Delhi District Court
State vs . Ved Prakash Sharma Page 1 Of 29 on 31 October, 2014
1
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE
Versus
Ved Prakash Sharma
S/o Late Sh. Harish Chandra
R/o WZ2333, Raja Park, Shakur Basti,
Delhi34.
Corruption Case No. : 21/2013
FIR No. : 12/2012
Case Identification No.: 02401R0466022013
Police Station : Anti Corruption Branch
Under Section :7/13 of Prevention of
Corruption Act, 1988
CHALLAN INSTITUTED ON : 04.09.2013
JUDGMENT RESERVED ON : 15.10.2014
JUDGMENT PRONOUNCED ON : 21.10.2014
JUDGMENT
1.1 Ved Prakash Sharma working as Inspector in Malaria Department of MCD, Karol Bagh Zone, Delhi has been charge sheeted by PS ACB for offence punishable u/s 7 and 13 of Prevention of Corruption Act ( hereinafter called as POC Act ) 1.2 It is the case of the prosecution that on 13.06.2012 one Dara Singh S/o Dwarka Prasad (complainant) appeared at PS ACB and lodged a report against Ved Prakash Sharma, Malaria Inspector of MCD, regarding demand of Rs. 1000/ as bribe. The aforesaid State Vs. Ved Prakash Sharma Page 1 of 29 2 complaint was marked to Inspector Ranbir Singh for necessary action. Inspector Ranbir Singh ( hereinafter called as RO ) associated shadow witness S.K. Ray and after his satisfaction regarding genuineness of the complaint got the same signed by shadow witness. RO himself also signed the same. Complainant made available two Government Currency (GC) notes of Rs. 500/ each. Serial numbers of GC notes were recorded and they were smeared with phenolphthalein powder. Use of phenolphthalein powder was demonstrated to complainant and the shadow witness. They were both instructed as regards the manner in which the raid was to be conducted and the treated GC notes were to be handed over to the accused, only on his demand. RO then constituted a raiding team and left for MCD office Patel Nagar/Baljit Nagar, where accused was posted. Before reaching the office of accused, complainant made a mobile phone call to the accused to verify his availability in the office. Complainant and the panch witness then entered the room of accused and on his demand treated GC notes were handed over to the accused. Panch witness gave predetermined signal and the police team headed by RO arrived and nabbed the accused. Treated GC notes were recovered from the possession of the accused. His right hand was washed in Sodium Carbonate, solution which turned pink. Serial number of recovered GC notes were compared with serial numbers recorded in preraid report which matched. Notice book was seized from the table of the State Vs. Ved Prakash Sharma Page 2 of 29 3 accused. Recovered articles were seized and sealed. RO prepared rukka and called Inspector Manoj Kumar to take over the investigation . Further investigation was carried out by Inspector Manoj Kumar ( hereinafter called as IO ). IO prepared site plan, arrested the accused, recorded statements of witnesses, collected call detailed record and filed the challan.
2. After conclusion of investigation, challan was filed by IO in the court on 04.09.2013. Cognizance of the offences u/s 7/13 of Prevention of Corruption Act, 1988 was taken. Accused was summoned to face trial. On appearance of the accused, provisions of sec.207 Cr.P.C. were complied with.
3. After hearing the accused on charge, Charge for offences punishable under section 7 and section 13(2) POC Act was ordered to be framed, vide order dated 31.10.2013. Accordingly charge was framed against the accused to which he pleaded not guilty and claimed trial. 4.1 Prosecution, in support of its case, examined 15 witnesses. Complainant Dara Singh was examined as PW8. He proved his complaint addressed to Additional C.P., PSACB against accused Ved Prakash Sharma. He deposed about the demand of bribe from him. He also deposed about the raid and demand of bribe at the time of raid, acceptance and recovery thereof. Panch witness Swapan Kumar Ray (PW13) supported the testimony of Dara Singh (PW8). He also deposed about the demand, acceptance and recovery of bribe from the State Vs. Ved Prakash Sharma Page 3 of 29 4 possession of the accused. Both the witnesses also deposed about the hand wash of accused having turned pink and sealing/seizing of case property. They also identified the case property. 4.2 Sh. Amit Rawat (PW6), Sr. Scientific Officer ( Chemistry), FSL, Delhi proved his report which found presence of phenolphthalein powder in the hand wash which was sent to him for examination. Dr. Niharanjan Dass (PW11), administrative superior to the accused deposed that accused was authorised to issue challan/notice for Mosquitoe breeding. He deposed that Notice Book Ex. P5, only contained notices which were warning to the occupant to prevent mosquitoe breeding. None could be prosecuted on the basis of such notice. He also proved biodata of the accused. Pawan Kumar Sharma ( PW3) was the Additional Commissioner, NDMC. Being competent to remove the accused from service, he had accorded sanction to prosecute the accused. Ravinder Kumar ( PW4), Law Officer proved forwarding letter, vide which order granting sanction was sent to PSACB.
