Delhi District Court
State vs . Dinesh Kumar on 6 May, 2023
1
In the Court of Dig Vinay Singh, Special Judge, (PC Act) ACB-02,
Rouse Avenue Courts, Delhi.
In re:
CNR No. DLCT11-000395-2020
CC No. 89/2020
State Vs. Dinesh Kumar
FIR No. 06/2016
PS ACB
U/s 7 & Sec. 13(2) r/w 13(1)(d) of
the POC Act, 1988
State
Vs.
Dinesh Kumar
S/o Sh. Sohan Lal
R/o Vill - K-3/81-B,
Mohan Garden, New Delhi.
Date of institution : 14.12.2020
Date of arguments : 29.04.2023
Date of judgment : 06.05.2023
JUDGMENT
1. The above-named sole accused faced trial in the present matter for offence U/s 7 & Sec. 13(2) r/w 13(1)(d) of the POC Act, 1988, as were in force at the time of commission of offence of this case in April 2016, and prior to the amendment of the Sections in 2018.
2. Brief facts of the case are that on 21.04.2016 complainant Sunil Tomar visited Anti-Corruption Branch and made a complaint against the accused stating that the accused while working in the Office of Delhi Conservator of Forest (West), Birla Mandir Lane, New Delhi (O/o DCF for short) demanded bribe from the complainant for processing and expediting an application for felling of two trees at a construction site at 31, Shivaji Marg, Moti Nagar, Delhi. Complainant stated that he was into the business of executing landscaping work for one of his clients namely M/s Mirkana Engineering Pvt. Limited, which company owned the above-mentioned site. During landscaping, two trees on the plot were to be cut, for which an approval of the Forest Department was required. Accordingly, the Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 1 of 40 2 complainant brought the matter to the notice of M/s Mirkana Engineering Pvt. Ltd. and the company filed an application seeking permission for cutting the two trees. Complainant claims that he visited Office of Delhi Conservator of Forest for expediting the permission, where he met the accused and the accused demanded Rs. 2 Lakh bribe for the same. Upon negotiations, the accused brought down the demand to Rs. 1 Lakh, and an advance of Rs. 40,000/- was to be paid to the accused on 21.04.2016. The complainant had carried the said amount to Anti-Corruption Branch. On the currency notes taken by the complainant, 'phenolphthalein powder' was applied and after giving demonstration of the quality of the said powder the complainant and the Panch witness Parvinder Singh were taken along with the raiding team to the spot where bribe was to be paid to the accused. Numbers of the currency notes were noted down in the raid report. At the spot, a trap was laid and, as per the case of investigating agency, at about 3.20 PM on that day at the O/o DCF, the accused allegedly demanded and accepted Rs. 40,000/- from the complainant in presence of the Panch witness. The accused accepted the bribe amount from his right hand and kept the same in his right-side pocket of pants. The notes were recovered by the Panch witness from the possession of accused on the directions of the raid officer. Hand wash and pants pocket wash of accused in Sodium Carbonate solution turned pink. The hand wash and pant pocket wash were then kept in bottles, were duly sealed, and were sent to the FSL for examination. FSL result dated 29.06.2016 gave a positive result for the presence of 'phenolphthalein' and 'Sodium Carbonate'. On completion of investigation, Sanction U/s 19 of the POC Act was obtained against the accused and he was charge sheeted.
3. Accordingly, charge U/s 7 & Sec. 13(2) r/w 13(1)(d) of the POC Act, 1988 was framed against the accused, to which the accused pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined total 17 witnesses.
Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 2 of 40 34.1. Out of the 17 witnesses examined by the prosecution, the complainant Sunil Tomar is examined as PW10; Panch witness Parvinder Singh is examined as PW11; raid officer Inspector Manoj Kumar Aggarwal is examined as PW16 and; the first IO the then Inspector Jata Shankar Mishra is examined as PW17. Rest of the witnesses are more or less are formal in nature.
4.2. From amongst the formal witnesses;
4.3. PW1 HC Verghese carried case property from the Malkhana to FSL, Rohini on 26.04.2016 and deposited it in FSL.
4.4. PW2 Santosh Tripathi, the senior scientific officer (Chemistry), examined the contents of right hand wash and pocket wash of accused contained in two different bottles RHW-1 and RPW-1, respectively, and found presence of Phenolphthalein and Sodium Carbonate in the solution, vide his report dated 29.06.2016 Ex. PW2/A. 4.5. PW3 HC Leela Ram, the duty officer in PS ACB on the date of raid, proved registration of FIR Ex.PW3/A; endorsement on rukka Ex.PW3/B; DD no. 20 regarding commencement of registration of FIR Ex.PW3/C; DD no. 24 Ex.PW3/D; as well as DD no. 14 lodged qua departure of the raiding team Ex.PW3/E. It may be mentioned here that in the testimony of PW3 it is mentioned that DD no. 24 was registered regarding conclusion of the FIR, whereas DD no. 24 was regarding arrival of the raiding team back to PS ACB at 11.45 PM after apprehension of the accused. The DD number regarding conclusion of FIR is actually DD no. 23. The DD entry regarding arrival of Raid Officer Inspector Manoj from the raid spot is lodged at 9.30 PM is Ex.PW3/D3.
4.6. PW4 ASI Vinay Pal Singh, the Malkhana Moharrar proved the entries in the Malkhana register no. 19 regarding deposition of the case property on 21.04.2016 as Ex.PW4/A; sending of the case property to the FSL on 26.04.2016 through a road certificate and; acknowledgment received from FSL as Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 3 of 40 4 Ex.PW4/B, C & D; receipt of the FSL result and the remnants of the case property on 06.04.2017 vide Ex.PW4/E. 4.7. PW5 Bheem Dutt, a colleague of the accused who was working as Deputy Range Officer in the O/o DCF, deposed that the accused was though posted as a labour, but he was working as his Assistant in the office and that on 12.04.2016 both of them conducted inspection of the site where the two trees were standing and thereafter the accused prepared note dated 12.04.2016 Ex.PW5/A in his own hand writing duly signed by the accused at Point A and the signature of this witness at Point B. The witness also proved another note prepared by the accused on 21.04.2016, i.e. on the date of raid, as Ex.PW5/B, which is also in the hand writing of the accused and which bears signature of accused at Point A. 4.8. PW6 Dr. A. S. Jaychandran simply forwarded the Sanction Order issued by the competent authority PW9 to the investigating agency vide a forwarding letter Ex.PW6/A. 4.9. PW7 Abhijit Chakraborty deposed that M/s Mirkana Engineering Private Ltd.
(Mirkana for short) was a sister concern of M/s BAS Engineering Private Ltd. and that he was working as Head HR (Administration) in M/s BAS. At construction site of Mirkana at Property no. 31, Shivaji Marg, Moti Nagar, Delhi, two trees were required to be cut for construction and accordingly he had applied for permission for felling of those trees in the O/o DCF. A fee of Rs. 1,14,000/- was also deposited and PW10 Sunil Tomar was authorised to pursue that application in the O/o DCF vide authorisation letter Ex.PW7/A issued by this witness. The application seeking permission to fell trees; the indemnity bond; Form B and; affidavit of this witness, are proved as Ex.PW7/B to E, and the receipt regarding deposition of fees is proved as Ex.PW7/F. The application for permission to cut trees Ex.PW7/B was received in the O/o DCF on 28.03.2016 as per stamp of the O/o DCF, along with the annexures. PW7 also deposed that during investigation he gave a communication dated 30.10.2017 to the IO under Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 4 of 40 5 his signature which is proved as Ex.PW7/G. In Ex.PW7/G, it is mentioned that Mirkana entrusted the construction work of the site to one M/s RRA Projects and M/s RRA Projects entrusted the landscaping work / tree cutting to PW10 Sunil Tomar. PW7 also deposed that vide Ex.PW7/H he had replied to various queries of the IO. Even Ex.PW7/H is dated 30th of October, but year is not mentioned in this document. In reply to question no. 6 of the IO, in which the IO asked PW7 whether PW7 knew Sunil or had met him, PW7 had replied that he never met Sunil in official or personal capacity.
