Delhi District Court
State vs . Om Prakash Maan on 28 November, 2011
IN THE COURT OF SH. RAKESH SIDDHARTHA,
SPECIAL JUDGE (PCACT)06, TIS HAZARI, DELHI
Case ID No. 02401R0722612007
CC No. 43/09
STATE V/S. OM PRAKASH MAAN
S/o Sh. Maan Singh,
R/o RZD/61A, Dabri Extension,
New Delhi45.
FIR No. 76/06
U/S 7, 13 (1) (d) & 13 (2) of POC Act
Date of Institution : 27.07.2007
Judgment reserved on : 26.11.2011
Judgment delivered on : 28.11.2011
JUDGMENT
1. A complaint was lodged by one Gajender Choudhary against Om Prakash Maan that the said Om Prakash Maan had demanded Rs. 1,000/for the return of his Rs. 30,000/ which he had deposited with the department in favour of Commissioner Customs Air Cargo Exports.
2. The complainant had produced one GC note of Rs. 500/ and five GC note of one hundred each before the Raid officer Sunil Kumar. The Raid Officer had noted the numbers of the said GC notes, after getting the same checked through panch witness, in pre raid report. Phenolphthalein powder was applied on State V/s Om Prakash Maan Page No. 1/25 the GC notes and right hand of panch witness was got touched to the tainted GC notes and thereafter right hand wash of panch witness was taken in colorless solution of sodium carbonate which turned pink. Raid officer, in the presence of panch witness, had handed over tainted GC notes to the complainant who kept the same in his pocket.
3. The complainant was instructed to keep the panch witness close to him and to talk and to transact with accused in such a manner so that panch witness would be able to overhear and see the transaction between them and complainant was further instructed to give the bribe money to accused only on his specific demand.
4. The panch witness was also similarly instructed to remain close to the complainant and overhear the conversation between complainant and accused and also observe the incident and after the demand and acceptance of money by the accused, he should give a signal to the raiding party by moving his hand over his head. Thereafter, hands of Raid Officer and panch witness were got washed with the soap and the solution was thrown away.
5. At about 2:15 pm, Complainant alongwith panch witness, Raid Officer Insp.Sunil Kumar, Insp. Harvinder Singh, SubInsp. Surender, Ct. Raju, together other members of Raiding Team left AC Branch in a Government vehicle for the PAO Office, IGI, Air port.
6. At about 3:25 pm, raiding team reached at the spot. The Government State V/s Om Prakash Maan Page No. 2/25 vehicle was parked at some distance away from the spot. IO Inspector Harvinder Singh and driver were left in that vehicle. Complainant and panch witness were again reminded about the instructions given to them earlier and were sent towards the appointed place whereas members of the raiding party followed them keeping reasonable distance and then took their suitable positions.
7. At about 3:45 pm, the panch witness gave a signal to the Raiding Team which reached Room No. 232, and enquired as to what had happened to which the panch witness replied that accused Om Prakash Maan had demanded and had accepted the tainted GC notes and had retained the same in his right hand and had kept it in his left front pocket of his shirt.
8. The Raid Officer disclosed his identity as an AC Branch official to the accused and challenged him. RO also asked the accused that he was required to be searched and if he wanted, he could take the search of the members of the raiding party to which the accused declined.
9. The panch witness was instructed to recover the tainted GC notes from the pocket of accused of which the serial numbers were compared with that noted in the preraid report and on being found to be identical they were taken in possession. Hand wash of the accused was taken in colourless solution of sodium carbonate which turned pink. The said residue was preserved in two clean bottles and were retained. Thereafter Raid Officer prepared post raid report. The accused was arrested after the documents were seized and rukka was prepared by the RO and sent the same through Ct. Raju to PS AC Branch for registration of the case State V/s Om Prakash Maan Page No. 3/25 while Insp. Harvinder Singh was called to the spot to whom custody of the accused together with the relevant documents were handed over for further investigation of the case.
