamination of the complainant largely, it is on regarding his criminal background, transcription and the presence of media on the spot.
7.5 Ld. Defence Counsels have placed heavy reliance on the contradictions appearing in the testimony of the complainant. It is a settled preposition that minor contradictions does not go to the root of the case and cannot be taken into account while appreciating the evidence. Normally, the CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 35 of 51 discrepancies take place due to the normal errors of observation, normal errors of memory due to lapse of time and mental disposition at the time of crossexamination. It is also a settled preposition that the maxim 'falsus in uno falsus in omnibus' is neither a sound rule of law nor a rule of prudence.
Reference can be made to Bawa Haji Vs. State of Kerala AIR 1974 SC 902 and Ugar Ahir Vs. State of Bihar AIR 1965 SC 277. It is also been held in the number of the cases that minor discrepancies which does not go to the root of the case, should be ignored. Reference can be made to Krishna Pillai Vs. State of Kerala AIR 1981 SC 1237. In respect of appreciation of evidence, in Mehkar Singh Vs. CBI ILR (2011) IV Delhi, it was inter alia held as under :
"It must be kept in mind that while appreciating the evidence of a witness one may come across certain discrepancies in his deposition. These discrepancies are really of no consequence as long as they don't go into the root of an demolish the veracity of the case. These discrepancies can be due to normal errors of observation, or loss of memory due to lapse of time or due to mental disposition such as shock and horror at the time of the occurrence and the like. It must be remembered hat the evidence given by a witness would very much depend upon his power of observation and it is possible that some aspects of an incident may be observed by one witness while they may not be witnessed by another though both are present at the scene of occurrence [vide Boya Ganganna and anr. v. The State of Andhra Pradesh AIR 1976 SC 1541]. In the case of Bharwarda Bhoginbhai Hirjibhai (supra), it was held by the Supreme Court that much importance cannot be given to minor discrepancies which did not got to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. It has been held time and again by catena of judgments of Apex Court that discrepancies do not necessarily demolish the testimony. The proof of guilt can be sustained despite CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 36 of 51 some infirmities [Narottam Singh Vs. State, 1978 Crl.L.J. 1612 (SC)]. In the case of Ramni Vs. State, 1999 (6) SC 247, it was held that all the discrepancies are not capable of affecting the credibility of the witnesses and similarly all the inconsistent statements are not sufficient to impair the credit of a witness."
The experience would tell that no prosecution case is immune from inconsistencies here and discrepancies there. The main thing to be seen is whether those inconsistencies etc. go to the root of the matter or pertain to the insignificant aspect thereof. Coming to the evidence of PW14 RK Gupta, I consider that his testimony cannot be rejected merely on the ground that he had criminal antecedents. It is a matter of common knowledge that normally an individual would be reluctant to report the matter to the CBI. Even if there was a demand or acceptance of the bribe amount, the person approached the police/CBI only when one is put to the corner and there is a situation of extortion. In State of U.P. Vs. Dr. G.K. Ghosh AIR 1984 SC 1453 the apex observed that by and large a citizen is somewhat reluctant, rather than anxious, to complain to the Vigilance Department to have a trap arranged even if illegal gratification is demanded by a Government official. It was inter alia held as under :
"By and large a citizen is somewhat reluctant, rather than anxious, to complain to the Vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant. There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait for a number of officers. He has to provide his own currency notes for arranging a trap. He CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 37 of 51 has to comply with several formalities and sign several statements. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort whilst doing so. Thereafter, he has to attend the Court at the time of the trial from day to day. He has to withstand the searching crossexamination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government officer, has to face all these hazards. And if the explanation offered by the accused is accepted by the Court, he has to face the humiliation of being considered as a person who tried to falsely implicate a Government Servant, not to speak of facing the wrath of the Government servants of the department concerned, in his future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gainsaid that it does not mean that the Court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing favours, or for according a special treatment by giving a gobye to the rules, the official refuses to yield."
