Delhi District Court
State vs . 1. Bobby on 17 October, 2012
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 12/12
Unique Case ID : 02401R0195682011
STATE VS. 1. BOBBY
S/o Sh. Harish Chand Singh
R/o Vill. Dhum Khera, PS Badal Pur,
Distt. Gautam Budh Nagar, U.P.
2. SUDHIR KUMAR YADAV
S/o Sh. Tek Chand,
R/o Vill. Sirondan, PS Sikandrabad,
Distt. Buland Shaher, Uttar Pradesh.
FIR NO. : 10/2010
U/S : 7/13 of Prevention of Corruption Act,
1988 & 120 B I.P.C.
P.S. : Anti Corruption Branch, Delhi
Date of Institution 29.04.2011
Judgment reserved on 10.10.2012
Judgment delivered on 17.10.2012
C.C. No. 12/12 Page No. 1 of 45
JUDGMENT
1. The precise case of the prosecution is that on dated 05.03.2010 the complainant Sudhir Kumar S/o Om Pal Singh came to Anti Corruption Branch and got lodged his Complaint Ex.PW11/A before the Inspector Kailash Chandra, Raid Officer/PW18 in the presence of Panch witness PW17/Vipin Kumar regarding demand of bribe of Rs.1500/ by the accused HC Bobby and Ct.Sudhir Kumar Yadav posted in Delhi Traffic Police, Lajpat Nagar for getting running of the Bus by the complainant smoothly without issuance of challan.
2. The gist of the said complaint is that the complainant had taken a blue line Bus bearing No. DL 1PA 5364 on the basis of Power of Attorney from its owner Vishal Pal Singh and said Bus was being plied on Route No.429 from Mori Gate to Kalkaji DDA Flats through Driver Raj Kumar. On 2.3.2010 said Driver informed the complainant that Traffic Head Constable alongwith one Constable riding on motor cycle used to stop said Bus between Lajpat Nagar to Okhla Mandi at Garhi Lajpat Nagar Red Light and they used to demand bribe as monthly for plying of said Bus. On 4.3.2010 at about 7:00 p.m. when the complainant was going in the said Bus to meet said Traffic Police, C.C. No. 12/12 Page No. 2 of 45 Bus was stopped at Garhi T Point by HC Bobby and Ct.Sudhir Kumar Yadav having their name plates on their police uniform shirt who demanded bribe of Rs.1500/ towards monthly for plying of said Bus otherwise they would impound said Bus and asked him to bring said amount on 05.03.2010 between 5:00 to 6:00 p.m. at Ring Road Traffic Booth Lajpat Nagar. Since the complainant was against giving of bribe, he went to Anti Corruption Branch and got his complaint lodged before the Inspector Kailash Chandra, Raid Officer PW18 in presence of Panch witness Vipin Kumar, PW17.
3. The further case of the prosecution is that the complainant has produced 3 GC notes of Rs. 500/ each before the Raid Officer PW18 who noted down the serial number of said GC notes in the pre raid proceedings Ex.PW11/B and treated the said GC notes with phenolphthalein powder. Thereafter, Raid Officer PW18 gave demonstration to the Panch witness, complainant by getting touched the right hand of the Panch witness with that treated currency notes and wash of the right hand of the Panch witness in the colourless solution of sodium carbonate which turned into pink. Thereafter, said GC notes were handed over to the complainant and Panch witness was instructed to remain close with the complainant and to overhear the C.C. No. 12/12 Page No. 3 of 45 conversation between the complainant and the person demanding the bribe amount and to give signal by moving his hand twice over his head after being satisfied that the bribe has actually been given.
4. That at about 4:10 p.m., PW18 Raid Officer along with complainant, Panch witness, Inspector V.K.Singh and other members of the raiding party left Anti Corruption Branch in two vehicles and reached near Lajpat Nagar Flyover. Vehicles were parked at some distance, Inspector V.K.Singh alongwith the Drivers remained in the vehicles. Complainant and Panch witness went towards the Traffic Booth and the members of the Raiding team took suitable position.