10. A case was registered and chargesheet was filed and charges were framed.
11. As per charge, on 13.11.2006 at Pay & Accounts Office, Custom House, IGI Airport, New Delhi accused Om Prakash Maan while working as Senior Accountant and as such being a public servant demanded and accepted bribe of Rs. 1000/other than legal remuneration from the complainant Gajinder Choudhary in consideration of releasing the cheque of Rs. 30,000/ of the complainant and thereby he committed an offence punishable under4 Section 7 of the Prevention of Corruption Act, 1988.
12. Secondly, on the abovesaid date and place, accused Om Prakash Maan being employed as above public servant obtained bribe of Rs. 1000/ from the said complainant as a pecuniary advantage for himself by corrupt or illegal means or otherwise by abusing his position as such public servant and thereby he committed an offence of criminal misconduct as specified under Section 13(1)(d) and punishable under Section 13(2) of the Prevention of Corruption Act, 1988.
13. Accused pleaded not guilty and claimed trial.
14. In evidence, the prosecution had examined twelve witnesses to substantiate the charge. Statement of accused u/s 313 Cr.P.C. was recorded. Therein the accused has denied ever demanding or accepting bribe. In fact, the State V/s Om Prakash Maan Page No. 4/25 accused has stated that he had no reason to demand the bribe amount as the cheque had already been prepared and moreover it was not his bailiwick. He had no authority to withhold or issue the cheque. Thereafter the accused had examined one witness in his defence.
15. I have heard the arguments on behalf of prosecution addressed by the Ld. Addl. PP Sh. Abdul Aleem who has argued that the prosecution has been successful in proving that the accused had obtained the bribe amount as the amount was recovered immediately after the accused had received and had kept the bribe amount in his pocket of his shirt. The presence of Phenolphthalein powder on his hand corroborates that the accused had in fact accepted the GC notes from the complainant. It has also proven on record that the amount of Rs. 30000 was required to be paid to the complainant that cheque of which was being delayed by the accused for want of bribe amount of Rs. 1000/. Hence, the accused be held guilty under the provisions of POC Act and convicted accordingly.
16. I have also heard the arguments on behalf of accused addressed by Sh. Yogesh Verma counsel for the accused that there was no question of demand by the accused as the accused was neither the authority to pass the cheque of the complainant in fact the prosecution has itself examined PW8 Smt. Chandralata Chakravorty, Administrative Officer who was to sanction the payment for preparation of the bill which is passed by the Chief Account Officer. Hence it was not the accused who was responsible for releasing of the cheque to the complainant. It was also been proven on record that as the accused that the panch witness who has supported the prosecution case yet the same has been done at the State V/s Om Prakash Maan Page No. 5/25 behest of the prosecution and to stave retribution from the department. The complainant has totally resiled and has not supported the case of prosecution inasmuch as the complainant has giving the positive result of presence of phenolphthalein in his hand wash. A major discrepancy has been shown wherein no pocket wash has been shown the presence of phenolphthalein furthermore, the bribe amount is alleged to have been demanded by one "Bade Sahab". A false case is alleged to have been foisted on the accused and the same has not been proven on record by the prosecution. In view of the said fact, benefit of doubt should be extended towards the accused and he should be acquitted.
17. Before we delve into the complicity of the accused in commission of the offence, it is imperative to determine whether the prosecution had procured the sanction under the provision of POC Act which is sine quo non for prosecution of the accused under POC Act being a public servant.
18. In regard to the sanction, the Hon'ble Supreme court has time and again stressed that it is incumbent on the prosecution to prove that a valid sanction had been accorded by the Sanctioning Authority after it was satisfied that a case for sanction had been made out constituting the offence. This should be done in two ways either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it.
19. Sanction U/s 19 of POC Act is not an idle formality, but it is a State V/s Om Prakash Maan Page No. 6/25 sacrosanct act as the future and career of a Government official is involved. Hon'ble Supreme Court in Ram Kishan Prajapati Vs. State of U.P., (2000) 10 SCC43 has stressed that the person according sanction should be a competent person and a sanction accorded by the person not competent to grant the same cannot be held to be a valid sanction. This fact has not been challenged by the accused.
20. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. What the court has to see is whether or not the Sanctioning Authority, at the time of giving sanction, was competent to accord sanction and whether it had applied its mind. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
21. Sanction lifts the bar for prosecution. Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but it is not a shield for the guilty. The validity of the sanction would, therefore, depend upon the material placed before the Sanctioning Authority and the fact that all the relevant facts, material and evidence have been considered by the Sanctioning Authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the Sanctioning Authority had considered the evidence and other material, placed before it. This fact can also be established State V/s Om Prakash Maan Page No. 7/25 by the extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority.
22. Since the validity of "sanction" depends on the application of mind by the Sanctioning Authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.
23. The Hon'ble Delhi High Court in the case of Bhisham Kumar Vs. State 1999 (iii) AD (Delhi) 177, has also applied the test as prescribed in the enunciation of the Hon'ble Supreme Court in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh 1979 Chandigarh Criminal Cases 113 (SC) and the view taken by the Supreme Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622.
State V/s Om Prakash Maan Page No. 8/25
24. For prosecution of the accused under the POC Act it was imperative that a sanction U/s 19 of POC Act be procured from which the trial could ensue after taking cognizance of the offence. For the said purpose PW4 Sia Sharan Controller of Account, Central Board of Excise and Customs, Delhi has been examined who has testified that on 07.06.2007 while posted as such a request was received from AC Branch alongwith the copies of the FIR, raid report seizure memo, statements recorded U/s 161 Cr.P.C, report of FSL for granting of sanction as aforestated. Against Om Prakash posted as Senior Accountant in PAO (Customs House New Delhi). The witness has gone though the documents placed before him and after applying his mind and examining the facts and circumstances of this case was of the view that the accused Om Prakash Maan should prosecute in this case. Being a competent authority to remove the accused from service the witness has accorded sanction U/s 19 of the POC Act to prosecute the accused vide sanction order PW4/A which the bears the signatures of the accused at point A was sent to DCP AC Branch vide covering letter Ex.PW4/B which bears the signatures of A.B. Kalsi Senior Accountant Officer.
25. No substantial challenge has been made as to the capacity of the witness and the authenticity of the sanction order barring the fact that the sanction order does not mentioned that the documents that had been perused by the witness to formulate the opinion for the prosecution of the accused, in view of the fact that no tenable challenge has been made on which the Hon'ble Supreme Court has held in Shankerbhai Laljibhai Rot vs. State of Gujarat 2004 (13) SCC 487 : State V/s Om Prakash Maan Page No. 9/25 "So far as the question of Sanction is concerned, in the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
Consequently a valid sanction had been accorded from which prosecution of the accused could ensue.
26. The case was initiated on the complaint of Gajender Chaudhary who was a resident of Village Nangal Dewat in the year 2006 and was the owner of the firm named Metroj Enterprises since 1998. In the month of October, 2003, the complainant PW9 had given a banker's cheque in favour of Commissioner of Custom, Air Cargo Export as EMD of Rs.30,000/ for a tender. Due to some technical reasons, the work could not be awarded. The complainant had asked for return of Rs.30,000/ from the Custom Department, which was sanctioned. The Custom Official had sent the bill for this amount to PAO. In the said office, one Sadashivam demanded 4% of the amount. The said Sadashivam was called as 'Bade Saheb'. It was only the said person who had demanded the said amount. Not being amiable to the said demand, a complaint was lodged to this effect in AC branch which is Ex.PW5/A and accordingly, the complainant handed over one GC note in the denomination of Rs.500/ and five GC notes in the denomination of Rs. 100/ in presence of Rajeev Sharma, panch witness. The numbers of GC notes were noted down in the preraid report Ex.PW5/B on which the witness had appended his signatures after getting it checked through the panch witness. State V/s Om Prakash Maan Page No. 10/25
27. Phenolphthalein powder was applied on the GC notes and demonstration the the characteristics of phenolphthalein powder and its reaction with sodium carbonate was given to the complainant and panch witness.