4.3 Ram Hari Singh ( PW9 ), Nodal Officer, MTNL proved the call detailed record of Phone No. 9868865515 which was subscribed in the name of complainant Dara Singh. Vishal Gaurav (PW12), Nodal Officer, Bharti Airtel Limited proved the customer application form and call detail record of Phone No. 98101090277, subscribed in the name of accused Ved Prakash Sharma.
State Vs. Ved Prakash Sharma Page 4 of 29 5 4.4 HC Suraj Pal (PW1) was Duty Officer at PS ACB on 13.6.2012. He proved lodging of FIR Ex. PW1/A on a rukka brought by Ct. Anil Kumar. HC Chander Singh (PW5) was MHC (M), PS Civil Lines. He proved deposit of case property by IO/Inspector Ranbir Singh on 13.06.2012. He further deposed about sending of Ex. RHW1 to FSL, Rohini on 29.6.2012 for analysis through Ct. Krishan Kumar ( PW2). He also deposed about deposit of remnants of RHW1 on 7.8.2013 by Ct. Anil Kumar. Ct. Krishan Kumar (PW2) deposed having carried Ex. RHW1 to FSL on 29.6.2012. Both the witnesses claimed not to have tampered with the case property, so long as it remained in 4.5 H.S. Bhardwaj (PW7) furnished the panch witness duty roaster for the month of June 2012.
4.6 Inspector Ranbir Singh ( PW15) was the RO. He proved having conducted the raid on 13.6.2012 at the MCD office, Baljit Nagar where accused Malaria Inspector Ved Prakash Sharma was nabbed while demanding and accepting bribe from the complainant. He proved recovery of treated GC notes from the possession of accused. He proved the raid report prepared by him, hand wash proceedings, preparation of rukka and sealing/seizing of case property. Inspector Manoj Kumar (PW14) was the IO. He has proved the preparation of site plan, recording of statement of witnesses and seizure of Notice Book. He further deposed that proceeding had become difficult to be carried out at the spot, therefore, the accused was brought to PS ACB State Vs. Ved Prakash Sharma Page 5 of 29 6 where he was interrogated and subsequently arrested.
5. Incriminating evidence was put to the accused. He did not dispute being public servant posted as Malaria Inspector, MCD in Baljit Nagar. He denied having demanded bribe from the complainant in the month of May and June 2012. He admitted user of mobile phone No. 98101090277. He denied knowledge of complaint Ex. PW8/A pre raid report and post raid report. He did not dispute phone call dated 13.6.2012 at about 4.30 PM made to him by the complainant from phone No. 9868865515. He admitted that complainant accompanied by panch witness entered his room on 13.6.2012. He denied that on arrival of the complainant he demanded bribe and that complainant gave him treated GC notes and that he accepted the same in his right hand. He denied arrival of raiding team on signal being given by panch witness. He denied his hand wash having been been taken and transferred in two bottles. He did not dispute seizure of Notice Book Ex. P5 from his table. He further stated that challan book was shown by him to the officials of PS ACB, which they declined to seize. He denied preparation of rukka or lodging of FIR. Grant of sanction to prosecute him was put to the accused. He claimed the exhibits to have been tampered with. He stated the FSL report to be wrong. He denied knowledge of call detail record of Mobile No. 9868865515 and cell ID chart of phone of complainant, but did not dispute call detailed record of his phone number and the cell ID chart. He explained the State Vs. Ved Prakash Sharma Page 6 of 29 7 clarification by Dr. Nihar Ranjan Dass ( Health Officer ) to have been given under coercion. He explained that complainant was actually a builder and on his site water had collected, where mosquitoes were likely to breed. He had, therefore, issued a Notice to him. Despite service of two Notices, he did not remove the collected water and, therefore, he issued challans against him on 2.6.2012 and 9.6.2012. Complainant came to him on 2.6.2012 and offered bribe of Rs. 500/, which he declined. Thereafter, complainant came on 9.6.2012 and offered bribe of Rs. 1000/. He declined both the offers and recorded these facts in the challans dated 2.6.2012 and 9.6.2012. 6.1 Accused examined six witnesses in defence. Krishan Gopal Bhardwaj ( DW1), Malaria Inspector, MCD, Baljit Nagar proved challans issued in the name of Smt. Sripati Pandey W/o Sh. Anurodh Prasad C/o Dara Singh Builder on 2.6.2012 and 9.6.2012. He also proved copy of challan issued in the name of Naresh Sonal and Ravi Mishra both on 9.6.2012. Naresh Sonal ( DW3) and Ravi Shankar Mishra ( DW4) deposed that they had been challaned by the accused on 9.6.2012 for mosquitoe breeding. Ashok Kumar Upadhaya ( DW2), Ahlmad from the court of Miss Dipti Devesh, Municipal Magistrate, Karkardooma Courts, Delhi had brought the court file pertaining to challans issued in the name of Smt. Sripati Pandey. 6.2 Dr. L.R. Verma ( DW5) Deputy Health Officer, MCD deposed that accused had worked as his subordinate and was State Vs. Ved Prakash Sharma Page 7 of 29 8 competent to issue challan under Malaria Bye laws. He deposed that he had not received any written complaint against the accused but general public used to express grievances against him, for excessive challaning. Dinesh Kumar (DW6) was employed as Domestic Breeding Checker in MCD, Karol Bagh Zone and worked under the control of the accused. His work involved visiting each premises in the area and educating the occupants about malaria breeding and control of mosquitoe breeding. In May and June, 2012 he had visited premises bearing No. T510, C68, Mandir Marg, where building was under construction by builder Dara Singh. He reported presence of mosquitoe breeding to the accused. Notice was issued to the builder by the accused. Builder was subsequently challaned on 2.6.2012 and 9.6.2012.