5. The further case of the prosecution is that at about 5:15 p.m. on receiving the predetermined signal, Raiding team reached at the spot where Panch witness informed that the accused HC Bobby had demanded bribe of Rs.1500/ and accepted the same in his right hand from the complainant and handed over the same to accused Ct.Sudhir Kumar Yadav who accepted the same with his right hand and kept the same in the right pocket of his uniform shirt. Thereafter, Raid Officer after disclosing his identity challenged both the accused that they had demanded and accepted the bribe of Rs.1500/ from the complainant C.C. No. 12/12 Page No. 4 of 45 and offered his search but accused declined. On his directions, Panch witness recovered bribe amount of Rs.1500/ from the right side pocket of uniform shirt of accused Sudhir Kumar Yadav and compared the serial number of that GC notes with serial number mentioned in pre raid proceedings Ex.PW11/B and the same tallied. That recovered GC notes were taken into possession vide seizure memo Ex.PW11/E. The wash of right hand of the accused Sudhir Kumar Yadav was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of KC and were marked as RHWI & RHWII by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. The wash of right pocket of the shirt of the accused Sudhir Kumar Yadav was taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of KC and were marked as RSSPWI & II by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Thereafter, right hand wash of accused HC Bobby was also taken in colorless solution of sodium carbonate which turned into pink and solution was transferred into two empty small clean bottles which were sealed with the seal of KC C.C. No. 12/12 Page No. 5 of 45 and were marked as RHWIII & IV by pasting slips thereon which were signed by Raid Officer, complainant and Panch witness. Those bottles, pullanda of shirt of accused Sudhir Kumar Yadav and sample seal were taken into possession vide Seizure Memo Ex.PW11/F. Raid Officer also drawn up the post raid proceedings which is Ex.PW11/C and prepared rukka Ex.PW18/A and sent the same through Ct. Dinesh to PS Anti Corruption Branch for registration of the case and copy of the FIR is Ex.PW1/A.
6. The further case of the prosecution is that the Raid Officer called Inspector V.K.Singh PW 19/IO at the spot and handed over him the custody of both the accused, case property and relevant documents etc. for purpose of Investigation. I.O. took up the Investigation, prepared the Site Plan Ex.PW11/D. IO interrogated both the accused and arrested them vide Arrest Memo of accused Sudhir Kumar Yadav Ex.PW11/G and that of accused HC Bobby is Ex.PW11/H and conducted personal search of accused Sudhir Kumar Yadav vide Memo Ex.PW11/I and personal search of accused Bobby vide Memo Ex.PW11/J. IO recorded the statement of complainant and Panch witness and other relevant witnesses. IO got medically examined the accused persons and put them in the lock up. During the course of C.C. No. 12/12 Page No. 6 of 45 Investigation, IO collected the TransferPosting Order of the accused Ex.PW5/A and Ex.PW5/B, copy of the Chitha Register containing Duty of the accused on 5.3.2010 Ex.PW9/A, copy of RC of said Bus Ex.PW7/A, copy of Certificate of Fitness Ex.PW7/B, copy of Permit Ex.PW7/C, copy of the challan chit Ex.PW11/H, Bio data of accused Bobby Ex.PW12/A, Bio data of accused Sudhir Kumar Ex.PW12/B. During Investigation, IO sent the relevant exhibits to FSL and later on FSL Report Ex.PW19/A was obtained. IO also obtained Specimen Handwriting and Signatures of complainant Sudhir Kumar on 6 sheets Ex.PW19/B to G which were sent to FSL alongwith Questioned Documents Ex.PW19/H and subsequently FSL Report Ex.PW19/J was obtained. IO also obtained Sanction for prosecution as against accused Ex.PW16/A. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
7. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 7 and 13 (2) r/w 13(1) (d) of Prevention of Corruption Act, 1988 r/w Section 120B IPC was framed against accused both the accused on 21.07.2011 to which both accused C.C. No. 12/12 Page No. 7 of 45 pleaded not guilty and claimed trial.
8. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 19 prosecution witnesses namely SI Anand Swaroop, a formal witness as PW1, HC Satedev Singh, a formal witness as PW2, HC Jai Prakash, the then MHC(M), PS Civil Line, a formal witness as PW3, K.B.Babbar, a formal witness as PW4, SI Hari Prakash, a formal witness as PW5, HC Anand Prakash, a formal witness as PW6, Vishwa Pal Singh @ Vishal Pal Singh, who is the owner of the Bus No.DL 1PA 5364, a formal witness as PW7, SI K.L.Meena, a formal witness as PW8, HC Surender Singh, a formal witness as PW9, Giriraj Singh, Panch witness on formal aspect as PW10, Sudhir Kumar, complainant as PW11, ACP Jagpal Kaur, a formal witness as PW12,Pradeep Kumar, a formal witness as PW13, Raj Kumar Sharma, the Driver of said Bus as PW14, Ct.Dinesh, a formal witness as PW15, DCP Brahm Singh, Sanctioning Authority as against both the accused as PW16, Vipin Kumar, Panch witness to Raid Proceedings as PW17, Inspector Kailash Chandra, Raid Officer as PW18 and Inspector V.K.Singh, IO as PW19.
9. After closure of the PE, statement of accused under Section C.C. No. 12/12 Page No. 8 of 45 313 Cr.P.C. were recorded in which the accused persons denied about any demand and acceptance of the bribe from the complainant. Accused claimed to be falsely implicated in this case having no concern with the alleged offence.
10. I have heard Final Arguments as addressed by Sh. Yogesh Kumar Verma, Adv. Ld. Counsel for the accused Bobby, Sh.R.S. Singhal, Adv. Ld. Counsel for accused Sudhir Kumar Yadav and Sh. Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record.
11. It is submitted by Ld. Counsel for the accused Bobby that said accused has neither demanded nor accepted any bribe from the complainant and prosecution has failed to prove about the said aspects and hence, said accused deserves to be acquitted. It is also added by Ld. Defence Counsel that PW11/Sudhir Kumar complainant has turned hostile and has not supported the case of the prosecution at all and has not deposed anything as regards demand, acceptance and recovery of bribe as against this accused Bobby and hence, this accused deserves to be acquitted. It is further added by Ld. Counsel that PW14 Raj Kumar, Driver has also flatly refused about any C.C. No. 12/12 Page No. 9 of 45 demand of bribe from him by the accused. It is further added by Ld. Counsel that even PW17/Vipin Kumar Panch witness has not deposed as regards of demand of bribe by this accused Bobby from the complainant. It is also added by him that as there is no evidence regarding demand, acceptance and recovery of bribe as against accused Bobby, he deserves to be acquitted. It is also added by him that even otherwise as PW17/Vipin Kumar Panch witness has admitted that he had joined several cases of Raid, his deposition cannot be treated as reliable. It is also added by Ld. Counsel that PW11/complainant has admitted in his cross examination that Complaint Ex.PW11/A was written by him on the dictation of Raid Officer and therefore, the same cannot be considered as against this accused Bobby. It is also added by Ld. Counsel that PW11/complainant in his cross examination has stated that Police Officials were caught hold in the said Booth by the Raiding party by their fist, which explained the reason for changing of their handwash to Pink Colour and therefore, the same cannot be read as against the accused. Thus, Ld. Counsel for the accused Bobby urged for acquittal of this accused.
12. Similarly, it is submitted by Ld. Counsel for the accused C.C. No. 12/12 Page No. 10 of 45 Sudhir Kumar Yadav that this accused is innocent and has been falsely implicated in this case. It is further added by him that this accused Sudhir was posted on duty on that day at Lal Sahi Market, Ring Road as per Chitha Ex.PW9/A, which was not at the Bus Route No. 429 and therefore, there was no occasion on the part of this accused to demand any bribe from the complainant for plying his Bus. It is further added by him that PW11/complainant has completely turned hostile and has not supported the case of the prosecution and hence, this accused deserves to be acquitted. It is further added by him that even PW14/Raj Kumar Sharma Bus Driver of the complainant has also not deposed anything regarding initial demand of bribe from him as against the accused persons and hence, this accused deserves to be acquitted. It is further added by him that PW17/Panch witness has admitted that he has joined duty in many cases and therefore, he cannot be treated as an independent witness and his deposition cannot be treated as reliable. It is further added by him that said PW17 has given contradictory deposition as regards the person who recovered the bribe money from the accused as in his examinationinchief he deposed that one of the member of the Raiding team recovered said 3 GC Notes of Rs.500/ but in the cross examination by Ld. Addl. PP, he deposed that he recovered 3 GC C.C. No. 12/12 Page No. 11 of 45 Notes of Rs.500/ from accused Sudhir, which are contradictory in nature and hence, his deposition cannot be treated as trustworthy. It is also added by him that Sanction Order in this case has been passed by PW16/Brahm Singh, DCP mechanically without proper application of mind and therefore said Sanction Order is invalid and entire proceedings stand vitiated. It is further added by him that that as there is no allegation of demand of bribe as against accused Sudhir and therefore, mere recovery in the absence of any demand of bribe cannot establish the charged offence as against this accused Sudhir. Thus, Ld. Counsel for accused Sudhir Kumar Yadav urged for acquittal of this accused Sudhir Kumar Yadav.
13. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 19 PWs have clearly established its case as against both the accused and therefore, both the accused deserve to be convicted for the charged offence. It is further added by Ld. Addl. PP for the State that the complainant PW11 Sudhir Kumar and PW14 Raj Kumar Sharma Bus Driver of the complainant have turned hostile by being won over by the accused persons but same can be of no help for the said accused as the prosecution has successfully established its case as against the accused through the deposition of C.C. No. 12/12 Page No. 12 of 45 other witnesses and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that PW17/Panch witness has clearly identified both the accused persons who were present at the spot. It is also added by Ld. Addl. PP that if there was no demand of bribe by the accused persons from the complainant then why the complainant had lodged his written Complaint Ex.PW11/A at Anti Corruption Branch and why he had accompanied to the Panch witness to the Police Booth and why accused Sudhir Kumar Yadav had accepted the bribe money on asking by coaccused Bobby. It is also added by Ld. Addl. PP that PW7/Vishwa Pal Singh has clearly deposed that the complainant had told him regarding demand of bribe by the accused Bobby and Sudhir Kumar Yadav who were Traffic Police Officials in Lajpat Nagar Circle. Ld. Addl. PP for the State has added that prosecution has been successful in establishing its case as against the accused persons for the charged offence and hence, both the accused deserve to be convicted.
14. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction has been accorded by the Competent Authority as per Section 19 (1) (c) of Prevention of Corruption Act, 1988. In order to C.C. No. 12/12 Page No. 13 of 45 prove the Sanction, the prosecution has examined PW16 Sh.Brahm Singh, the then DCP, 3rd Battalion, DAP, New Delhi who has categorically deposed that on 20.08.2010 when he was posted as DCP, 3rd Battalion, Vikas Puri Police Complex, New Delhi, on receiving the request alongwith the case file from Anti Corruption Branch, he went through the documents available on the file i.e. copy of FIR, Site Plan, Seizure Memos, Complaint, Copy of Raid, FSL Report, Statements of PWs etc. and after applying his mind and he was competent to remove the accused HC Bobby and Ct. Sudhir from service being their Disciplinary Authority, granted Sanction for launching prosecution as against them vide Sanction Order Ex.PW16/A which bears his signature at point A. He had specifically denied the suggestion of Ld. Defence Counsel that he had accorded the sanction mechanically without proper application of mind.
15. In the case reported as State of Maharashtra and ors V/s Ishvar Piraji Kelpatri & ors 1996 Cri.L.J.1127, where Hon'ble Supreme Court had laid down that if the Authority according Sanction makes statement that while signing the order of Sanction, it had personally scrutinized the file and had arrived at required satisfaction, it is not necessary to look for, that there was application of mind or C.C. No. 12/12 Page No. 14 of 45 not or that material on record was examined by the concerned officer or not before according sanction, especially when order prima facie shows that, he had done so.
16. Furthermore, in the case reported as 2004 (13) SCC 487, Shankar Bhai Lalji Bhai Vs. State of Gujrat, it was observed by Hon'ble Supreme Court of India as under: "So far as the question of Sanction is concerned, in the absence of anything to show that any defect or irregularity therein caused failure of justice, that plea is without substance."
17. In the case reported in 2011 I AD (CRI.) (S.C.) 1, Kootha Perumal Vs. State (through) Inspector of Police, Vigilance & Anti Corruption, it was held in Para 14 by Hon'ble Supreme Court of India as under: "Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction order in the present case was not valid. Ex.P2 with the present appeal is the copy of the sanction order. A perusal of the same would show that the sanctioning authority has C.C. No. 12/12 Page No. 15 of 45 adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also states that the other materials such as copy of the FIR as well as other official documents such as the different mahazars were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal".