28. Instructions were given to the complainant to keep the panch witness in close proximity and to talk and to transact with accused in such a manner so that the panch witness would be able to overhear and see the transaction. The complainant was further instructed to give the bribe money to the accused only on his specific demand.
29. The panch witness was similarly instructed to remain close to the complainant and to overhear the conversation between complainant and the accused and also to observe the incident and after the demand and acceptance of money by the accused, he should give a signal to the raiding party by moving his right hand over his head.
30. Thereafter, in the presence of panch witness, tainted GC notes were handed over to the complainant who kept the same in the upper left pocket of his Kurta. Thereafter, hands of panch witness were got washed with the soap and clean water while the solution was thrown away. The RO recorded pre raid proceedings.
31. At about 2:45 PM, complainant alongwith panch witness, Raid Officer Insp. Surender, Const. Raj, driver, HC Naresh left AC Branch in a Government vehicle for PAO, Custom House, IGI Airport, and reached there at about 3:25 PM. State V/s Om Prakash Maan Page No. 11/25 The Government vehicle was parked at some distance. The IO and the driver were left in the government vehicle while the other members of the raiding team followed keeping a reasonable distance. At about 3.30 p.m., the complainant and panch witness reached PAO, Custom House, 2nd Floor, where the raiding team took there suitable position. Accused Om Prakash was sitting to whom the complainant enquired about the cheque. Om Prakash Maan, the accused in turn asked the complainant to meet 'Bade Sahab'. The complainant and the panch witness went towards the office of 'Bade Sahab' (Sadashivam) and opened the door and wished him. Other persons were sitting there. The said Sadashivam with gesture asked the complainant to come later.
32. The complainant returned to the accused who enquired if the complainant had met 'Bade Sahab' to this the complainant replied that 'Bade Sahab' was busy and that the complainant was called later on.
33. The accused asked the complainant as to why Sadashivam had called him. The complainant took out GC notes from his pocket and showed the same to the accused and in process some GC notes fell on the table which the accused Om Prakash helped to collect. Panch witness gave the predetermined signal and the raiding party reached the spot. The raid officer disclosed his identity and recovered the GC notes. It is further testified that accused Om Prakash Maan, the accused alongwith RO and raiding party returned to the AC Branch where the currency notes were seized. Right hand wash of accused was taken in colourless sodium carbonate solution which turned pink and the residue was sealed in two clean bottles and identified. The pocket wash of accused was also taken which also State V/s Om Prakash Maan Page No. 12/25 gave positive result of presence of phenolphthalein and the residue preserved and identified. The shirt of accused was taken in to possession and converted into parcel vide seizure memo Ex.PW5/D. Post Raid Report Ex.PW5/E. The recovered GC notes were seized vide memo Ex.PW5/C. The documents viz. cheque was taken into possession which is Ex.PW9/A, bill Ex.PW9/B, contingent bill Ex.PW9/C, sanction order Ex.PW8/A, photocopy of banker's cheque Ex.PW9/D, note sheet Ex.PW9/E and tghe original cheque Ex.PWX1. The said documents were seized vide memo Ex.PWX/9. Rukka was prepared and handed over to constable Rajiv. Site plan of the same was prepared by IO. Om Prakash Maan was arrested vide memo Ex.PW6/B. Search of accused was conducted vide memo Ex.PW6/C. The GC notes had been identified as Ex.P1 to P6 which were seized vide memo Ex.PW5/C. The hand washes Ex.P7 to P10 and pocket wash were seized vide memo Ex.PW5/D.
34. The witness was cross examined by the prosecution to elicit the testimony as per the statement given u/s 161 Cr.P.C. but the complainant as witness has resiled and has not supported the case of prosecution in as much as the witness had admitted the fact that accused Om Prakash Maan had never demanded or accepted any bribe money from the complainant and further more, the hands of accused were tainted with phenolphthalein on coming into contact with the GC notes when he was assisting the complainant in lifting them from the table when the complainant had dropped the same.
35. To prove the case of the prosecution where the complainant has resiled from his statement and has testified to the contrary, the corroboration and the State V/s Om Prakash Maan Page No. 13/25 factual matrix is required to be elicited aliunde. For the said purpose, PW7 Rajiv Sharma has been examined.