7.6 It is correct that in view of background of the complainant, his testimony is required to be appreciated with a caution, but complainant cannot be branded as wholly unreliable. As discussed above, the accused persons have not disputed their meeting with the complainant on 25.02.2006 CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 38 of 51 and 27.02.2006. Firstly, the plea taken by the accused persons that they had been meeting the complainant on the request of the complainant himself seems to be totally unbelievable. It does not appeal to the reason that A1, an experienced police official would be mixing with the accused of his own NDPS case so freely. This conduct of the accused persons itself indicate towards their malafide. The accused persons have also accepted their visit to Ashoka Hotel and TGI Friday Restaurant alongwith the complainant. The complainant has specifically stated on oath regarding demand made by the accused persons on 24.02.2006, 25.02.2006 and demand/acceptance of bribe by them on 27.02.2006. The tape recorded conversation as tried to be assailed by the defence, is only a corroborative piece of evidence. I consider that if the testimony of the complainant can be accepted with the support of PW1 and PW2 and the scientific evidence regarding the chemical analysis report of phenolphthalein powder, it would be sufficient to convict the accused persons. The testimony of PW14 has duly been supported by PW1 Sh. Shyam Singh Khichee and PW2 Sh, Shankar Lal. In regard to the pre trap proceedings, PW1 and PW2 have made the consistent and corroborative statement. Since the presence of the accused persons on the spot is not disputed, the only material point is regarding the demand and transaction of the bribe. PW1 in his testimony specifically stated on oath that at Nehru Park, he saw complainant and both the accused persons and RK Gupta handing over money to the accused Dalip Pawar, who counted the same and thereafter gave it to accused Yogender Singh who kept the same in the CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 39 of 51 pocket. A1 also proved the hand wash of accused persons in solution of sodium carbonate as well as recovery of tainted currency notes from the right side pocket of pant of accused Yogender. In the crossexamination, the complainant stated that the distance between the place, where they had taken position in Nehru Park with the complainant, could be recovered in 3 minutes. He denied the suggestion of having not seen any transaction between the accused persons and the complainant. Besides this suggestion, there was nothing which could discredit the version of the accused persons regarding the acceptance of bribe and recovery of the same from accused no.
2. The defence has challenged the testimony of this witness on the ground that he had appeared as a witness in another CBI case RC No. 01/07. I consider that merely because a witness had appeared in a another CBI case, would not make him wholly unreliable. PW2 Sh. Shankar Lal has also made a corroborative and consistent statement regarding the pretrap proceedings. In regard to the occurrence at the Nehru Park, the witness made specific statement on oath that the accused persons alongwith the complainant sat in a park and started conversation and thereafter they started walking. PW2 saw A1 Dalip Pawar giving signal to the complainant to pay him the bribe on which complainant took out the money and handedover the same to A1 Dalip Pawar. A1 counted the said GC notes and after counting the same, A2 Yogender also counted the notes and kept in the right side pocket of the pant. PW2 also deposed on oath that from the right side pocket of A2 Yogender, money was recovered which was found to be Rs. 20,000/ PW2 also made CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 40 of 51 specific statement regarding chemical reaction of phenolphthalein powder with sodium carbonate solution and proved the bottles in the court. In the crossexamination, there was nothing which could shatter the testimony of this witness. PW1 and PW2 have made a consistent and corroborative statement on oath regarding the acceptance of bribe by the accused persons and subsequently recovery of the same from A2 Yogender. PW 3 VB Ramteke, Senior Scientific Officer has proved the chemical examination report as Ex. PW3/C and stated about the positive test for the presence of phenolphthalein powder and sodium carbonate. I consider that PW14 has made a cogent and credit worthy statement which has duly been supported by PW1 and PW2. Further it has been supported by the chemical examination report duly proved by PW3. The superior courts have consistently passed the conviction on the basis of testimony of the complainant coupled with chemical examination report. In case of V.K. Kannan Vs. State AIR 2010 Supreme Court 166, it was inter alia held as under :
"According to Balachander PW2, the money was handed over to the appellant in his presence. Immediately after the bribe amount was handed over to the appellant, he started counting the currency notes. At that time Balachander PW2 came out and gave the prearranged signal. Soon thereafter the Inspector and the trap team entered into the above room and the appellant was arrested. The Sodium Carbonate solution was prepared and phenolphthalein test was conducted on both the hands of the appellant separately. There was colour change in the solution and they were preserved in separate bottles.