18. By taking cue from the aforesaid judgments and applying the same to the facts of the present case, I do not find any force in the submission of Ld. Counsel for the accused Sudhir Kumar Yadav to C.C. No. 12/12 Page No. 16 of 45 the effect that Sanction Order was passed mechanically as I am of considered view that the Sanction has been validly granted by PW16 Sh. Brahm Singh, the then DCP, 3rd Battalion, New Delhi who was competent to do so.
19. That during the course of argument, it is submitted by Ld. Counsel for the accused Bobby that said accused has neither demanded nor accepted any bribe from the complainant and prosecution has failed to prove about the said aspects and hence, said accused deserves to be acquitted. It is also added by Ld. Defence Counsel that PW11/Sudhir Kumar complainant has turned hostile and has not supported the case of the prosecution at all and has not deposed anything as regards demand, acceptance and recovery of bribe as against this accused Bobby and hence, this accused deserves to be acquitted. It is further added by Ld. Counsel that PW14 Raj Kumar, Driver has also flatly refused about any demand of bribe from him by the accused. It is further added by Ld. Counsel that even PW17/Vipin Kumar Panch witness has not deposed as regards of demand of bribe by this accused Bobby from the complainant. It is also added by him that as there is no evidence regarding demand, acceptance and recovery of bribe as against accused Bobby, he C.C. No. 12/12 Page No. 17 of 45 deserves to be acquitted. Similarly, it is submitted by Ld. Counsel for the accused Sudhir Kumar Yadav that this accused is innocent and has been falsely implicated in this case. It is further added by him that this accused Sudhir was posted on duty on that day at Lal Sahi Market, Ring Road as per Chitha Ex.PW9/A, which was not at the Bus Route No. 429 and therefore, there was no occasion on the part of this accused to demand any bribe from the complainant for plying his Bus. It is further added by him that PW11/complainant has completely turned hostile and has not supported the case of the prosecution and hence, this accused deserves to be acquitted. It is further added by him that even PW14/Raj Kumar Sharma Bus Driver of the complainant has also not deposed anything regarding initial demand of bribe from him as against the accused persons and hence, this accused deserves to be acquitted. It is added by Ld. Addl. PP for the State that the complainant PW11 Sudhir Kumar and PW14 Raj Kumar Sharma Bus Driver of the complainant have turned hostile by being won over by the accused persons but same can be of no help for the said accused as the prosecution has successfully established its case as against the accused through the deposition of other witnesses and there is no reason to disbelieve them. It is further added by Ld. Addl. PP that PW17/Panch witness has clearly identified both the C.C. No. 12/12 Page No. 18 of 45 accused persons who were present at the spot. It is also added by Ld. Addl. PP that if there was no demand of bribe by the accused persons from the complainant then why the complainant had lodged his written Complaint Ex.PW11/A at Anti Corruption Branch and why he had accompanied with the Panch witness to the Police Booth and why accused Sudhir Kumar Yadav had accepted the bribe money on asking of coaccused Bobby. It is also added by Ld. Addl. PP that PW7/Vishwa Pal Singh has clearly deposed that the complainant had told him regarding demand of bribe by the accused Bobby and Sudhir Kumar Yadav who were Traffic Police Officials in Lajpat Nagar Circle.
20. In order to prove that the accused had demanded and accepted the bribe amount from the complainant, the prosecution is found to have examined PW11 Sudhir Kumar, complainant, PW17 Vipin Kumar, Panch witness and PW18 Inspector Kailash Chandra, Raid Officer. PW17/Vipin Kumar, Panch witness has clearly deposed before the court that on dated 05.03.2010 he was on duty as a Panch witness in the Anti Corruption Branch and he had gone through the Complaint Ex.PW11/A as written by the complainant Sudhir Kumar regarding demand of bribe of Rs.1,500/ by HC Bobby and he had C.C. No. 12/12 Page No. 19 of 45 signed at point B and complainant had signed at point A. He has also narrated about the PreRaid Proceedings Ex.PW11/B which bears his signature at point B. He further deposed that at about 04:00 p.m. he alongwith the complainant, Raid Officer and other members of the Raiding team left the Anti Corruption Branch in two vehicles and reached near Traffic Police Booth underneath a Flyover of Lajpat Nagar. He further deposed that he alongwith the complainant went towards the said Traffic Police Booth and other members took suitable position. He further deposed that he alongwith the complainant went inside said Police Booth and found both the accused persons present in Police Uniform. Thereafter, when the complainant insisted to give 3 GC Notes of Rs.500/ each to accused Bobby then accused Bobby on touching the said GC Notes, the hands of the complainant was delivered to accused Sudhir Kumar who was sitting alongwith Bobby and thereafter, Sudhir Kumar accepted the said GC Notes and kept in upper pocket of his shirt.