36. PW7, the panch witness has been examined who has testified that on the relevant date i.e. 3.11.2006 after he had reported to the AC Branch at about 9.30 a.m., the complainant Chaudhary had come to lodge a complaint at about 11.30 p.m. Ex.PW4/A which was given to the panch witness who signed the same and thereafter handed it over to Inspector Sunil Kumar, the Raid Officer. As per the complaint, an official of the custom house was demanding bribe from the complainant for releasing the cheque. The complainant had handed over one GC note of 500/ and five GC notes of 100/ each. The serial numbers of the said GC notes were recorded. The Preraid report was drawn which is Ex.PW5/D. The R.O. applied the phenolphthalein powder on the GC notes and thereafter the demonstration of purpose of such application by getting the panch witness to touch the same and thereafter hand wash was taken which turned pink. Instructions were given to the complainant to keep the panch witness in close proximity and to talk and to transact with accused in such a manner so that the panch witness would be able to overhear and see the transaction. The complainant was further instructed to give the bribe money to the accused only on specific demand.
37. On reaching the site with the raiding team, the panch witness alongwith the complainant went to the 2nd floor of the office and entered the room of Omparkash Maan, duly identified who was found sitting with 34 persons. The complainant enquired about his work to which the accused replied that his work had been done. The accused was required to do as what was required by 'Bade State V/s Om Prakash Maan Page No. 14/25 Sahab' at his behest and also to give Rs.100/ as labour to search the document. The complainant took the GC notes from his kurta and gave the same in the right hand of accused which he kept in the left side pocket of his shirt. The panch witness came out of the room and gave predetermined signal. Immediately, thereafter the accused was apprehended. Raid Officer enquired to which the panch witness replied that accused had demanded and accepted Rs.1000/ from the complainant and had kept the same in left side pocket of his shirt. It is testified that the RO challenged the accused that he had demanded and accepted the GC notes as bribe at which the accused became perplexed and threw the GC notes on the table which were retrieved by the panch witness and the numbers tallied. The GC Notes were taken into possession vide memo Ex.PW5/C. His right hand wash was taken which gave positive indication of presence of phenolphthalein. The solution was transferred in two clean bottles which were sealed and mark of identification was pasted on it. The shirt of the accused was also taken off and left pocket wash was taken which also gave positive indication of presence of phenolphthalein powder. The shirt was taken in possession and converted into a parcel and sealed. The same was taken in possession vide seizure memo Ex.PW5/D. The cheque alongwith documents were also seized which are Ex.PW5/X1 to X8 seized vide memo Ex.PW5/X9. Postraid proceedings were drawn which are Ex.PW5/E and accused was arrested vide memo Ex.PW6/B. Personal search of accused was taken vide memo Ex.PW6/C while the GC notes have been identified as P1 to P6. The residue of hand wash etc. is Ex.P7 to Ex.P10 and shirt is Ex.P11.
38. The witness was crossexamined at length wherein he has denied that the said raid did not take place or that the accused was not arrested in his State V/s Om Prakash Maan Page No. 15/25 presence. However, it is admitted that two members of raiding team were standing at the door when the witness entered alongwith the complainant.
39. The evidence through the testimony of PW7 is at variance with that of PW6, the complainant has testified . The quandary of the situation through the testimonies of PW6 and PW7 being at variance, makes it hard to believe as to whose testimony is more truthful. We have the complainant who has denied that the accused had demanded any amount from him towards the bribe, consequent to the complaint, yet has supported the case of the accused in regard to the hand wash by stating that after his GC notes had fallen on the table and the accused had assisted him in picking the same. Hence, the coloration of the hand wash being pink. The diverse testimony of the same event of the accused demanding the bribe amount and accepting the illegal gratification requires the evidence to come from other source to determine the culpability of the accused.
40. Ld. counsel states there is a reason that panch witness can prevaricate. Him being a public servant, could not support the accused as he would have to face the retribution of the department in his service.