7. Shri B.B. Bhasin, Ld. Additional PP for the State has submitted that the fact of accused being a public servant is not disputed and has also been proved through PW11. Sanction for prosecuting him was granted by competent authority PW3. Complainant himself as PW8 has proved the demand of bribe by the accused and his complaint Ex. PW8/A. Preraid and post raid proceedings are proved in the testimony of Raid Officer (PW15), complainant (PW8) and shadow witness (PW13). It is argued that minor variation in the testimony of complainant and shadow witness, as regards the manner of demand of bribe is not a material State Vs. Ved Prakash Sharma Page 8 of 29 9 contradiction, so as to disbelieve demand of bribe. Testimony of both the witnesses establishes demand and acceptance of bribe by the accused. Minor contradictions do not cast doubt on the conscious acceptance of bribe, more so when the hand wash of accused turned pink. Shri Bhasin has relied upon law laid down in Vijay Narain Vs NCT of Delhi Cr. Appeal No. 660/2008 decided on 29.9.2014 by Hon'ble High Court of Delhi and Shanker Bhai Lalji Bhai Rot Vs State of Gujrat (2004) 13 Supreme Court Cases 487. Similarly, the contradiction in the testimony of PW8 and PW13, as regards the recovery of treated GC notes from the hand/challan book is sought to be explained by relying upon the law laid down in Tirath Singh Rawat Vs CBI Criminal Appeal No. 461/03 decided on 27.11.2013 by Delhi High Court. It is further argued that accused has not given any explanation in his statement u/s 313 Cr. P.C. as to how his hand had turned pink on being washed with Sodium Carbonate solution. He has also not explained as to why and how he made a call to the complainant on 12.6.2012 at about 9.55 AM. He has also not explained as to how GC notes were recovered from the challan book. Relying upon Geetha Versus State of Karnataka reported as 2000 (10) SCC 72, it is submitted that guilt of accused is established on this count also. Referring to the note by accused in the challans Ex. PW8/DB and Ex. PW8/DE, that complainant had offered him bribe, it is argued that defence has failed to prove that aforesaid challans were in any manner State Vs. Ved Prakash Sharma Page 9 of 29 10 associated with the complainant. Moreover, accused having been taken into custody on 13.6.2012, presentation of challans before the court on 24.6.2012 during the custody of accused has not been explained. There is no evidence as to who made the aforesaid observations in the challan and as to when the aforesaid observations were made. It is further argued that defence chose not to examine Smt. Sripati Pandey, the alleged owner of premises being constructed by complainant to establish that complainant, was a contractor engaged by her. It is thus argued that this is a piece of evidence which the accused has himself created to defend himself and cannot be read against the prosecution. It is further argued that there is no justification as to why the complainant would offer a bribe of Rs. 500/ for a challan which invited a penalty of Rs. 500/. Similarly the offer of bribe of Rs. 1000/ for a challan, which invited a penalty of Rs. 1000/ is not reconcilable. Challan Ex. PW8/DB and Ex. PW8/DE mention 'unauthorised construction' at the top of the challan. Accused who was a Malaria Inspector had no authority or reason to report about unauthorised construction. The fact of mentioning these words indicates that accused wanted to create a false evidence against the complainant.