21. Said PW17/Panch witness had further deposed that on his giving predetermined signal, Raid Officer and other members of the Raiding party reached the spot and informed him that the accused Sudhir Kumar had accepted the bribe money. He has also deposed C.C. No. 12/12 Page No. 20 of 45 about the recovery of said 3 GC Notes of Rs.500/ each from the shirt pocket of accused Sudhir Kumar and narrated about the Post Raid Proceedings Ex.PW11/C which bears his signature at point B. Said PW17 further deposed about taking the right hand wash and upper pocket of shirt of accused Sudhir Kumar and right hand wash of accused Bobby in solution of Sodium Carbonate which turned pink and transferring the said solution in six bottles which were sealed with the seal of KC and seizure of the same besides the shirt of the accused Sudhir Kumar vide Seizure Memo Ex.PW11/F. Said PW17 also deposed that the IO arrested the accused Bobby vide Arrest Memo Ex.PW11/H and his Personal Search is Ex.PW11/J and Arrest Memo of accused Sudhir Kumar is Ex.PW11/G and his Personal Search is Ex.PW11/I. Said PW17 has duly identified said 3 GC Notes of Rs. 500/ as recovered from the shirt pocket of accused Sudhir Kumar as Ex.P1 to P3 and 2 bottles Mark RHWI & RHWII containing the right hand was of accused Sudhir as Ex.P4 & P5, 2 bottles Mark RSSPWI & RSSPWII containing the pocket of shirt wash of accused Sudhir as Ex.P6 & P7 and 2 bottles Mark RHWIII & IV containing the right hand was of accused Bobby as Ex.P8 & P9 and the shirt of the accused Sudhir Kumar as Ex.P10.
C.C. No. 12/12 Page No. 21 of 45
Said PW17/Panch witness in the cross examination by Ld. Counsel for the accused Sudhir Kumar Yadav has denied the suggestion that the complainant had offered money to the accused Sudhir Kumar who refused to accept the same and thereafter, complainant tried to thrust money in the pocket of shirt of accused Sudhir Kumar and in the meantime, Raiding team came and apprehended the accused. Similarly, said PW17 has also denied the suggestion of Ld. Counsel for accused Bobby that accused Bobby had no conversation with the complainant or that he has made deliberate improvement in his statement to implicate accused Bobby at the instance of officials of AC Branch. He also denied the suggestion that no Preraid Proceedings were conducted in his presence and nothing was done at the spot.
22. The material part of the deposition of PW17 Panch witness is found corroborated from the deposition of PW18 Inspector Kailash Chandra, Raid Officer. PW 18 Inspector Kailash Chandra, Raid Officer is found to have deposed regarding lodging of the Complaint Ex.PW11/A by the complainant in the presence of Panch witness on dated 05.03.2010 and thereafter, the Preraid proceeding Ex.PW11/B was carried out by him. Said PW18 further deposed that at about C.C. No. 12/12 Page No. 22 of 45 04:10 p.m. he alongwith the complainant, Panch witness and other members of raiding team left Anti Corruption Branch and reached near the Traffic Booth underneath Flyover at Lajpat Nagar. He further deposed that complainant and Panch witness went towards the Traffic Booth and he alongwith members of the Raiding team took suitable position. He further deposed that at about 05:15 p.m. on receiving the predetermined signal given by Panch witness, he alongwith Raiding team reached the spot and Panch witness informed him that the accused Bobby had demanded and accepted the bribe amount of Rs.1,500/ from the complainant in his right hand and thereafter, handed over the same to accused Sudhir who accepted the same with his right hand and kept the same inside right pocket of his Uniform shirt. He also deposed that on his instruction Panch witness recovered the bribe amount of Rs. 1,500/ from the right side pcoket of Uniform shirt of accused Sudhir and on checking, the numbers of the recovered GC notes found tallied with the numbers as noted in preraid report. He also deposed that GC notes were seized vide Seizure Memo Ex.PW11/E bearing his signature at point C. He also deposed about the Postraid proceeding Ex.PW11/C bearing his signature at point C and seizure of the six bottles containing right hand wash and wash of right side pocket of shirt of accused Sudhir C.C. No. 12/12 Page No. 23 of 45 and right hand wash of accused Bobby, shirt Pullanda of accused Sudhir and Sample Seals vide Seizure Memo Ex.PW11/F. He has clearly identified the said recovered GC Notes as Ex.P1 to P3, six sealed bottles Mark RHWI, II, III, IV and RSSPWI & II as Ex.P4 to P9 and shirt of accused Sudhir as Ex.P10.