41. Whether the Raid Officer Sunil Kumar can be believed to inculpate the accused as per the testimony of PW5 Raid Officer who has testified that at about 3.35 p.m., he went to the PAO Office of IGI Airport alongwith the raiding team and at about 3.45 p.m. he received the predetermined signal from the panch witness. When he reached the room, the panch witness informed that the accused State V/s Om Prakash Maan Page No. 16/25 had demanded and accepted Rs.1000/ from the complainant and had kept it in his shirt pocket. The panch witness had retrieved the same at the instance of the Raid Officer and thereafter, the hand wash and pocket wash were taken which tested positive. The case property and accused have been identified by the witness. The witness has admitted that he had not verified whether the accused was on leave on 24th of October, 2006 to 29th October, 2006 and he had joined the office on 30th of October, 2006.
42. The witness PW5 Inspector Sunil Kumar and PW6 Inspector Harvinder Singh, both have testified that shirt of the accused was taken in to possession which is Ex. PW5/D, but both the witnesses PW7 and Raid Officer PW5 have admitted that the pocket wash does not manifest any coloration signifying the presence of phenolphthalein. This may not be a conclusive test either way as a chemical analysis is only a corroborative evidence and not substantive piece of evidence.
43. What remains are two versions of ocular witnesses and in this regard the Hon'ble Supreme Court in (Kaliram Vs. State of H.P. 1973, (2) SCC, 808).has held:
"Leaving aside the cases of statutory presumptions, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. The Court may, of course, presume, as mentioned in Section 114 of the Indian Evidence Act, the State V/s Om Prakash Maan Page No. 17/25 existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The illustrations mentioned in that Section,though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of each case. The illustrations are merely examples of circumstances in which certain presumption may be made. Other presumptions of a similar kind in similar circumstances can be made under the provisions of the Section itself. Whether or not a presumption can be drawn under the Section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behaviour is so complex that room must be left for play in the joints. It is not possible to formulate a series of exact propositions and confine human behaviour within straitjackets. The raw material here is far too complex to be susceptible of precise and exact prepositions for exactness here is a fake.
Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases State V/s Om Prakash Maan Page No. 18/25 wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that is is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by report to surmises, conjectures of fanciful considerations. As mentioned by us recently in the case of State of Punjab vs. Jagir Singh, a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would State V/s Om Prakash Maan Page No. 19/25 have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
44. A support in favour of the accused also comes through PW8, Smt. Chanderlata Chakrovarty, Administrative Officer who has testified that while working as such she had given sanction for payment of Rs.30,000/ and for preparation of bill. The order to this effect is Ex.PW8/A which bears her signatures at point A. The witness further testified that the bill is passed by Chief Account Officer of the DDO and thereafter, it is sent to the Senior Accounts Officer and it is the bounding duty of the P&A Office to issue the cheque. Thereby signifying that the accused herein had no reason to withhold or could not withhold the amount .
45. Support has been sought by the accused for stating in his statement u/s 313 Cr.P.C. that as per the procedure first of all the bill is marked to Sr. Accountant and after the same, it is sent to AAO and finally PAO for preparation of cheque. The DDO official issues the cheque after taking receipt thereof. It is stated that the cheque was received on 28.10.2006 while the accused was absent from duty on 24th October to 29th October, 2006 and thereafter he joined the office on 30th October, 2006 when he learnt that Sh. B.R.Tripathi had raised some objection and after checking the same on computer, the accused had cleared it and it was the duty of one M.R.Yadav to prepare and issue the cheque to the State V/s Om Prakash Maan Page No. 20/25 department after checking the same. Even otherwise the accused has denied that there was any recovery of bribe amount from him.