8. Shri Yogesh Verma, Ld, defence counsel has argued that complainant and panch witness contradict each other in material aspects. The manner of demand of bribe and the manner of recovery of State Vs. Ved Prakash Sharma Page 10 of 29 11 treated GC notes has been differently stated by both the material witnesses. It is further argued that RO had not verified the contents of the complaint before conducting the raid. Referring to the defence evidence it is argued that complainant was actually a contractor who was carrying out construction at various sites within the jurisdiction of PS Baljit Nagar. At his construction site presence of mosquitoes had been noticed and he was issued notice Ex. PW5/DC and Ex. PW5/DD. Despite issuance of aforesaid notices on 17.5.2012 and 5.6.2012, complainant had not attended upon the site and he was issued challans, on 2.6.2012 and 9.6.2012, Ex. PW8/DB and Ex. PW8/DE. At the time of issuance of aforesaid challans complainant approached the accused and offered him bribe of Rs. 500/ and Rs. 1000/ respectively, for non issuance of challans. Accused mentioned this fact in both the challans and this annoyed the complainant, who pledged to file a false complaint against the accused. Accordingly, he lodged a false complaint Ex. PW8/A and got the raid conducted. It is argued that accused had no reasons to mention the fact of offer of bribe, in advance, in the challans Ex. PW8/DB and Ex. PW8/DE, when there is no anticipations of raid. The challans were presented in the court on 24.6.2012, when the accused was in custody and could not have made the endorsement, after he had been arrested in this case; as he had no access to the challan book while in custody. Shri Verma has relied upon the law laid down in M.P. Singh Vs Stated decided by Hon'ble High Court of Delhi State Vs. Ved Prakash Sharma Page 11 of 29 12 on 23.01.2014 in criminal appeal No. 81/2008, Brij Mohan Vs CBI decided by Hon'ble High Court of Delhi on 13.01.2014 in criminal appeal No. 108/2007, Raj Pal Vs State decided by Hon'ble High Court of Delhi on 01.07.2014 in criminal appeal No. 432/2014 and Hari Singh Yadav Vs State decided by Hon'ble High Court of Delhi on 18.02.2014 in criminal appeal No. 464/2004.
9.1 I have heard the Ld. counsels and with their assistance perused the evidence on record and the documents proved. Accused is a public servant, amenable to provisions of POC Act, is proved by PW11, who has proved his biodata. Sanction to prosecute the accused was granted by Pawan Kumar Sharma (PW3). It was suggested during the cross examination that PW3 was not competent authority to remove the accused from service, which suggestion was denied by the witness. The defence has not being able to demonstrate that grant of sanction to prosecute the accused occasioned failure of justice. The Hon'ble Supreme court in State of Bihar Vs Raj Mangal Ram (2014 SCC on line SC 277 ) has held that trial cannot be scuttled unless the error, omission or irregularity in grant of sanction occasions failure of justice.
9.2 MHC(M) Chander Singh (PW5) and Ct. Krishan Kumar ( PW2) have proved sanctity of the bottle containing right hand wash of the accused, which was tested at FSL and found to be containing Phenolphthalein powder. FSL report has been proved by Shri State Vs. Ved Prakash Sharma Page 12 of 29 13 Amit Rawat ( PW6).
9.3 Dr. Nihar Ranjan Dass ( PW11) has deposed that accused was competent to issue Notices and Challans for mosquitoe breeding. He was, however, not authorised to accept the fine in cash or in any other mode. The challan after issuance can be disposed of only by Municipal Magistrate.
9.4 To prove demand of bribe, which occasioned lodging of complaint, prosecution solely relies upon the testimony of Dara Singh (PW8). He is the sole witness for this part of prosecution case, as demand was made directly from him. Complainant as PW8 has deposed that accused had been making demand of bribe from him by making phone calls on mobile No. 9212175515. On receiving the last call he went to PS ACB on 13.6.2012 and lodged the complaint. On being cross examined by Ld. defence counsel, he deposed that two of the calls received from the accused were about 15 days prior to the raid. He denied the suggestion that accused had made only one phone call to him. He also suggested that accused made a phone call to Dinesh Pandey on 9.6.2012 at 13.29.52 hours informing him of the challan for his premises. He denied the suggestion that on being informed by Dinesh Pandey he made three phone calls to the accused on 9.6.2012 between 2.03 PM to 2.05 PM. He denied the suggestion that accused had never demanded any bribe from him.
9.5 From the evidence as noticed above, the testimony of State Vs. Ved Prakash Sharma Page 13 of 29 14 complainant does not become doubtful, as the defence has only given certain suggestions, but has not led any evidence to prove the suggestions. Dinesh Pandey was not summoned to prove that accused called him up informing of presence of mosquitoe larva at his premises which was under construction. Dinesh Pandey was not examined to prove that complainant was engaged by him to construct his building or that he was in any manner related to Smt. Sripati Pandey, to whom notices were addressed. The call detailed record of accused was not proved to support the argument that there were no phone calls by the accused to the complainant about 15 days prior to the raid. All the aforesaid evidence was of course available to the accused. Having given the aforesaid suggestions and failed to prove them, it shall be presumed that complainant's version is correct. Moreover, the later conduct of accused accepting the treated GC notes from the complainant, as discussed in subsequent paras, lends credence to the prosecution version that accused had been demanding bribe from the complainant.