4.10. PW8 Mr. Gopinath was the DCF concerned at the relevant time. He deposed that the accused though was a labour in the Forest Department, but he was deputed to assist PW5 Bheem Dutt and the accused along with PW5 used to survey the site for permission to cut trees and to attend to the complaints of cutting of trees. On 21.04.2016 the witness was not in his office at the time of raid. During investigation on 29.04.2016, this witness provided posting order of the accused Ex.PW8/B; details of duty assigned to the accused Ex.PW8/C; certified copy of attendance of accused qua the date of raid Ex.PW8/D; bio-data of accused Ex.PW8/E along with the mobile number Ex.PW8/F as also month wise permission to fell trees for the year 2015-16 in West Forest Division Ex.PW8/G. Subsequently, on 30.05.2016 the witness supplied the original relevant file qua permission to cut the two trees in question which includes the application, the note sheets and the permission, as Ex.PW8/I. From that file, the witness identified the note sheets Ex.PW5/A & B prepared by the accused and bearing signatures of the accused. The witness also identified his own signatures on those two note sheets and specifically deposed that both those note sheets were in the hand writing of accused.
4.11. PW9 Ishwar Singh the Principal Chief Conservator of Forests proved Sanction U/s 19 of the POC Act, against the accused, accorded on 22.07.2019 as Ex.PW9/A. Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 5 of 40 6 4.12. PW12 HC Vijender Singh brought FSL result and remnants of the case property from FSL, Rohini, Delhi on 16.04.2017 and handed over the FSL result to the IO, and deposited the case property in the Malkhana of PS Civil Lines.
4.13. PW13 Inspector Rohitash conducted house search of the accused after the raid on 21.04.2016 vide search memo Ex.PW13/A and deposed that he along with a Panch witness Jugal Kishore, Inspector Hemant Mishra, W/ASI Manju and other police officials conducted the search in which some property documents were found qua which separate inquiry as to disproportionate assets was undertaken, but nothing incriminating was found so far as the present case is concerned.
4.14. PW14 Inspector Rajesh Shah further IO of the case sought Sanction from the competent authority U/s 19 of the POC Act and on receipt of the Sanction Ex.PW9/A filed the charge sheet of the present case. No other investigation was done by this witness.
4.15. PW15 Inspector K. C. Kaushik was also part investigating officer of the case who got collected the FSL result on 06.04.2017; examined Abhijit Chakraborty (PW7) on 30.10.2017; collected documents from the O/o DCF as to appointment letter of accused, receipt of Rs. 1, 14,000/-, order dated 31.01.2017 etc. 4.16. The testimonies of PW10 Sunil Tomar (Complainant); PW11 Parvinder Singh (Panch Witness); PW16 Inspector Manoj Aggarwal (Raid Officer) and the then Inspector Jata Shankar (PW7) (First IO) shall be discussed hereinafter to avoid repetition. Suffice it to say that all the four witnesses supported the case of prosecution completely.
5. On completion of prosecution evidence, all the incriminating evidence was put to the accused in his statement U/s 313 Cr.P.C, to which the accused generally denied the evidence and claimed that he has been falsely implicated. The accused claimed that the complaint of PW10 was motivated as the complainant had a grudge against him as he used to object to visit of the complainant to the O/o Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 6 of 40 7 DCF because the complainant was a tout and his frequent visits of the complainant to the O/o DCF was bringing bad name to the office and also that the complainant had warned the accused that he would not spare the accused. Accused denied that he demanded or accepted bribe from the complainant on any date or on the date of raid and claimed that the investigating agency implicated him at the behest of the complainant; all the proceedings were manipulated and done in the office of ACB; the documents were falsely created later on; the prosecution witnesses were tutored; Ex.PW5/A & B were prepared on the dictation of PW5; Ex. PW7/A to F were created later on to implicate the accused; the complainant was never authorised by Mirkana to pursue the matter with DCF; being a labourer the accused was not competent to grant or refuse the permission to fell of trees or to conduct the survey of site; the Sanction was granted mechanically and without appreciating facts & material; even the FSL result was got manipulated; all the facts & circumstances were not put up before the Sanctioning authority and the Sanction is manipulated; he never demanded or obtained any gratification from anyone and; that it was a false case. The witnesses of the prosecution are claimed to be false & interested witnesses. The accused opted to lead evidence in his defence and examined one Mr. Shankar as DW1 in his favour.
6. DW1 Mr. Shankar is a colleague of the accused. He deposed that PW10 Sunil used to visit the O/o DCF at Birla Mandir and he saw the accused and Sunil talking to each other near the gate and they were arguing about the cutting of trees. DW1 also deposed that during that conversation Sunil threatened the accused to give permission otherwise Sunil would see him. DW1 also claimed that he had seen such arguments between them on two or three occasions, but he did not know any of the dates on which he saw the accused and the complainant arguing as such. DW1 also deposed that from the gate of compound of Forest Office, the place where the accused Dinesh sits was about 250-300 meters and Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 7 of 40 8 from the gate till the office of accused, the passage was a kachhha road with trees on both the sides. One cannot see the temporary structure inside which room of accused was located from the gate of the compound. Also, the passage leading from the gate to the structure was not a straight road and it had two turns. He also deposed that the room of the accused contained two tables and two chairs. The witness also exhibited a video made by the witness on his mobile phone qua the passage from the gate till the structure and the room of accused, which is proved as Ex.DW1/A contained in the mobile phone M1 in which it was recorded.
7. I have heard Ld. Prosecutor for the State and Ld. Counsel for the accused.
8. Before appreciating evidence and the contentions of both the sides in this case, let it be mentioned that even in the case of Neeraj Dutta Vs. State (GNCT of Delhi) 2022 SCC OnLine SC 1724, Constitutional Bench of Hon'ble Supreme Court held as follows;
"74. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact.
This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 8 of 40 9 the public servant respectively have to be proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature." 8.1. It is laid down in the said judgment that proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is sine quo non in order to establish the guilt of accused public servant U/s 7 & 13(1)(d)(i) & (ii) of the PC Act, 1988. In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact, which can be proved by direct oral evidence or direct documentary evidence, or in absence thereof through circumstantial evidence. It is also held by the Hon'ble Supreme Court that the presumption of fact with regard to the demand or acceptance or obtainment of an illegal gratification may be made by the Court by way of inference only when Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 9 of 40 10 the foundational facts have been proved by oral and documentary evidence and not in absence thereof. It was also held that the presumption in law U/s 20 of the Act is distinct from presumption of fact. The presumption is subject to rebuttal by the accused. Sec. 20 does not apply to Sec. 13(1)(d)(i) & (ii) and it applies only to Sec. 7 of the PC Act.
8.2. After settling of the legal position by the Constitution Bench, another bench of Hon'ble Supreme Court while disposing off the appeal in that very case of Neeraj Dutta Vs. State (GNCT of Delhi) 2023 SCC OnLine SC 280, held as follows;
"9.......................................The demand for gratification and the acceptance thereof are sine qua non for the offence punishable under Section 7 of the PC Act.
10. xxxxxxxxxxxxx
11. Even the issue of presumption under Section 20 of the PC Act has been answered by the Constitution Bench by holding that only on proof of the facts in issue, Section 20 mandates the Court to raise a presumption that illegal gratification was for the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment of 2018). In fact, the Constitution Bench has approved two decisions by the benches of three Hon'ble Judges in the cases of B. Jayaraj1 and P. Satyanarayana Murthy 2. There is another decision of a three Judges' bench in the case of N. Vijayakumar v. State of Tamil Nadu5, which follows the view taken in the cases of B. Jayaraj 1 and P. Satyanarayana Murthy2. In paragraph 9 of the decision in the case of B. Jayaraj1, this Court has dealt with the presumption under Section 20 of the PC Act. In paragraph 9, this Court held thus:
"9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent." (emphasis added) The presumption under Section 20 can be invoked only when the two basic facts required to be proved under Section 7, are proved. The said two basic facts are 'demand' and 'acceptance' of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification shall be presumed to be for a motive or reward, as contemplated by Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 10 of 40 11 accused can rebut the presumption.
12. In the case of N. Vijayakumar5, another bench of three Hon'ble Judges dealt with the issue of presumption under Section 20 and the degree of proof required to establish the offences punishable under Section 7 and clauses (i) and (ii) Section 13(1)(d) read with Section 13(2) of PC Act. In paragraph 26, the bench held thus:
"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779: (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B.Jayaraj v. State of A.P., (2014) 13 SCC 55:
(2014) 5 SCC (Cri) 543] In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court." (emphasis added) Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt.