23. PW11 complainant Sudhir Kumar has also deposed that he had taken the Blue Line Bus bearing no. DL 1PA 5364 on the basis of Power of Attorney from its owner Vishal Pal Singh and said Bus was being plied on Route No. 429 from Mori Gate to Kalkaji DDA Flats through Driver Raj Kumar. He further deposed that on 02.03.2010 said Driver informed him that a Traffic Head Constable alongwith one Constable riding on motorcycle used to stop said Bus between Lajpat Nagar and Okhla Mandi at Garhi Lajpat Nagar Red Light as he used to demand monthly as bribe from the said Bus. He has also deposed regarding lodging of his Complaint Ex.PW11/A to Inspector Kailash Chandra in Anti Corruption Branch in the presence of Panch witness Vipin Kumar, which bears his signature at point A and that of Panch witness at point B and that of Raid Officer at point C. He further deposed that he delivered 3 GC Notes of Rs.500/ each to the Raid Officer and Number of the said GC Notes had noted in the Preraid C.C. No. 12/12 Page No. 24 of 45 Report Ex.PW11/B which bears his signature at point A and that of Panch witness at point B and that of Raid Officer at point C. He also deposed about the Preraid Proceedings Ex.PW11/B. He further deposed that he alongwith Panch witness, Raid Officer and other Members of the Raiding team left Anti Corruption Branch at about 04:10 p.m. and reached near Traffic Booth Lajpat Nagar at about 04:55 p.m. Said PW11/complainant has also deposed regarding Post raid Report Ex.PW11/C which bears his signature at point A and that of Panch witness at point B and that of Raid Officer at point C. He also deposed that Seizure Memo of tainted GC Notes Ex.PW11/E, Seizure Memo of Exhibits, Sample seal and sealed parcel of shirt Ex.PW11/F, Arrest Memo of accused Sudhir Kumar Ex.PW11/G and Arrest Memo of accused Bobby Ex.PW11/H, Personal Search Memo of accused Sudhir Kumar Ex.PW11/I, Personal Search Memo of accused Bobby Ex.PW11/J bears his signature at point A. He has also deposed that IO took the specimen handwriting of his Complaint on 3 pages back to back Ex.PW10/A1 to A3 (colly) and his specimen signature on 3 pages Ex.PW10/A4 to A6 (colly) which bears his signatures at point B. He has also duly identified 3 GC Notes of Rs. 500/ each as Ex.P1 to P3, four sealed bottles containing the right hand washes and right side shirt pocket wash of accused as Ex.P4 to C.C. No. 12/12 Page No. 25 of 45 P9 and shirt of accused Sudhir Yadav as Ex.P10.