9.6 Sh. Verma has also referred to law laid down in Hari Singh Yadav's case to argue that Raid Officer has not verified the authenticity of complaint before conducting the raid. In the cited case failure of RO to verify the complaint was not the sole ground for acquittal. The inconsistency in the statement of panch witness and TLO and failure of TLO to explain taking of hand wash, when the money had not been State Vs. Ved Prakash Sharma Page 14 of 29 15 accepted in hand were the primary reason for acquittal. 10.1 To establish demand and acceptance of bribe at the time of trap, prosecution case rests primarily upon the oral testimony of complainant (PW8) and shadow witness (PW13). Hand wash of the accused and presence of phenolphthalein powder on his hand is a further corroborative evidence of acceptance of bribe by the accused. Complainant Dara Singh (PW8) has deposed that raiding team was constituted by the RO, which left for office of accused at 4.30 PM. On the way he made a phone call to the accused to check his availability. He made a phone call from Mobile Phone No. 9868865515 and accused told him that he was still in the office and waiting for him. He further deposed that he along with the shadow witness went inside the room of the accused and introduced the shadow witness as a relative. Accused then asked him that if he had brought the bribe money. He took out the GC notes from his left pocket using his right hand and handed over the same to the accused in his right hand, who kept the same in his challan book. On being cross examined by Ld. Additional PP he denied that accused had retained the treated GC notes in his right hand and had not kept them in the challan book. On being cross examined by Shri Verma, Ld. defence counsel, he denied that he was raising construction on a plot owned by Dinesh Pandey. He had not made inquiries from the accused regarding the address of the property for which he was threatened of being challaned. He did not ask for State Vs. Ved Prakash Sharma Page 15 of 29 16 copies of challan as he was raising construction in his own house as well as on Plot No. E1789, Ranjeet Nagar. He also deposed that IO had asked him to make a phone call. He denied the suggestion that accused did not accept any bribe from him.
10.2 Swapan Kumar Ray (PW13) has deposed that at about 4.15 PM raiding team left PSACB and reached the office of Malaria Inspector, MCD, Baljeet Nagar at about 5.00 PM. Complainant then made a phone call and asked the said person if he was present in the office. After confirming the presence he and complainant went inside the office of MCD at about 5.20 PM. Accused who was present in the room told the complainant that a challan will be issued against him and that he should pay Rs. 1000/ for not issuing the challan. Thereafter, complainant took out treated GC notes from left pocket of his shirt and gave the same to the accused who accepted the same in his right hand and kept in his fist. On being cross examined by Ld. Additional PP he deposed that he did not remember having stated to the IO that accused demanded Rs. 1,000/ as bribe for not issuing the challan. On being cross examined by Ld. defence counsel he deposed that RO did not take down in writing any proceeding in his presence before leaving for the raid. There was only one table in the room of the accused. The room size was about 10 X 10 feet. He did not remember having stated to the IO that accused told the complainant that a challan will be issued against him and then complainant asked him as to State Vs. Ved Prakash Sharma Page 16 of 29 17 what should he do. He also did not remember having stated to the IO that accused told him to pay Rs. 1000/ for non issuance of challan. However, he volunteered that he had stated to the IO about the demand of Rs. 1000/. He denied any exchange of hot words between the complainant and the accused. He denied the suggestion that treated GC notes were recovered from the challan book lying on the table of the accused.
10.3 From the testimony of aforesaid two witnesses, it is apparent that complainant and panch witness went to the room of accused on 13.6.2012 at about 5.00 PM. Before entering the room of accused complainant had made a phone call to ascertain his availability and for the satisfaction of RO. Phone call is entered in the call detailed record of the mobile phone of accused Ex. PW12/D, to have been received at 17:09 Hours which call had lasted about 22 seconds. Both the witnesses have deposed that on entering the room of accused shadow witness Swapan Kumar Ray was introduced as relative of the complainant. Both the witnesses have further deposed that accused demanded Rs. 1,000/ as bribe and on the demand complainant took out treated GC notes from his pocket and handed over the same to the accused who accepted the same in his right hand. Both the witnesses, however, differ with each other on certain aspects, which cannot be said to be significant and material. Swapan Ray (PW13) has deposed that accused told the complainant that challan State Vs. Ved Prakash Sharma Page 17 of 29 18 will be issued against him and on the asking of complainant, accused told him to pay Rs. 1000/ for non issuance of challan. Complainant (PW8) on the contrary has deposed that on entering the room accused asked him if had brought the bribe money.
11.1 Ld. Additional PP has relied upon the law laid down in Shanker Bhai Lalji Bhai Rot Vs State of Gujrat (supra) to argue that minor variance as regards the mode of demand was not sufficient to corrode the credible and cogent evidence of prosecution witnesses. In the cited case witness had deposed that demand was made by gestures and signs. It was held that testimony of witnesses was consistent about the demand. Minor variance as regards the mode of demand was ignored. In the present case also there is no variance in the testimony of complainant and shadow witness that accused demanded bribe from the complainant. Shadow witness is more descriptive and detailed in his testimony than the complainant. As long as the act of the accused regarding demand of bribe is deposed by both, giving more details by one witness would not vitiate the evidence of demand. Moreover, it is settled preposition of law that eye witness tend to embroider and embellish their oral testimony, which are to be ignored and separated. ( Ugar Ahir Vs State of Bihar 1965 SC 277 ).