Balachander PW2 is an independent witness and he has CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 41 of 51 corroborated the evidence of the complainant PW1. Therefore, in the facts and circumstances of this case, it is difficult to accept the submission of the appellant that there was no demand and acceptance of the bribe amount. Both the Trial Court and the High Court rejected the defence version of the appellant."
The inconsistencies and contradictions put forth by the Ld. Defence counsel during the course of arguments, are minor in nature and does not go to the root of the case. The complainant has duly proved on record the complaint Ex. PW8/C in which there is a specific demand of bribe by the accused persons on 24.02.2006 followed by demand made on 25.02.2006. The defence taken by the accused Yogender that he was on night duty after 9 p.m.; and therefore, there was no occasion for him to meet the complainant at 1011 p.m. on 24.02.2006, cannot over turn the otherwise cogent and credit worthy case of the prosecution. The duty of the court is to examine the case of the prosecution in totality. There can be number of instances where a person is shown to have been on duty on a particular place but actually not been present there. The defence has not led any evidence to prove on record that accused Yogender was on a particular place other than claimed by the prosecution. The demand of bribe on 25.02.2006 has also been proved by the complainant by way of his clinching evidence. It is pertinent to mention here that the accused persons have not disputed their meeting with the complainant on 25.02.2006. The entire happening on 27.02.2006 has also been proved by the complainant PW14 and the independent witnesses PW1 and PW2.
CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 42 of 51 7.7 PW8 SI Vipin Kumar in his testimony stated that upon the accused persons being challenged for accepting the bribe, they became nervous and started begging for mercy. It is pertinent to mention that conduct of accused persons i.e., remaining mum, getting perplexed, throwing the money or pleading for mercy are significant factor pointing towards the guilt of the accused. Reliance can be placed upon Rao Shiv Bahadur Vs. State of Vindhya Pradesh, AIR 1954 SC 322 and State of Madras Vs. A. Vidyanatha Iyer, AIR 1958 SC 61.
7.8 Ld. Defence Counsels have argued that CBI did not join any independent witness despite the fact that many public persons were present in the Nehru Park at the time of raid. I consider that this argument needs to be rejected for the reason that CBI had already two independent witnesses i.e., PW1 SS Khichee and PW2 Shankar Lal. Non association of the persons present on the spot would not be sufficient to discard the case of the prosecution.
8.0 I have gone through the judgment in case titled as "Som Prakash Vs State of Punjab" (Supra). This judgment is respectfully distinguished on the facts and circumstances of the case. In Som Prakash's case, there were doubt about veracity of witnesses and suspicion about their CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 43 of 51 credibility. Therefore, per se it cannot be said that witnesses forming part of raiding party are not independent witnesses.
The testimony of complainant has been assailed on the ground that he implicated the accused persons falsely on the ground that he was nursing grudge against the accused. I consider that this argument deserves rejection.
8.1 In Mehkar Singh Vs. CBI, ILR (2011) IV Delhi 656, the accused was a police official and IO of one of the case lodged against the accused, which was at the stage of trial. The plea of the defence that complainant was an interested witness because of his carrying grudge and was not reliable was rejected. In Mehkar Singh's case (supra) Hon'ble High Court of Delhi inter alia held as under:
"8. The learned counsel submitted that the complainant is an interested person because of his carrying grudge and was not reliable unless his testimony finds corroboration. In this regard, reliance was placed on the cases Pyare Lal Vs. State, 149 (2008) DLT 425; Jaswant Singh Vs. State of Punjab, AIR 1973 SC 707 and Sunil Kumar Sharma Vs. State, 139 (2007) DLT 407. In the case of Pyare Lal (supra), appellant was the investigating officer in the case registered against the complainant. The Court found that complainant wanted the appellant to hush up the case against him and his family members and on his refusal to oblige him, slapped false corruption case against the accused. This was the case based on its own facts and circumstances which led the court to record such a finding. In both the cases Jaswatn Singh (supra) and Sunil Kumar Sharma (supra), it was held that in a bribery cases where complainant is an interested witness, his evidence must be considered with great caution. I am CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 44 of 51 conscious of this fact that the testimony of such a witness would require scrutiny with great caution. While noting so, it is also relevant to note that the mere fact that complainant was facing prosecution and was arrested at one point of time despite bail by the accused, would itself may not be enough to throw away the prosecution case or to discard the testimony of the complainant. It is also not that in every case the court would see independent corroboration of such a witness. It would all depend upon the facts and circumstances of each case and the nature of deposition made by such a complaint."