46. Accused has examined defence witness to support his case and to negate the case of the prosecution witnesses through the testimony of Sh. C.B. Jatav, Sr. Accountant, P&AO(Commensurate of Customs, New Delhi) who has testified that allocation of the work is Ex.PW8/A while the bill status is Ex.PW1/B. It is testified by the witness that as per the rules on receipt of the bill from the DDO of the department the same is marked to Dealing Clerk for prechecking the bill and if the Bill is found according to the rules then Clerk passes the same is marked to Account Officer. Assistant Account Officer then checks the Bill and passes the same on computer after everything if found to be proper then it is transferred to PAO of the Customs. The PAO sends the same to cheque branch for preparation where the Senior Accountant prepares the same and thereafter sent to PAO office for signature of the cheque. The cheque is thereafter handed over to senior accountant who makes the relevant entry to be handed over to DDO or the cashier to be handed over the party. As per DW1/A the duty of the accused was to pre check the Bills which was cleared by him on 31 st of October 2006 and which was on 31.10.2006 was cleared and sent to Mawasi Ram Yadav for preparation of the cheque. It was not the duty of the accused to issue and hand over the cheque to the party.
47. Then aforesaid testimony of DW1 clearly indicates that accused has neither the power nor the authority to issue or withhold the cheque and hence would not have been in a position to demand any amount whatsoever. The State V/s Om Prakash Maan Page No. 21/25 question there arises is whether the defence witness can be relied upon to negate the case of the prosecution the answer would be in positive. The Supreme Court has oft held that the defence witness are required to be given equal status as that of the prosecution witness and can be relied upon to disapprove the case of the prosecution through preponderance of probability.
48. In State of Haryana v. Ram Singh, 2002(1) RCR (Criminal), it was held by Hon'ble High Court of Delhi that:
"Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one - the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution's witnesses in particular PW10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself - what more is expected of the defence case: a doubt or a certainty - jurisprudentially a doubt would be enough: when such a suggestion has been made prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence State V/s Om Prakash Maan Page No. 22/25 case only by reason thereof is far too strict and right a requirement for the defence to meet - it is prosecutor's duty to prove beyond all reasonable doubts and not the defence to prove its innocence - this itself is a circumstance, which cannot but be termed to be suspicious in nature."
49. In another case namely Anil Sharma and Ors. Vs. State of Jharkhand, 2004(3) RCR (Criminal), page 774, it was held by Hon'ble Supreme Court that:
"So far as the question as to whether equal treatment being given to evidence of prosecution and defence witnesses is concerned, there can be no quarrel with the proposition in law. In the present case, it is not that the Courts below glossed over the evidence of defence witnesses. IN fact detailed analysis has been made to conclude as to why no importance can be attached to their evidence. After carefully analysing the prosecution evidence evidence and that tendered by the accused, the trial Court recorded the conviction. The High Court in appeal made further detailed analysis of the evidence and came to hold that there was no infirmity in the conclusions of the trial Court. The conclusions are not shown to suffer from any infirmity whatsoever to warrant interference."
50. The evidence through PW6, even if it has to be determined as to which State V/s Om Prakash Maan Page No. 23/25 of portion of his testimonies rings of truthfulness. The complaint PW5/A is very much evident to be a case against the accused yet the same very witness when he steps in the witness box favours the accused and absolves him of any dereliction much as demand of bribe and the subsequent acceptance. Even the hand wash which was incriminating yet a reasonable and probable cause for the same has been given and as per the law as established the accused has negated the same through preponderance of probabilities. The statement U/s 313 Cr.P.C. has also narrated the entire sequence of preparation of the bill inasmuch as no cheque was recovered from his table and his duty was confined to prechecking the bill and not preparation of the cheque.
51. On the anvil of the law when the testimony of PW5 is not consistent, the law requires to extend benefit of doubt to the accused, notwithstanding the testimony of PW7 the panch witness who would seem to be an interested witness. Mere recovery of bribe amount, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe when the evidence produced, give diverse view. In this regard, the Hon'ble Supreme Court has held:
"that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted."
52. Consequently, the prosecution has failed to prove the case against the State V/s Om Prakash Maan Page No. 24/25 accused beyond the reasonable doubt and as such the accused is acquitted. His surety is discharged. File be consigned to Record Room.
Announced in the open court today on 28th day of November, 2011 (RAKESH SIDDHARTHA) SPECIAL JUDGE (PCACT)06 TIS HAZARI, DELHI State V/s Om Prakash Maan Page No. 25/25