11.2 Similarly both the witnesses have also deposed about acceptance of treated GC notes by the accused. They have both deposed that on demand by the accused, complainant took out treated State Vs. Ved Prakash Sharma Page 18 of 29 19 GC notes from his pocket using his right hand and handed over the same to the accused who accepted the same in his right hand. Complainant (PW8), however, has gone a step beyond and deposed that after accepting the notes in his right hand accused placed them in his challan book which was lying on the table. Here again since the testimony of both the witnesses till the stage of acceptance in his right hand, is corroborative and further supported by evidence of hand wash turning pink; I would not give any advantage to the defence. Right hand wash of the accused taken in Sodium Carbonate solution which had turned pink has been discussed in subsequent para 12.5. Dealing with minor contradictions, in ocular evidence, the Hon'ble Supreme Court in Akbri Vs State 2009 Criminal Law Journal 4199 enumerated certain principles for appreciation of ocular evidence. It was held that ordinarily a witness cannot be expected to recall accurately the sequence of events which had taken place in short span of time. The power of observation was held to differ from person to person. Witness was held not to be expected to possess a photographic memory and recall accurately the words used by them and heard by them. These principles were followed by the Hon'ble High Court of Delhi in Tirath Singh Rawat Vs CBI decided on 27.11.2013 in Criminal Appeal No. 461/2003. For the aforesaid reasons I hold that prosecution has proved beyond reasonable doubt that accused demanded bribe from the complainant and consciously accepted the treated GC notes in his State Vs. Ved Prakash Sharma Page 19 of 29 20 right hand.
12.1 To prove recovery of treated GC notes from the possession of accused prosecution case rests on the testimony of PW8, PW13 and PW15. Complainant (PW8) has deposed that after acceptance of treated GC notes by the accused, panch witness gave predetermined signal and the raid officer entered the room. He disclosed his identity and challenged the accused that he had accepted bribe. He told the Raid Officer that accused had demanded and accepted Rs. 1000/ from him. RO removed the treated GC notes from the challan book and kept the same with him. On being cross examined by Ld. Additional PP he admitted that on arrival of the Raid Officer panch witness had told him that accused had demanded and accepted bribe. He denied having stated to the IO that search of the accused was done by panch witness, and treated GC notes were recovered from his right hand. This witness has further deposed that serial numbers of recovered GC notes were compared with the numbers mentioned in preraid report, which had matched. The right hand of the accused was dipped in some water type solution which turned pink. On being cross examined by Ld. defence counsel, he denied the suggestion that hand wash proceeding and seizure was not done at the office of the accused. There was no suggestion to the witness that bribe was not recovered from his possession.
12.2 Panch witness (PW13) has deposed that on State Vs. Ved Prakash Sharma Page 20 of 29 21 predetermined signal given by him raiding team arrived at the spot and he informed the Raid Officer about demand and acceptance of bribe by the accused. RO disclosed his identity and offered his search to the accused. On instructions of RO he recovered treated GC notes from the right hand fist of the accused. Serial numbers of recovered GC notes were compared with the serial numbers mentioned in preraid report, which matched. Right hand of the accused was dipped in some water type solution which turned pink. The solution was transferred in two bottles which were sealed. On being cross examined by Ld. defence counsel he denied the suggestion that treated GC notes were recovered from a challan book, lying on the table of the accused. He denied the suggestion that GC notes were not recovered by him from the right hand of the accused.
12.3 RO/Inspector Ranbir Singh (PW15) has deposed that on receiving the predetermined signal he reached inside the room of the accused, where panch witness informed him about demand and acceptance of bribe by the accused. He introduced himself and offered his search. The panch witness on his instructions recovered bribe money from the right hand of the accused. Serial numbers of recovered GC notes were compared with the serial numbers mentioned in preraid report, which matched. Recovered GC notes were seized. Right hand of the accused was washed in Sodium Carbonate solution, which turned pink and the solution was transferred State Vs. Ved Prakash Sharma Page 21 of 29 22 in two clean empty bottles which were sealed. During cross examination of this witness he denied that recovery was not effected from possession of the accused. He denied that no hand wash proceedings were done at the spot.
12.4 From the evidence of PW8, PW13 and PW15 as noticed above, it can be safely held that prosecution has proved recovery of treated GC notes from the possession of the accused. Panch witness (PW13) and Raid Officer (PW15) have given an absolutely consistent version of the recovery of GC notes. Though, complainant (PW8) has deposed that recovery was from the challan book lying on the table of the accused; yet, this minor discrepancy does not cause any dent in the broader testimony of the witness that recovery was effected from possession of the accused. It is not the case of the defence that GC notes were planted in the Challan/Notice book which was lying on the table of the accused. There is no explanation by the accused in statement u/s 313 Cr. P.C. or in his defence as to how the treated GC notes were recovered from his Notice book, which was in his possession. I, therefore, do not attach any importance to the statement of complainant (PW8) that recovery of treated GC notes was from the Notice book of the accused and not from his right hand. As discussed above, the law laid down in Akbari's case, minor variations shall have to be ignored. It may be pertinent to mention here that witnesses have referred to Notice Book as Challan Book.