13. Section 7, as existed prior to 26th July 2018, was different from the present Section
7. The unamended Section 7 which is applicable in the present case, specifically refers to "any gratification". The substituted Section 7 does not use the word "gratification", but it uses a wider term "undue advantage". When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 provided the basic allegations of the demand and acceptance are proved. In this case, we are also concerned with the offence punishable under clauses (i) and (ii) Section 13(1)(d) which is punishable under Section 13(2) of the PC Act. Clause (d) of subsection (1) of Section 13, which existed on the statute book prior to the amendment of 26th July 2018, has been quoted earlier. On a plain reading of clauses (i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of illegal gratification will be necessary to prove the offences under clauses
(i) and (ii) of Section 13(1)(d). In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence.
14. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 11 of 40 12 demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand."
9. In the light of the said judgments, let the evidence of the present case be appreciated for the limited purpose as to whether the prosecution succeeds in proving demand of illegal gratification by the accused, its acceptance, and obtainment. Here, let the testimonies of PW10 (complainant Sunil Tomar), PW11(Panch witness Parvinder Singh), PW16 (raid officer Inspector Manoj Kumar Aggarwal) & PW17 (first IO, the then Inspector Jata Shankar Mishra), be summarily discussed.
9.1. PW10 Sunil Tomar, the complainant, deposed that sometime in March, 2016 he got a contract from Mirkana for landscaping which required cutting of two trees at the site. The application seeking permission for cutting of trees was given by PW7 Abhijit Chakraborty and, PW10 was authorised to pursue the said application given in the Forest Department. Accordingly, PW10 went and delivered the application in the O/o DCF along with necessary documents on 28.03.2016. Thereafter, on 12.04.2016 PW10 went and met the accused who was looking after the work of 'Tree Cell' in the O/o DCF. At that time, accused demanded a sum of Rs. 2 Lakhs for permission, and on request of PW10 he reduced the demand to Rs. 1 Lakh. PW10 thereafter gave written complaint Ex.PW10/A in PS ACB on 21.04.2016 and he had also carried Rs. 40,000/- bribe money to ACB.
9.2. It is deposed by PW10 Sunil, PW11 Parvinder and PW16 Inspector Manoj that on this complaint, Panch witness PW11 was joined and thereafter demonstration of properties of Phenolphthalein was given to the Panch witness Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 12 of 40 13 and the complainant after applying the powder on the currency notes brought by PW10. Thereafter a raiding team was constituted which included the three of them as well as PW17 Inspector Jata Shankar who was to take over the investigation if the raid succeeded, besides some other policemen.
9.3. It is deposed by PW10, 11, 16 & 17 that the raiding team left PS ACB in two vehicles i.e. one Maruti Gypsy and one Maruti Van. One of the vehicles in which PW17 was there was left near Talkatora, and PW10, 11, 16 and few other policemen proceeded ahead in a Maruti Van and went inside the Forest Division Office Compound. There PW10 & 11 were instructed again that the bribe money should be given by the complainant only upon demand; that the complainant and panch witness should remain together and; that upon completion of the bribe transaction, pre-determined signal would be given by the Panch witness to PW16 who had taken position to raid the office upon receipt of the signal.
9.4. PW10 & 11 deposed that they went inside the O/o DCF where the accused was present in his room. Upon the complainant and Panch witness entering the room of the accused, the accused asked the complainant whether the complainant has come prepared (indicating whether he has brought the bribe amount) and when the complainant affirmed it, the accused took out permission for cutting of trees and left his room stating that he would get endorsed the office dispatch number from the Dispatch Desk on the letter / permission. After some time, the accused returned with the endorsement on the permission and then he asked the complainant to pay the bribe amount. Upon it, complainant handed over the treated currency notes of Rs. 40,000/- to the accused, which the accused accepted with his right hand and kept inside right side pocket of his trouser. Thereafter, the accused asked as to how much amount it was? Upon which PW10 told the accused that he could withdraw only that much amount from ATM and that he would pay the remaining amount later on. The accused handed over the permission letter to the complainant and thereafter PW11 gave pre-determined Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 13 of 40 14 signal to PW16 the raid officer (RO).
9.5. It is deposed by PW10, 11 & 16 that thereafter PW16 along with few other policemen, entered the room of accused and PW16 asked the Panch witness to recover the bribe amount from the possession of accused after PW16 was briefed about the incident. Panch witness then took out the bribe amount from the pocket of accused and handed it over to PW16. These were the same currency notes, number of which were noted in the pre-raid report. Thereafter, right hand wash and wash of pocket of trouser of accused was undertaken separately in colourless sodium carbonate solution which turned pink. Those solutions were separately kept in two-two bottles each qua the right hand and the pocket wash of the accused which were labelled as RHW-1 & 2 and RPW-1 & 2 and the bottles were sealed with the seal of PW16 having seal impression MKA. The wash solution, the currency notes and the trouser of the accused were taken into possession vide seizure memos Ex.PW10/B & C. PW16 then prepared raid report and rukka and through ASI Lal Bahadur, the rukka was sent to PS ACB for registration of FIR.
9.6. PW17 was then called at the spot from the place where he was waiting and the case property, documents and the custody of accused were handed over to PW17 by PW16 and then PW16 left the spot. PW17 then interrogated the accused and returned to PS ACB with the witnesses and the accused, case property and documents and in PS ACB the accused was formally arrested. PW17 also seized a copy of the permission to cut trees, which had been handed over by the accused to PW10 before his apprehension, vide seizure memo Ex.PW10/F as also certain other documents.
10. It is argued on behalf of the accused that PW10 is an unreliable witness as PW10 was a tout who threatened the accused on more than one occasion to teach him a lesson and then falsely got him implicated. In this regard, Counsel for accused relies upon the testimony of PW5 and DW1.
Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 14 of 40 1510.1. In the cross examination, PW5 claimed that a person who used to come to the O/o DCF to follow the application for cutting of trees had twice threatened the accused in the office by stating "agar mera kaam nahi karega, to mein dekh lunga". PW5 claimed that he does not remember the name of that person and he could not recollect the name of that person was Sunil Tomar even after being so suggested by the Counsel for accused. PW5 claimed that the said person who threatened the accused had come to office even two days prior to 12.04.2016.
10.2. Similarly, DW1 Shankar, a colleague of the accused, also deposed that he had seen the accused and PW10 arguing with each other on two or three occasions in the O/o DCF in which PW10 had threatened the accused to give permission to cut trees otherwise he would see the accused.
10.3. Neither from the testimony of PW5, nor from the testimony of DW1 it is convincingly proved that PW10 ever threatened the accused as claimed by the accused. In his cross examination, DW1 admitted that he came to know PW10 only on the date of raid and not prior to it. He never spoke to PW10. He did not remember the date when he saw PW10 and accused arguing with each other and even after arguments he did not ask the accused as to what the matter was. Admittedly, the room of DW1 and the room of accused in the O/o DCF were separate and they used to sit in their separate rooms which was also at a distance of 25 feet as per DW1 himself. Neither DW1, nor PW5 ever complained or gave any kind of representation to their own seniors in the O/o DCF. Even the accused did not do so. They also never informed the investigating agency at any stage of matter that PW10 had ever threatened the accused. PW10 specifically denied the suggestions of the accused that there was exchange of hot words between him and the accused or for that reason PW10 had any grudge.
10.4. PW8, the DCF, who was the senior most officer in the office, deposed that it never came to his notice that PW10 or anybody else ever raised any commotion or hue & cry in his office about the application in question and he never heard Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 15 of 40 16 that anybody ever threatened the accused regarding the application. PW8 specifically deposed that he never heard in his office that anybody ever threatened the accused regarding permission to cut trees pertaining in this case. Once the accused claims that PW10 had grudge for any particular reason against him, the onus was on the accused to have proved the same. The accused failed to discharge that particular onus.