8.2 The argument of Ld. Defence counsels that uncorroborated testimony of complainant cannot be relied upon in bribery cases also deserves rejection.
In State of UP Vs. Dr. GK Ghosh, AIR 1984 SC 1453, it was inter alia held as under:
"24. .... In the case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the conviction."
Similarly, in Rajender Kumar Sood Vs. State of Punjab, 1983 Cr.LJ 1338, it was inter alia held :
"We are of the opinion that there is no question of the Court insisting upon any such independent corroboration of the complainant in regard to the circumstances of the kind. When CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 45 of 51 a given complainant first visits a public servant for doing or not doing some task for him he does not go to him as a trap witness. He goes there in a natural way for a given task. To require a witness to take a witness with him at that stage would amount to attributing to the complainant a thought and foreknowledge of the fact that the accused would demand bribe."
In State Vs. Zakaullah, 1998 SCC (Crl.) 456, it was held by the Supreme Court that evidence of the bribe giver cannot be rejected merely because he is aggrieved by the conduct of the accused. It was further held that nobody overheard the demand made by the accused for bribe or the amount was found in the left pocket of the accused and not in the right pocket, are flippant grounds which should never have merited consideration. 8.3 I have gone through the judgment in "Rajinder Parshad Vs The State" (supra) case. In this case, the testimony of the complainant was found to be not reliable. The perusal of the judgment, would indicate that the Supreme Court has specifically laid down that depending on the circumstances of the given case, the court may find the testimony of the complainant to be so impressive so as to inspire confidence. It was specifically mentioned that in the instant case i.e. "Rajinder Parshad Vs The State", there were circumstances indicating that the complainant was not truthful witness and counter statement given by the accused/appellant was true and probable, considering the same on the scale of preponderance CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 46 of 51 of probability.
Similar question was also raised in CM Sharma Vs The State of Andhra Pradesh, AIR 2011 SC 608. In this case also, the testimony of the complainant was assailed on the ground that their being strained relations between the complainant and the accused, it is highly improbable that accused would demand the illegal gratification from the accused. In this case, the case of Pannalal Damodar Rathi Vs State of Maharashtra, AIR 1979 SC 1191 was cited. The apex court rejected the arguments of the accused and interalia held that whether the case of prosecution deserves acceptance or not is decided on quality of evidence and no hard and fast rule can be laid in this regard. The accused in "CM Sharma's case (supra) also took a plea that conviction cannot be sustained only on the evidence of the complainant without any corroboration being an accomplice. The accused person relied upon Meena Vs The State of Maharashtra (2000) Vol. 5 SCC
21. However, the Apex Court rejected all the arguments of the appellant and inter alia held that "the word "accomplice" has not been defined in the Evidence Act and therefore presumed to have been used in a ordinary sense. A person concerned in the commission of crime, a partner in crime and associate in guilt is an accomplice. He takes part in crime and is privy to the criminal intent. In our opinion, a witness forced to pay on promise of doing or forbearing to do any official act by a public servant, is not a partner in crime and associate in guilt and therefore, cannot be said to be accomplice. It has long been rule of practice, which has become equivalent to rule of law, that the evidence of the accomplice is admissible but to be acted upon, ordinarily requires corroboration. Contractor who gave bribe, CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 47 of 51 therefore, cannot be said to be an accomplice as the same was extorted."
The apex court relied upon on it's earlier judgment in Dalpat Singh & Ors. Vs The State, AIR 1969 SC 17, in which it was held that those who gave illegal gratification cannot be considered as a accomplice as the same was extorted from them. The reliance was also placed upon on State of Bihar Vs Basawan Singh, AIR 1958 SC 500. Thus, the conclusions seems to be that the corroboration of evidence of the complainant/witnesses is required, only when his evidence is not wholly reliable. If witness is wholy reliable, no corroboration is required as a rule of law or prudence. Requirement of seeking corroboration mandatorily in all such cases may lead to horrible results as generally the transactions of bribe takes place in the secrecy and not in a public place.