State Vs. Ved Prakash Sharma Page 22 of 29 23 12.5 Recovery of treated GC notes from the possession of accused as deposed by three witnesses is further corroborated by the detection of phenolphthalein powder on the right hand of accused. All the three witnesses aforesaid have deposed that right hand of the accused was washed in colourless Sodium Carbonate solution, which turned pink. The pink solution was transferred in two bottles marked as Mark RHW1 and Mark RHW2. FSL report Ex. PW6/A reports presence of phenolphthalein powder in bottle marked as Mark RHW1 which was examined at FSL, Rohini. Shri Amit Rawat, Senior Scientific Officer, FSL proved his report detecting presence of phenolphthalein powder. Ct. Krishan Kumar (PW2) and MHC(M) Chander Singh (PW5) have proved that the case property including RHW1 had remained in their custody and had not been tampered with. I, therefore, hold that prosecution has proved beyond reasonable doubt that treated GC notes were recovered from the possession of accused Ved Prakash Sharma.
13.1 Having held that prosecution case regarding demand, acceptance and recovery of bribe is proved; nonetheless, it shall be pertinent to discuss the defence evidence and the defence raised by the accused. Shri Yogesh Verma, Ld. defence counsel has argued that the entire prosecution evidence as discussed above, is set to naught because the accused in Challans dated 2.6.2012 and 9.6.2012 Ex. PW8/DB and Ex. PW8/DE had recorded that complainant had offered State Vs. Ved Prakash Sharma Page 23 of 29 24 him bribe of Rs. 500/ and Rs. 1,000/ respectively. The argument on the surface looks very impressive and casts grave doubt on the prosecution case. However, on scratching the surface, sheen from the argument is lost. From the statement of Ashok Kumar Upadhaya (DW2) it is pointed out that challan Ex. PW8/DB was received in the court on 24.6.2012. The accused who had been arrested on 13.6.2012, remained in custody till 14.8.2012 and, therefore, had no occasion to have made this endorsement subsequent to the trap. The argument of Ld. defence counsel is countered by Ld. Additional PP with an equally impressive response. It is pointed out that the challan Ex. PW8/DB and Ex. PW8/DE are not proved to have been served upon the complainant or correctly addressed to him. There is no evidence that complainant was in any manner associated with premises for which challans Ex. PW8/DB and Ex. PW8/DE were issued. The owner of aforesaid premises namely Smt. Sripati Pandey has not been examined by the accused to prove that she had engaged complainant Dara Singh as a contractor to raise construction on her premises. There is also no evidence that the challans Ex. PW8/DB were compounded by complainant Dara Singh in the court. Challan Ex. PW8/DE was disposed of by the court vide order Ex. DW2/A. The challan was dismissed for non prosecution. Accused summoned and examined in defence, owners of some other buildings to prove the challans issued by accused on 9.6.2012, but there is no explanation as to why he did State Vs. Ved Prakash Sharma Page 24 of 29 25 not summon and examine Smt. Sripati Pandey. The endorsement on the challan regarding offer of bribe of Rs. 500/ and Rs. 1000/ respectively is also doubtful for the reasons that challans invited penalty of Rs. 500/ or so only. Ashok Kumar Upadhaya (DW2) deposed that challan Ex. PW8/DB was disposed of on 22.7.2013, imposing a fine of Rs. 500/. I am of the opinion that in the face of evidence that challans invited a penalty of Rs. 500/ or so, there was no occasion for the complainant to have offered bribe for the same amount; which was the penalty amount or higher than the likely penalty The endorsement on the challans also becomes doubtful in view of the answer given by accused to question No. 24 in his statement u/s 313 Cr. P.C. He has stated that complainant came to him on 2.6.2012 and offered him a bribe of Rs. 500/ which he declined and mentioned on the challan. Complainant again came to him on 9.6.2012 and offered a bribe of Rs. 1000/. Complainant again rejected the offer and mentioned this fact on the challan dated 9.6.2012. This answer of accused when juxtaposed with the testimony of Dinesh Kumar (DW6), raises a doubt on the authenticity of endorsement or on the manner of issuance of challan. Dinesh Kumar (DW6) has deposed that challans were issued on 2.6.2012 and 9.6.2012 to builder who refused to accept the challans. Both the challans also record endorsement that 'Vijay Mistri refused to sign the challans'. In my opinion all the three aforesaid facts cannot be reconciled. If the builder was present, Vijay Mistri could not have State Vs. Ved Prakash Sharma Page 25 of 29 26 refused to accept the challan. If Vijay Mistri was present and had refused to accept the challan, offer of bribe could not have made by complainant Dara Singh/builder. Moreover, if challans were issued at the site, the complainant could not have visited the accused and offered bribe.