11. It is also argued on behalf of the accused that PW10 was not authorised by M/s Mirkana to pursue the application seeking permission to cut trees and that Ex.PW7/A cannot be relied as it does not bear any date. It is also argued that Ex.PW7/A does not bear the stamp of Mirkana, though it is on a letter head of Mirkana; there is no authority proved in favour of Abhijit Chakraborty (PW7) who signed this document from the company, either in the form of Minutes of the Board's Meeting or any other document; in Ex.PW7/H recorded on 30.10.2017 PW7 had replied in answer to question no. 6 put to him by the investigating officer that he did not know PW10 and he had never met him in any capacity and that no written agreement between M/s RRA Projects and PW10 has been proved under which PW10 could claim that he was duly authorised to pursue the application.
11.1. None of these arguments help the case of accused. Ex.PW10/F, i.e. seizure memo dated 21.04.2016, which was prepared after the raid by PW17 mentions that from PW10 the authority letter in favour of PW10 executed by PW7 was seized in original. It is so mentioned at Serial no. 3 in the seizure memo. The seizure memo is witnessed not only by PW10 but also by the Panch witness PW11. PW11 is an independent witness. It is not the case of accused that on this seizure memo signature of PW11 were obtained on any subsequent date after 21.04.2016. Even otherwise, PW11 had no reason to falsely sign this document at any later date. This document clearly proves that Ex.PW7/A was seized on the date of raid itself after the raid. Even though Ex.PW7/A does not bear any date and does not bear Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 16 of 40 17 stamp of the company, but on that ground alone the document cannot be suspected. Particularly when PW7 in his own communication dated 30.10.2017 Ex.PW7/G specifically mentioned that he had signed various documents in favour of PW10 to undertake the tree cutting permission. Although, in this communication Ex.PW7/G, it is mentioned that the construction work at the site was awarded to M/s RRA Projects and M/s RRA Projects assigned the work of landscaping to PW10 and there was no written agreement between M/s RRA Projects and PW10 qua assigning of the landscaping work, but the said facts are inconsequential for the present case.
11.2. Even if it is assumed for the sake of arguments that PW10 was not a duly authorised person by Mirkana or by M/s RRA Projects to pursue the application for tree cutting, it is the accused's own case that it was PW10 who used to come to him for pursuing that application and therefore allegedly some arguments took place between him and PW10. As mentioned above, no such argument or reason for grudge is proved by the accused.
11.3. If PW10 was not an authorised person to pursue the application in question, why did the accused take out the permission Ex.PW17/B and went to obtain endorsement / dispatch number on the same at the time of raid. Besides PW10, an independent Panch witness PW11 specifically deposed that when both of them entered the office of accused on 21.04.2016, the accused first asked as to whether the complainant was ready and when the complainant affirmed that he had brought the bribe amount, the accused took out the permission Ex.PW17/B and went to get endorsement number written on it and then he brought the same and handed it over to PW10. If PW10 was not authorised, why did the accused hand over the permission to PW10 at that time, is a question to which the accused has no answer. It is not the case of accused that he did not hand over the permission to PW10 on 21.04.2016. Besides PW10 & 11, who proved that the permission was handed over by the accused to PW10, even PW17 proved that Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 17 of 40 18 the said permission was available with PW10 and a copy of it was seized from PW10 under the seizure memo Ex.PW10/F. 11.4. PW7 specifically deposed that he had authorised PW10 to pursue the application seeking permission to cut trees with the O/o DCF and he gave authorisation letter Ex.PW7/A to PW10. He also specifically denied that he executed this document on the behest of IO. Thus, even if this document does not bear any date, the genuineness of the document cannot be suspected. Once PW7 Abhijit deposed that he authorised PW10 to pursue the application in question and the fact that the accused was processing the application vide note Ex.PW5/A, which was on application of Abhijit, it is inconsequential that Ex.PW7/A was undated or it does not bear the stamp of M/s Mirkana or that there was no authorization by the company in favour of Abhijit to authorise PW10 to pursue the application.
11.5. It is thus inconsequential whether PW10 was duly authorised to pursue the application or he without being duly authorised was pursuing the application with the O/o DCF. The main question in the present matter is whether for handing over such permission, the accused demanded and accepted the bribe amount.
11.6. For the same reason, it is also immaterial that PW7 had claimed in Ex.PW7/H that he did not know PW10 and he did not meet PW10. In Ex.PW7/G & H, dichotomy is claimed by the accused arguing that in Ex.PW7/G it is mentioned that PW7 executed various documents in favour of PW10, whereas in Ex.PW7/H he claimed that he did not know and meet PW10. But actually, there is no such dichotomy in those two documents executed by PW7. Knowing a person personally and meeting a person as such is entirely different from executing documents in favour of a person. Although, PW10 in his deposition claimed that he had told PW7 about demand of bribe by the accused between 12.04.2016 to 21.04.2016, whereas PW7 claimed in Ex.PW7/H that he never met PW10, but even that inconsistency is inconsequential in the present matter for the above Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 18 of 40 19 mentioned reasons.
11.7. PW10 clarified that contract with M/s Mirkana was to be executed between him and Mirkana after execution of cutting of trees, but in this case no such contract could be executed as M/s Mirkana subsequently backed out when this incident was published and therefore the argument of accused that no such contract between PW10 and Mirkana is proved, therefore PW10 must be disbelieved, is fallacious.
12. Veracity of PW10 is also sought to be challenged on the ground that there are contradictions in his testimony on some crucial aspects of the matter.
12.1. It is argued that PW10 claims that he was working for landscaping for last about 25 years and that he claimed to have received the contract for cutting of trees for a total amount of Rs. 50,000/- out of which he had received Rs. 25,000/- only, yet he agreed to pay Rs. 1 Lakh bribe, which is not possible. There is no force in this argument also, since PW10 may have told the accused that he would pay Rs. 1 Lakh, but he actually may not have intended to pay it and therefore he went and gave complaint Ex.PW10/A. 12.2. It is also argued that PW10 at one place claimed that he was outside the room of DCF when the wash proceedings qua hand wash and pocket wash of the trouser of accused was undertaken. Upon a Court Question PW10 clarified that the hand wash and pocket wash were taken in his presence and he came out of the room of DCF when the accused was to change his trouser with a payjama, and PW10 also explained that he signed the seizure memos at the DCF office.
12.3. Though at one place PW10 claimed that he had signed the bottle containing hand wash solution qua the demonstration given before the trap was laid, but that seems to be nothing more than inability of PW10 to recollect entire facts and therefore no undue importance can be attached to such a stray answer of a witness.
Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 19 of 40 2012.4. Veracity of PW10 cannot be doubted merely because he did not furnish the proof of withdrawal of Rs. 40,000/- amount to the investigating agency, as claimed by the accused. The investigating officer seems to have not made any effort to collect the same and therefore PW10 cannot be found fault with on that account. Merely because PW10 did not reflect the receipt of cash amount of Rs. 25,000/- from Mirkana in his accounts book and according to the accused it is unbelievable that a company gave cash amount to the complainant, is also no ground to doubt the actual bribe transaction of this case.
12.5. The argument of accused that when as per PW10 the amount agreed was Rs. 1 Lakh, then why PW10 carried only a sum of Rs. 40,000/- and as to why RO did not question PW10 before the raid as to whether the accused had agreed for that lesser amount and whether there was any date, time and place fixed for exchange of the bribe amount, is also without any force. As mentioned above, when part payment of Rs. 40,000/- was made the accused asked PW10 in presence of the Panch witness PW11 as to when the remaining amount would be given and PW10 replied that he could withdraw only that much amount from ATM and that he would give the balance in few days. It is not a case where PW10 took Rs. 1 Lakh, despite having received only Rs. 25,000/- from Mirkana out of the agreed amount of Rs. 50,000/- for cutting of trees. It may well be a case that when PW10 told PW7 about the demand of Rs. 1 Lakh and when PW7 told PW10 to manage the same within the amount promised to him, PW10 decided to give complaint instead of paying the bribe.
12.6. The argument of accused that it is not mentioned in the complaint as to whether the accused agreed to accept the bribe amount in installment or he agreed to accept the first installment of the bribe amount on 21.04.2016 or the time at which he agreed to accept that amount, is immaterial. Once it is proved that the complainant and the Panch witness went to the office of accused and then upon demand gave bribe amount, it becomes inconsequential whether the accused had Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 20 of 40 21 earlier agreed upon any particular date and time to receive the bribe. In a case, it may well be possible that an accused asks the bribe giver to arrange the money and give the bribe on any working day or at any other place without particularly agreeing to any particular date and time. The fact that the accused asked PW10 after obtaining the bribe amount as to how much amount it was, indicates that PW10 without asking the accused to pay part amount and without obtaining the consent of accused, went and gave part amount.