In Satish Chand Sharma (supra) case, the evidence of the prosecution witness was not believed. It is pertinent to mention here that in this case even the trial court had acquitted the accused. This judgment is respectfully distinguished on the facts and circumstances of the case. Similarly, in Khilli Ram case (supra), the apex court on the facts and circumstances held that the story of the prosecution that accused/police official accepted the bribe in full uniform in public place is not believable. It is also pertinent to mention here that in Khilli Ram case, the currency notes were not powder treated. There were serious discrepancy/contradictory CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 48 of 51 versions regarding the search and thus, benefit of doubt was extended. I consider that this judgment can also be respectfully distinguished on the facts and circumstances of the case.
I have also gone through the judgment of Sh. L K Jain Vs The State (supra) cited by the Ld. defence counsel. There cannot be any quarrel to the preposition in order to bring home the charge regarding conspiracy, the prosecution is required to prove that there should be an agreement between the accused person for doing an illegal act or for doing by illegal means an act, which may not itself be illegal. However, it is also to be kept in mind that conspiracy is generally hatched between the two or more persons in secrecy and therefore, it is very difficult to get any direct evidence. In order to prove the charges of criminal conspiracy more often it is circumstantial evidence which is pressed in service to establish the guilt of criminal conspiracy. In LK Jain case, the court reached to the conclusion that there was no evidence to prove the conspiracy. However, in the present case, there are clinching evidence to show the meeting of mind between the accused persons. The accused persons were meeting the complainant together. Even they had been visiting the restaurant together and spending considerable time. Their act and conduct are speaking louder than words that they were into some conspiracy. In the case of conspiracy, it may not always be possible to get the direct evidence, however the circumstances on record would show the meeting of mind.
CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 49 of 51 9.0 In view of the discussion made hereinabove, I consider that the prosecution has successfully proved that there was a demand of bribe on behalf of the accused persons and the same was also duly accepted by the accused persons. The fact that they had been approaching the complainant and had also been working in tandem towards an illegal design show that there was meeting of mind between them. The testimony of PW14 read alongwith testimony of independent witnesses Sh. Shyam Singh Khichee (PW1) and Sh. Shankar Lal (PW2) proves on record beyond reasonable doubt that there was demand and acceptance of bribe by the accused persons. This fact has also been supported by the forensic result as proved by the chemical analyst Dr. V.B. Ramteke (PW 3) and Dr. Rajender Singh (PW18). The defence has raised an argument that the accused persons were not in a position to extend any help and there was no reason for them to have accepted the bribe. I consider that there is no force in this argument of Ld. Defence counsel.
10.0 In the present case, prosecution by way of cogent and credit worthy evidence proved the demand and acceptance of bribe. In the circumstances, I consider that prosecution has successfully proved that there was conspiracy between the accused persons. It is a settled preposition that where the recovery of money coupled with the other circumstances lead to the conclusion that the respondent received gratification from some person, CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 50 of 51 the court would certainly draw the statutory presumption u/S. 20 of the POC Act. It is also pertinent to mention here that unless the presumption is disproved, dispelled or rebutted, the court can treat the presumption as tantamounting to proof. It is also advantageous to refer illustration (a) of Section 114 of Evidence Act which provides that the court may presume that, " a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession."
That illustration can profitably be used in the present context as well when prosecution brought reliable material that tainted currency notes were recovered from the possession of accused.
11.0 On consideration of the totality of the circumstances of the case, the CBI has been able to establish on the basis of evidence on record that the accused persons Dalip Pawar and Yogender Kumar in conspiracy with each other, had received bribe from the complainant and, therefore, guilty of the offence u/S. 120B IPC and Sec. 7, 13(1)(d) r/w 13(2) of the PC Act r/w Section 120B IPC in RC No. 4(A)/06 and convicted accordingly.
Announced in Open Court (Dinesh Kumar Sharma)
on 01/08/2012 Spl. Judge (PC Act) : CBI
Saket Courts : New Delhi
CBI Vs. Dalip Pawar & Anr. CC No. 16/11 Page 51 of 51