13.2 For the reasons discussed above, I am of the considered opinion that defence sought to be raised by the accused does not raise any doubt on the prosecution case, even by preponderance of evidence. Reliance by Shri Yogesh Verma on M.P. Singh's case (supra) is misplaced. As discussed in paras 11 & 12, the variance in the statements of complainant and panch witness are insignificant. They are absolutely consistent with each other as regards broader case of prosecution regarding demand, acceptance and recovery of bribe. In Brij Mohan's case (supra) contradiction regarding the place of recovery of bribe money coupled with conflicting stand of shadow witness, independent witness and complainant was held to be the ground for acquittal. The evidence on record in present case is consistent and corroborative. Similarly, the law down in Rajpal's case (supra) is also not applicable to the facts of the present case. In the cited case again complainant, independent witness and RO had given inconsistent statements.
13.3 The conduct of accused also supports the case of prosecution. The call detailed record of the mobile phone of the accused State Vs. Ved Prakash Sharma Page 26 of 29 27 Ex. PW12/D records three calls have been received by him from the complainant on 9.6.2012 and one call made by him to the complainant on 12.6.2012. There is no explanation tendered by the accused as to why he made a phone call to the complainant. Explanation tendered by him as regards phone calls made by complainant to him on 9.6.2012, is not sufficiently proved as he has failed to examine Dinesh Pandey, on whose instance the complainant is alleged to have made calls to the accused.
14. For the reasons discussed in paras 9 to 13 above, I am of the considered opinion that prosecution has proved the charges against the accused beyond reasonable doubt. I, therefore, hold that prosecution has proved beyond reasonable doubt that accused who was working as an Inspector in Malaria Department of MCD demanded and accepted Rs. 1000/ from complainant Dara Singh as gratification other than legal remuneration as motive for doing or forbearing to do an official. He is accordingly convicted for the offences punishable u/sec. 7 of the PC Act and u/sec.13 (i) (d) of the PC Act punishable u/s 13(2) of the PC Act. Ordered accordingly.
Announced in the open Court (NAROTTAM KAUSHAL)
on 21.10.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Ved Prakash Sharma Page 27 of 29
28
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE
Versus
Ved Prakash Sharma
S/o Late Sh. Harish Chandra
R/o WZ2333, Raja Park, Shakur Basti,
Delhi34.
Corruption Case No. : 21/2013
FIR No. : 12/2012
Case Identification No.: 02401R0466022013
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988
ORDER ON SENTENCE
1. Vide judgment dated 21.10.2014, Ved Prakash Sharma stands convicted for offences punishable u/sec.7 & 13(2) of the Prevention of Corruption Act (hereinafter called as 'the PC Act'). Vide the present order, I shall sentence him for the aforesaid offences.
2. Sh. B.B. Bhasin, Ld. Addl. PP has prayed for a stringent sentence. It is submitted that the convict was working as an Inspector in Malaria Department of MCD indulged in corrupt activity. He demanded and accepted bribe from one Dara Singh for not challaning him with respect to having found mosquitoe breeding in his under construction building. His conduct and action do not deserve any lenient approach. Imposition of high fine, to serve as a deterrent has State Vs. Ved Prakash Sharma Page 28 of 29 29 also been prayed for.
3. Sh. Yogesh Verma, Ld. counsel for the convict has prayed for a lenient approach. It is submitted that convict is a 61 years old retired person. He has to look after his 81 years old ailing mother and 58 years old wife. He is also having one 34 years old married son who is working in a shop and earning only Rs. 6000/ per month. It is also submitted that convict is the sole bread earner of the family. Prayer has also been made for taking lenient approach, as regards the imposition of fine. It is further submitted that convict remained in custody from 13.06.2012 to 14.08.2012, during investigation.
4. I have heard the Ld. counsels. Considering the family background of convict which is dependent upon him; I am inclined to take a lenient view. I am of the opinion that interest of justice shall be served by sentencing the convict to undergo rigorous imprisonment for a period of 2½ years, for the offence punishable u/s 7 of the PC Act. He shall also be liable to pay a fine of Rs. 10,000/ and in default of payment of fine, he shall undergo simple imprisonment for a period of six months. As regards the offence punishable u/s 13 (2) of the PC Act convict shall undergo rigorous imprisonment of three years and is also held liable to pay a fine of Rs. 15,000/ and in default of payment of fine, he shall undergo simple imprisonment for a period of six months.
5. Both the sentences shall run concurrently. Convict shall also be entitled to benefit of section 428 Cr PC.
Announced in the open Court (NAROTTAM KAUSHAL)
on 31.10.2014 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
State Vs. Ved Prakash Sharma Page 29 of 29