13. Veracity of the prosecution's case is also sought to be challenged on the ground that PW10 deposed that when he along with the Panch witness entered the room of accused, the accused asked PW10 "tayyar ho kay aaye ho?", upon which PW10 told the accused "bilkul sir, tayyar ho kay aaya hoon" and thereafter the accused extended his right hand towards PW10 and uttered "lao" and thereafter the bribe money was paid and subsequently the accused took out the permission and went for getting endorsed the number. It is argued, that on the other hand PW11 deposed that first the endorsement was got done and then the bribe was demanded, which was also the initial case of the prosecution.
13.1. Though, the Ld. Prosecutor did not question PW10 on this aspect of the matter in his cross-examination of PW10, even though the case of Prosecution was that initially the endorsement was got done and then the bribe was exchanged, but in the cross examination by the accused, PW10 himself clarified that initially the accused got endorsed the diary number on the permission and then he gave the bribe amount to the accused after the accused demanded it.
13.2. Accused also argued that there is difference in the testimonies of PW10 and PW11 interse and also with their previous statements given to the police as to what exactly the accused had uttered at the time of bribe transaction and therefore also the testimonies of PW10 & PW11 should be disbelieved.
13.3. PW10 deposed that the accused had asked PW10 prior to exchange of bribe "tayyar ho kay aaye ho?" and that PW10 told the accused "bilkul sir, tayyar ho Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 21 of 40 22 kay aaya hoon". On the other hand, PW11 deposed that the accused asked "mera kaam ho gaya?" and the accused replied "hanji ho gaya kaam aapka". Whereas the statements U/s 161 Cr.P.C of these two witnesses records that the accused had asked PW10 "saman laye ho", upon which the accused had replied "haan laya hoon".
13.4. Though, PW11 in his examination in chief deposed that when he reached the room of accused along with PW10, PW10 had asked the accused "mera kaam ho gaya", upon which the accused replied "haanji, ho gaya kaam appka" and thereafter the accused went for endorsement and brought it after few minutes and then the bribe transaction took place. But PW11 in the cross-examination by the Ld. Prosecutor clarified that the exact words used at the time of bribe transaction were that the accused asked PW10 "samaan laye ho", upon which PW10 replied "haan laya hoon". Similarly, PW11 also clarified that after the accused got the dispatch number endorsed on the permission, he demanded bribe from PW10 by saying 'haan lao' and thereafter PW10 gave the bribe amount to the accused.
13.5. Not much can be read into those variations. The incident occurred on 21.04.2016 whereas PW10 was examined in November 2021 and PW11 was examined in March 2022, i.e. a good more than five years after the incident, and therefore those variations in recollecting and reproducing exact words spoken to by the accused cannot be given any undue weightage. The Court has to broadly see whether the accused had demanded bribe and accepted the bribe amount.
13.6. Merely because at one place PW11 claimed that hand wash of both the hands of the accused were taken at the spot, the entire testimony of PW11, PW10 and PW16 cannot be discarded, particularly when witnesses are examined in the Court after long time of the incident and when in such circumstances these small aberrations are bound to occur. PW11 himself admitted that because of lapse of time, he was unable to recollect exact details.
13.7. Similarly, the argument of accused that why did PW11 search entire body of the Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 22 of 40 23 accused when PW11 claims to have seen the accused keeping the bribe amount in his pocket of trouser, is immaterial. May be on the directions of PW16, the entire body of the accused was searched in order to see if there was anything incriminating in the possession of accused.
13.8. The argument of accused that as per PW10 when the accused took extreme precaution to speak to PW10 in absence of any other person and every time the accused used to come out of his office to talk to PW10, why would the accused allow presence of PW11 at the time of actual transaction of bribe, has to be rejected for the reason that PW10 stated that he told the accused that 'the party' was also along with him at that time. The fact that earlier also the accused was given bribe by PW10 could have rather acted as an assurance in the mind of accused that PW10 would not try to trap him. That fact explains as to why the accused allowed presence of PW11 at the time of trap.
13.9. The Panch witness PW11 and the first IO PW17, categorically deposed that the vehicle in which PW10, PW11 and PW16 went to the O/o DCF was parked inside the compound of the O/o DCF. Though, PW16 deposed that the vehicle was parked at the gate of compound, but he specifically deposed that he followed PW10 & 11 inside the office compound, but remained outside the office and he saw PW11 coming out of the building and then PW11 gave the signal and that he was able to see PW11. Though, PW16 also at one place claimed that from the gate of the compound, the structure in which room of the accused was located, was visible, whereas the defence witness claimed that it was not visible from the gate, but merely on that ground the story of the Prosecution cannot be doubted. It is one thing in claiming that the structure was visible from the gate and it is another thing whether it was clearly visible. It may well be possible that the structure was visible through the gaps in the woods. Therefore, merely on the ground as to where exactly PW16 was standing from where he could see the signal of PW11, the entire story of the Prosecution cannot be doubted.
Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 23 of 40 2414. Similarly, the minor contradictions in the testimonies of PW10, PW11, PW16 & PW17 as to the exact place where the first car was left; the exact place where the van was parked; the exact time of departure and arrival; the exact sequence of events and minute details; the exact sequence of preparation of documents; the exact place of preparation of the documents and sequence of signatures appended thereon; whether the accused himself gave the bribe amount after taking it out from his pocket or whether PW11 took it out; what proceedings were undertaken upon return to PS ACB and what documents were prepared prior to it; from where substitute payjama was arranged for the accused; whether the accused was arrested and his personal search was taken formally at the O/o DCF or at PS ACB; what proceedings were conducted upon return to PS ACB; where did PW10 & PW11 sign the arrest memo and personal search memo of the accused; whether it was PW10 who actually submitted the application Ex.PW7/B in the O/o DCF or the application was submitted by PW7; whether PW10 remained inside the room of DCF when the proceedings were conducted or outside the room; where exactly he signed the documents, are all trivial contradictions which are bound to occur when the witnesses are examined in the Court after several years of the incident. They are all trivial and inconsequential contradictions which do not affect the merits of the case. Those trivial contradictions do not affect the basic case of the Prosecution and does not create any doubt about the basic case of the prosecution and thus those contradictions have to be ignored.
14.1. In the cases of Appabhai and Anr. Vs. State of Gujarat 1988 Supp SCC 241, Hon'ble Supreme Court has emphasized that while appreciating the evidence, the Court should not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. Similarly, the discrepancies which are due to normal errors of perception or observation should not be given importance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 24 of 40 25 the entire material on record as a whole and should not disbelieve the evidence of a witness altogether, if it is otherwise trustworthy.
15. The answers given by PW10 that he was undertaking the work of obtaining permission to cut trees much prior to the present incident and earlier also he had been regularly visiting Forest Department and particularly earlier also he had paid bribe to the present accused cannot be a reason to doubt his testimony in the present case. Merely because PW10 admitted that on earlier occasions also bribe was demanded from him whenever he pursued any similar application for cutting of trees and that he even admitted that bribe was paid by him to accused earlier also does not make the testimony of PW10 in any manner to be viewed with suspicion in this case. PW10 explained that qua the earlier incidents of bribe he did not give complaint as the accused had said that the officers would get changed upon transfer but the accused would remain in the office permanently. The said reason could have acted upon the mind of PW10 to persuade him to not give complaints qua the earlier occasions as PW10 was dealing with similar applications seeking permission to cut trees and that PW10 would have been apprehensive that it can hinder his future applications too. There is no reason for this Court to disbelieve that explanation given by PW10 in not giving complaints qua the earlier occasions. Though based on this fact the accused argued that PW10 was a tout and therefore his testimony should be disbelieved, but this Court does not find the argument appealable. Even if PW10 was a tout in such matters, it did not give license to the accused to demand and obtain bribe.
15.1. May be in the earlier instances PW10 succeeded in convincing the parties and gave bribe to the accused. Or it may be a false claim by the PW10 that earlier also qua other applications he gave bribe to the accused. In neither of the circumstances, the testimony of PW10 can be rejected in this case for that reason. After all, his testimony is corroborated on all necessary and material particulars by PW11 who is an independent witness. Even if for the sake of arguments, it is Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 25 of 40 26 assumed that PW10 had a reason to falsely depose against the accused, no such plausible reason has been put forth by the accused as to why PW11, who was unknown to PW10 till the raid of this case, would falsely depose against the accused and in favour of PW10. It is nobody's case that PW10 & PW11 knew each other prior to the date of raid. Similarly, the claim of accused that even the police officials of Anti-Corruption Branch favoured PW10 against the accused, is a hollow claim. After all, why would the police officials do so? There is no reason for them to have followed the directions of PW10. It is very easy to make bald allegations that investigating agency acted according to the wishes of an individual. Whenever any such claim is made, onus is on the accused to show, at least prima facie, some plausible reason as to why the investigating agency would toe the line of the complainant.
15.2. In this case, there is no reason even remotely suggested by the accused as to why PW11 who is an independent witness from a Government department and not under the investigating agency, and as to why PW16 & 17 who were Inspectors of Anti-Corruption Branch would falsely depose against the accused. Accused cannot expect this Court to believe that the police officials of Anti-Corruption Branch were in pocket of PW10 or PW11 or that the ACB officials acted as per their desire and implicated the accused.
15.3. Law does not say that a police official as a witness has to be disbelieved simply for the reason that he belongs to police force. A police witness is an equally competent witness in the eyes of law and there is absolutely no reason in this case to view the testimony of police officials with suspicion. Law nowhere requires that the testimonies of the police officials must be viewed with suspicion. Rather, it is settled that even the testimony of a police official, if found believable, does not need any corroboration and merely because the witness is a police official, his testimony cannot be brushed aside.
15.4. In the case of Girja Prasad v. State of M.P., (2007) 7 SCC 625, it is held as Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 26 of 40 27 follows;
"25. ..................It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence."
15.5. If the accused wanted this Court to take a view that the police officials of this case were interested witnesses, at least some cogent material should have been brought up by the accused on record which could have justified taking any such view. In absence of any such cogent material, the claim of accused that he was implicated falsely since PW10 had grudge, cannot be believed blindly.
16. The argument of accused that the accused had already prepared note Ex.PW5/A on 12.04.2016 in which he had given a positive report to favorably consider the application in question for cutting of trees and he had recommended consideration of the application favourably by asking the applicant to deposit the fee, therefore there was no occasion for the accused to have demanded bribe from PW10, is fallacious.
16.1. As per PW10, when PW10 visited the office of accused on 12.04.2016, it was on that day the accused had demanded bribe of Rs. 2 Lakh, which he reduced to Rs. 1 Lakh. Vide note Ex.PW5/A, all that the accused recommended was that he along with PW5 conducted site inspection and found the two trees standing in the area where a ramp was to be constructed and it was not possible to save the trees for construction of ramp to the underground parking to be constructed at the plot. Accordingly, all that he recommended was that security deposit of Rs. 57,000/- for each of the trees totalling Rs. 1,14,000/- may be got deposited from Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 27 of 40 28 the applicant and the applicant can be directed to plant ten trees within the plot and ten trees elsewhere. In this note, all that is recommended is that accordingly a letter to deposit the fees can be issued to the applicant after prior approval of the DCF. The DCF, i.e. PW8 R. Gopinath, approved this note on 12.04.2016 itself.
16.2. Therefore, first of all it is wrong on the part of accused to claim that after the permission / approval was got allowed in favour of cutting of trees on 12.04.2016 there was no occasion for demand of bribe. Rather on that day, only approval for deposition of fee was sought and granted. It is quite possible that after the accused demanded the bribe on 12-04-2016 and PW10 expressed his willingness to pay Rs 1 Lakh, the accused processed this note. Rather Ex.PW5/A corroborates the testimony of PW10 that on 12.04.2016 he went and met the accused and therefore the accused had every opportunity to demand bribe.
16.3. Another document Ex.PW10/D1 is the letter written on 12.04.2016 vide which the applicant was directed to deposit security amount of Rs. 1,14,000/- by way of DD in favour of the DCF for compensatory plantation of 20 saplings in lieu of the trees proposed to be cut. It is mentioned in this letter that the permission will be granted after receipt of security deposit.
16.4. Ex.PW5/B i.e. another note prepared by the accused on 21.04.2016, is the actual note under which permission was given for cutting of trees. This note was prepared on the date of raid and it was approved by DCF (PW8) on 21.04.2016 only. PW8 deposed that he had signed Ex.PW5/B on the date of incident before lunch and then he went for a meeting after lunch to some place outside the complex. Thus, the actual permission to cut trees was not granted till 21.04.2016 and it was actually granted on the date of raid i.e. 21.04.2016.
16.5. The accused therefore had every occasion to demand and obtain the bribe amount. This fact is also corroborated by receipt Ex.PW7/F under which the demand draft dated 15.04.2016 for a sum of Rs. 1,14,000/- as tree security was Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 28 of 40 29 deposited. The note Ex.PW5/B was prepared by the accused himself in his own hand writing on 21.04.2016 and then he obtained the approval of the DCF (PW8). The very fact that on the date of raid prior to the raid this note Ex.PW5/B was prepared by the accused in his own hand writing and duly signed by him and then he obtained approval of the DCF rather lends credence to the version of PW10 that demand of bribe was earlier made from him on 12.04.2016 and therefore PW10 went with the raid team on 21.04. 2016..
16.6. PW8 admitted that in the O/o DCF, a register was maintained qua dispatch of the documents and once PW8 used to sign the permission to cut trees, the permission used to be sent to the dispatch section and from there it used to be either hand delivered or delivered through post to the concerned applicant. In case it was hand delivered, the receiving of the person obtaining it used to be taken on the register. Therefore, it is all the more important as to how the accused remained in possession of the permission Ex.PW17/B which he handed over to PW10 in presence of PW11 after receiving the bribe amount. It is not the case of accused that the said permission was handed over directly by the dispatch clerk to PW10 or to Abhijit Chakraborty. Rather, it has come in evidence that it was the accused who got the dispatch number written on it and then he gave the same to PW10.
16.7. The argument of accused that as per testimony of PW8, sixty days' time was available for the O/o DCF to accord Sanction and in this case PW10 claims that he was demanded bribe even prior to that day, therefore PW10 should not be believed, is also fallacious. It was not necessary for the accused to have demanded bribe only after the completion of 60 days' outer limit. It may well be possible that the accused demanded bribe even during that period while processing the application.
17. In the present matter, as per the case of prosecution the demand of bribe from PW10 was made on two occasions i.e. once on 12.04.2016 when PW10 went to Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 29 of 40 30 pursue the application in question in the O/o DCF. The second demand occurred on 21.04.2016 at the time of trap proceedings and acceptance of bribe at that point of time.
18. Taking up the fact whether the prosecution succeeds in proving demand of bribe prior to the date of raid i.e. on 12.04.2016, the only witness available with prosecution qua that fact is PW10 himself. PW10 specifically deposed in his testimony that when he went to the O/o DCF on 12.04.2016 to pursue the application, he met the accused who was looking after the work of Tree Cell in the said office. After the accused handed over a letter to PW10 to deposit the requisite fees, the accused also demanded bribe of Rs. 2 Lakh for grant of permission. Upon negotiation by PW10, the demand was reduced to Rs. 1 lakh and PW10 returned after agreeing to pay that amount.
18.1. In the complaint Ex.PW10/A, no specific date of visit by PW10 to the O/o DCF is mentioned, but it is mentioned that when PW10 went to the O/o DCF, the accused demanded Rs. 2 Lakh and upon negotiation the demand was brought down to Rs. 1 Lakh and thereafter the complaint Ex.PW10/A was given. Besides the complaint in the statement U/s 161 Cr.P.C of PW10 there is no reference as to the date of earlier demand.
18.2. In the charge framed against the accused, therefore the date of 12.04.2016 as the date of first demand is not specifically mentioned as it was not contained either in the complaint or in the statement of PW10 or even in the final report. The charge however clearly speaks about the fact that the accused initially demanded a sum of Rs. 2 Lakh from PW10, which he reduced to Rs. 1 Lakh. The charge also specifically prescribes about the demand and acceptance of the bribe on 21.04.2016.
18.3. The question is whether on the sole testimony of PW10 the demand of bribe amount on 12.04.2016 is proved or not. As there is no other witness to that fact, the corroboration to the claim of PW10 will have to be deduced from attending Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 30 of 40 31 circumstances. It has come in the testimony of PW10 & PW11 that on the date of raid on 21.04.2016 when both of these witnesses went to the accused, the accused asked PW10 whether PW10 came ready, and when PW10 affirmed it, the accused went and got the endorsement number written on the permission and thereafter he demanded bribe from PW10 and also he extended his hand while seeking the bribe amount. When PW10 handed over the bribe amount of Rs. 40,000/-, the accused kept the same in his pocket and he also specifically inquired from PW10 as to how much amount it was. PW10 then told the accused that he would pay the balance amount later on.
18.4. Though there is no reference of the amount which was agreed to between the accused and PW10 in the communication between them on 21.04.2016, but the very fact that the accused asked PW10 whether PW10 has brought the bribe and then he also asked PW10 as to how much amount was given to him, corroborates that there was earlier demand by the accused from PW10.
18.5. In any case, this Court has no reason to view the deposition of PW10 with suspicion as to the demand made on 12.04.2016. In such circumstances, this Court finds the testimony of PW10 believable on the point that the accused demanded a bribe of Rs. 2 lakhs from PW10 on 12.04.2016 which he reduced to Rs. 1 Lakh on that very day, for processing the application in question favourably. Accordingly, the prosecution succeeds in proving the demand of bribe by the accused from PW10 on 12.04.2021.
18.6. In the case of A. Kanagrajan Vs. State 2014 SCC Online Madras 11323, quoting para no. 12 of the case of C. M. Sharma Vs. State of A. P. 2011 SAR (Criminal) 76, it was observed that corroboration of evidence of a witness is required when his evidence is not wholly reliable and on appreciation of evidence, witnesses can be broadly categorised in three categories viz., unreliable, partly reliable and wholly reliable. In the case of partly reliable witness, the Court seeks corroboration in material particulars from other evidence, whereas in the case of Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 31 of 40 32 wholly reliable witness, no corroboration is necessary.
18.7. In the present case PW10 is a wholly reliable witness and no corroboration was thus necessary. Yet his testimony as to the earlier demand is corroborated from circumstances, as mentioned above.
19. Similarly, the testimony of PW10 & PW11 proves that even at the time of trap the accused demanded bribe from PW10 by asking him whether PW10 was ready, thereby meaning whether he has brought the bribe amount. When PW10 affirmed this fact, it was only thereafter that the accused went to get the endorsement number written on the permission and thereafter he accepted bribe from PW10 and handed over the permission to cut trees. The testimony of PW10 & PW11 clearly proves the factum of demand of bribe by the accused at the time of trap.
19.1. The testimony of PW10 & 11 also proves that the accused was handed over the currency notes of Rs. 40,000/- which were already treated with the Phenolphthalein Powder against the demand of bribe by the accused earlier and on that very day, and the accused kept the same in his pocket and then he even inquired from PW10 as to how much amount it was? Upon it, PW10 told the accused that he would pay the balance amount in few days.
19.2. The testimony of PW16 also confirms the recovery of that amount from the possession of accused. Recovery of the amount is also deposed by PW10 & 11. Interestingly, in the cross-examination of PW10, the accused rather suggested PW10 that it was PW10 who inserted the bribe amount in the pocket of trouser of accused without his consent or that the accused then took out the amount and threw it on the floor from where it was collected by PW16. PW10 obviously denied the suggestion. No such suggestion was given to PW11 or PW16 about recovery of money from the floor. No such suggestion was given to PW11 about forcible insertion of money. This suggestion rather lends credence to the version of the Prosecution that money was actually paid and recovered from the accused.
Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 32 of 40 3319.3. From these facts, the factum of acceptance of bribe amount by the accused knowingly that it was a bribe amount also gets proved.
20. Once the factum of acceptance and recovery of the bribe from the possession of accused gets proved, in terms of Sec. 20 of the POC Act, 1988, the onus shifted upon the accused that he accepted the bribe amount for the purposes defined in Sec. 7 of the Act. Sec. 20, so far as relevant for this case, provides that when in a trial U/s 7 of the POC Act, 1988, it is proved that the accused accepted or obtained or agreed to accept or attempted to obtain for himself any gratification other than legal remuneration, it shall be presumed, unless the contrary is proved that the accused accepted or obtained or agreed to accept or attempted to obtain that gratification as a motive or reward such as is mentioned in Sec. 7.
20.1. Thus, in the present case the accused cannot argue that he was not competent to accord Sanction for cutting of trees or that he was merely a labourer or that he was not dealing with the application for cutting of trees in question. Not only the fact is proved that it was the accused who was processing the application in question vide the notes prepared by him in his own hand writing Ex.PW5/A & B, but also there is a presumption U/s 20 of the PC Act against the accused which the accused completely failed to rebut.
21. It is also argued by the accused that the seizure memos as to hand wash and pocket wash, the seizure of trouser of accused, the seizure of currency notes are concerned Ex.PW10/B & Ex.PW10/C, the same are computer print outs and it has not been proved by the Prosecution that the raid officer carried along any computer / laptop as well as the printer to the raid spot, particularly when the Prosecution witnesses claimed that these documents were prepared and signed at the O/o DCF. It is argued that the said fact proves that the case of prosecution is not true.
21.1. The pre raid report Ex.PW10/H regarding the procedure done at ACB before leaving for raid; the pre raid report Ex.PW10/I regarding leaving of PS ACB by Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 33 of 40 34 the raiding team at 2.05 PM; pre raid report Ex.PW16/B regarding taking position at the DCF office at 3.05 PM; raid report Ex.PW16/C regarding receipt of pre-determined signal and the completion of proceedings inside the office of DCF; and the rukka Ex.PW16/A, are all computer typed and printed documents. Similarly, the seizure memo of hand wash, pant wash and the pant of accused Ex.PW10/B as well as the seizure memo of currency notes Ex.PW10/C are also computer typed and printed documents.
21.2. When the IO Inspector Manoj Kumar Aggarwal was questioned as to these documents, his stand was that along with the raid box, he took along his personal laptop also. He claimed that Ex.PW10/H & I, i.e. pre raid reports till the raiding team left the spot, were prepared by him before leaving for raid, whereas the other part of pre & post raid report Ex.PW16/A, B & C were prepared by him at the office of DCF with the help of his laptop. These answers were given by PW16 in his examination in chief itself. However, the accused did not question PW16 in his cross examination as to how come those documents were prepared in the office of DCF and as to through the help of which printer he obtained those printouts. Similarly, the accused did not question as to these documents in the cross examination of PW17 who took over the investigation from PW16 at the spot itself. In Ex PW10/H it is specifically mentioned that printer, Laptop was also taken along by the Raid officer. The accused did not choose to cross examine the two police officials on this aspect of the matter. Complainant PW- 10 was also not asked about it. Only PW11 the panch witness deposed that no computer, type writer or printer was carried at the spot by the raid officer. But when in Ex PW10/H it is specifically mentioned that printer, Laptop was also taken along by the Raid officer, and other witnesses were not asked by the accused about it, accused cannot claim any benefit now. On that ground no benefit should be given to the accused. In the considered opinion of this Court, no such benefit can be claimed by the accused. These documents also bear the signatures of the accused. It has come in the evidence of prosecution's witnesses, Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 34 of 40 35 convincingly that the accused not only demanded bribe at his office on 21.04.2016 but he also obtained it and the bribe amount was also recovered from him. In the present trap case, what is important is whether the accused was apprehended red handed and whether he demanded and obtained bribe amount. Once this fact is convincingly proved, even if the prosecution's case is partially doubted as to the preparation of documents at the spot, the entire case of the prosecution cannot be rejected.
22. PW17 deposed that he got deposited the case property in the Malkhana of PS Civil lines through Ct. Ashok and at that time ACB did not have its own Malkhana. This explains the fact that the Malkhana Moharrar might have recorded the name of the depositor of the case property in Register no. 19 Ex.PW4/A in column no. 3 from the seizure memo of the case property itself and not actually of Ct. Ashok. The seizure memo Ex.PW10/B & Ex.PW10/C both are countersigned by the Malkhana Moharrar (PW4) at the time of taking the case property in the Malkhana and it seems that he noted down the name of Inspector Manoj (PW16) in column no. 3 of Ex.PW4/A from the seizure memos. It has categorically come in the evidence of PW10, PW11, PW16 and, PW17 that the raid officer left the spot after handing over the case property to PW17. No question was asked to PW4 as to who exactly deposited the case property in the Malkhana on 21.04.2016.
23. The argument of accused that the raid officer did not make detailed and proper inquiries from PW10 before proceeding for raid by asking PW10 as to his company / proprietary concern / partnership; the contract between the complainant and Mirkana; the documentary proof as to ownership of the property; the photos of the trees and the construction site; the copies of application submitted in the O/o DCF; the locus of the complainant etc., therefore the entire case should be disbelieved. This argument has to be rejected as a raid officer was not required to go into all those details before proceeding Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 35 of 40 36 for raid. Once it is established beyond doubt that the accused demanded bribe from the complainant in presence of the Panch witness and obtain the same, all these things loose significance.
23.1. Non-conducting of the preliminary inquiry before registration of the present case is also not a ground to throw out the case of prosecution against the accused. Conducting of preliminary inquiry in such cases may though be desirable, but is not mandatory. (Reliance; CBI Vs. Thommandru Hannah Vijayalakshmi alias T.H. Vijayalakshmi and Another ...2021 SCC OnLine SC 923 Decided on October 8, 2021)
24. The argument of accused that in support of the photograph filed along with the application seeking permission to cut trees, which photographs were taken through mobile phone as per deposition of PW10, no Certificate U/s 65B of Evidence Act is proved, has to be rejected. Those photographs were not proved in evidence in this Court. Those photographs were merely annexed along with the application seeking permission to cut the trees in the O/o DCF where no such certificate was required. Even without proving of photographs of the standing trees which were to be cut, the fact that trees were required to be cut and that those trees were standing at the plot gets sufficiently established from the note Ex.PW5/A prepared by none other than the accused in his own hand writing and which bears his signature. The fact that Ex.PW5/A & B are in the hand writing of accused and bears his signature are proved by the colleagues of accused PW5 Bhim Dutt and PW8 R. Gopinath.
25. Though, the call details of the accused and the complainant has not been obtained in this case and, had they been obtained by the investigating agency, it would have further strengthened their case, but merely because the same was not obtained by the investigating agency, the otherwise inspiring testimonies of PW10 & 11 cannot be suspected.
26. It is well settled in law that even if a witness lies on few aspects of the matter, Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 36 of 40 37 his entire testimony cannot be rejected for that reason and the law is that the reliable part of evidence of a witness can be relied and acted upon even if part of his testimony is found to be not true.
26.1. In the case of State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360, Supreme Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required it to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb v. State of U.P., (2006) 2 SCC 450: AIR 2006 SC 951; Sarvesh Naraian Shukla v. Daroga Singh, (2007) 13 SCC 360: AIR 2008 SC 320 and Subbu Singh v. State, (2009) 6 SCC 462.
26.2. In the case of Sheesh Ram and Ors. Vs. The State of Rajasthan, Criminal Appeal No. 191 of 2004, Decided on January 29, 2014, it is held as follows;
"7. ............................It is true that these witnesses have improved the prosecution story to some extent. But, that improvement or that exaggerated version can be safely separated from the main case of the prosecution. So far as the main prosecution case is concerned, all the witnesses are consistent. This is not a case where truth and falsehood are inextricably mixed up. Witnesses tend to exaggerate the prosecution story. If the exaggeration does not change the prosecution story or convert it into an altogether new story, allowance can be made for it. If evidence of a witness is to be disbelieved merely because he has made some improvement in his evidence, there would hardly be any witness on whom reliance can be placed by the courts. It is trite that the maxim 'falsus in uno falsus in omnibus' has no application in India. It is merely a rule of caution. It does not have the status of rule of law. ......................"
26.3. In the case of Rizan v. State of Chhattisgarh (2003) 2 SCC 661, it is held as;
"Even if a major portion of evidence is found to be deficient, in case residue is sufficient Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 37 of 40 38 to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (Also See Nisar Ali v. State of U.P AIR 1957 SC 366.)"
27. The accused also challenges Sanction U/s 19 of the POC Act Ex.PW9/A on two grounds. Firstly, it is claimed that the Sanction has to be treated as invalid since in the Sanction Ex.PW9/A there is no mention that any document viz., copy of FIR, statements of witnesses, FSL result, draft charge sheet were received by the Sanctioning Authority from the investigating agency. Secondly, it is claimed that the Sanctioning Authority did not see and peruse the complete file of the O/o DCF in which the application seeking cutting of trees was dealt with; he did not ask for written report as to the facts of the case from DCF; he did not ask any report from DCF as to the conduct of accused; from where the bribe amount was arranged and; he also did not inquire as to the previous conduct of the accused and also that the Sanctioning Authority did not undertake independent inquiry into the allegations before according Sanction.
27.1. I am afraid, on neither of those grounds the Sanction can be treated as invalid or accorded without application of mind.
27.2. The Sanctioning Authority PW9 Ishwar Singh, the Principal Chief Conservator of Forests specifically deposed in his examination in chief that he had perused the documents viz., "copy of FIR, copy of arrest memo, statement of witnesses, draft charge sheet and FSL report etc." before according Sanction. Similarly, the Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 38 of 40 39 IO PW14 Inspector Rajesh Shah also deposed that along with the letter seeking Sanction, he had sent copies of documents i.e. "copy of FIR, copies of seizure memos, tehrir, search memos etc." to the competent authority. Accordingly, even if in the Sanction Ex.PW9/A, those documents are not specifically described, it cannot be taken that the Sanctioning Authority did not consider the documents. In Ex.PW9/A, it is mentioned that from the records received from the Anti- Corruption Branch it was revealed that the accused demanded bribe and other facts are also mentioned. Though, Ex.PW9/A finds mention about the records received and not specifically as to which particular documents were received, but Ex.PW9/A together with the testimony of PW9 & 14 clearly establishes that the documents were indeed received by the Sanctioning Authority and were perused by the Sanctioning Authority before according sanction.
27.3. A Sanctioning Authority is not legally required to undertake any separate inquiry as to the facts and the job of Sanctioning Authority is to be prima facie satisfied from the documents received from investigating Agency as to whether an accused need to be prosecuted and whether the case requires grant of Sanction or not. While granting Sanction, a Sanctioning Authority has to form opinion only prima facie in nature based on the material supplied. Neither the Sanctioning Authority is required to undertake any detailed inquiry, nor it can be expected to undertake exercise equivalent to that of a mini trial in a criminal case, before granting or refusing Sanction.
27.4. In the case of Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88, it is observed by the Apex Court as follows;
"25. On the said aspect, the later decision of this Court in State of Maharashtra v. Mahesh G. Jain [State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85] has referred to several decisions to expound on the following principles of law governing the validity of sanction: (SCC pp. 126-27, para 14) "14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 39 of 40 40
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. 14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction. 14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity."
28. The sum & substance of the above discussion is that the Prosecution succeeds in proving its case that the accused demanded bribe of Rs. 2 Lakh from the complainant PW10 on 12.04.2016 and he reduced that amount to Rs. 1 Lakh on that day. Thereafter, on 21.04.2016, the accused demanded and accepted the bribe amount of Rs. 40,000/- from the complainant PW10 and he also demanded the balance amount out of Rs. 1 Lakh after receiving Rs. 40,000/-. Thus he also obtained the said amount of Rs. 40,000/- bribe from the complainant.
29. Accordingly accused Dinesh is found guilty and convicted U/s 7 & Sec. 13 (2) read with 13(1)(d) of the POC Act, as were in force at the time of commission of offence of this case.
Announced in the open Court Digitally
on 6th day of May 2023. DIG signed by DIG
VINAY SINGH
VINAY Date:
2023.05.06
SINGH 12:07:49
+0530
Dig Vinay Singh
Special Judge (PC Act) ACB-02
Rouse Avenue Courts / Delhi (r)
Judgment; Dated 06-05-2023; CNR No. DLCT11-000395-2020; CC No.89/2020; State Vs.Dinesh Kumar; FIR No.06/2016; PS ACB; Page 40 of 40