24. No doubt PW11/complainant is found to have turned hostile and has not deposed as against the accused persons regarding demand and acceptance of bribe but from the perusal of the record, it is clearly reflected that the Complaint Ex.PW11/A found bear signature of the complainant at point A, signature of PW17 Panch witness at point B and signature of PW18 Raid Officer at point C. Even PW11/ complainant has admitted that he has written said Complaint Ex.PW11/A but in the cross examination by Ld. Defence Counsel has added that said Complaint Ex.PW11/A was written by him on the dictation of Raid Officer. But from the bare perusal of the Complaint Ex.PW11/A, it is clearly reflected that said Complaint was written by the complainant himself and not on the basis of dictation given by the Raid Officer as the Raid Officer had no source of information regarding the content of said Complaint and it was only within the purview of knowledge of the complainant himself. In the said Complaint, there is clear mention regarding demand of bribe of Rs. 1,500/ towards monthly from the complainant as against both the accused persons. Furthermore, from the perusal of the deposition of PW10/Giriraj Singh and PW11/Sudhir Kumar complainant, it is C.C. No. 12/12 Page No. 26 of 45 revealed that the IO had obtained specimen handwriting of complainant of his Complaint on 3 pages back to back ExPW10/A1 to A3 (colly) and specimen signature of complainant on 3 pages Ex.PW10/A4 to A6 (colly) which bear signature of complainant at point B and that of PW10/ Giriraj Singh at point A and that of the IO Inspector V.K. Singh at point C. Furthermore, the FSL Report Ex.PW19/J conclude that "the person who wrote red enclosed writings and signatures, stamped and mark S1 to S9 also wrote the red enclosed writings and signature similarly stamped and mark Q1 to Q3." Thus, the said FSL Report establish that the Complaint Ex.PW11/A is in the handwriting of complainant and bears his signature at point A and I do not see any reason to disbelieve the same specifically when the complainant had no previous enmity as against the accused persons.
25. No doubt said PW11 complainant Sudhir Kumar is found to have turned hostile on certain aspects but from the perusal of the record, it is clearly reflected that the Raid Officer, PW18 has drawn the Post Raid Proceedings Ex.PW11/C which found bear the signature of the PW11 complainant at point A and that of PW17 Panch witness at point B and that of PW18 Raid Officer at point C. C.C. No. 12/12 Page No. 27 of 45
26. I am of the considered view that said Post Raid Proceedings Ex.PW11/C being in the nature of Panchnama which is duly signed by the complainant and Panch witness is duly admissible and reference can be made to the case of Santa Singh vs. State of Punjab AIR 1956 Supreme Court 526 wherein it was held that mere presence of the police officer when a statement is made does not by itself render such a statement inadmissible. So long as a panchnama is a mere record of the things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him and it would not fall within the mischief of section 162 of the Code.
27. From the perusal of the said Post Raid Proceedings Ex.PW11/C, it is clearly reflected that the accused Bobby had demanded and accepted the bribe amount of Rs.1,500/ from the complainant and immediately handed over the same to the accused Sudhir Kumar Yadav who was standing alongwith accused Bobby and said accused Sudhir Kumar Yadav kept the said amount in the right upper pocket of his Uniform shirt from which said amount has been recovered by the Panch witness and the serial number of those 3 GC Notes of Rs.500/ each found tallied with the serial number as C.C. No. 12/12 Page No. 28 of 45 mentioned in the Preraid Proceedings Ex.PW11/B and said recovered 3 GC Notes were seized vide Seizure Memo Ex.PW11/E.
28. It is also revealed from the record that the right hand wash and right shirt pocket wash of accused Sudhir Kumar Yadav and right hand wash of accused Bobby with colourless solution of sodium carbonate were taken and the same turned into pink colour and said wash vide Ex.RHWI, RHWIII and RSSPWI have given positive test for the presence of phenolphthalein and sodium carbonate as per FSL Report Ex.PW19/A which establish that the said treated 3 GC Notes of Rs.500/ each were handled and accepted by the accused persons.
29. I do not find any force in the submission of Ld. Defence Counsel to the effect that since PW11 complainant and PW17 Panch witness have turned hostile and therefore, their deposition cannot be considered at all. In the Judgment reported as AIR 1991 SC 1853 Khujji @ Surender Tiwari vs. State of M.P., it was observed as under: Para 6: ".................................... Counsel for the State is right when he submits that the evidence of a witness, C.C. No. 12/12 Page No. 29 of 45 declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this court "Bhagwan Singh vs. State of Haryana (1976) 2 SCR 921 : (AIR 1976 SC 202):
Rabinder Kumar Dey vs. State of Orissa, (1976) 4 SCC 233 :(AIR 1977 SC 170) and Syed Akbar v. State of Karnataka, (1980) 1 SCR 95: (AIR 1979 SC 1848) that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two eye witnesses was challenged by the prosecution in crossexamination because they refused to name the accused in the dock as the assailants of the deceased. We are in agreement with the submission of the learned counsel for the State that the trial Court made."C.C. No. 12/12 Page No. 30 of 45
30. During the course of the argument, it is submitted by Ld. Counsel for the accused Sudhir Kumar Yadav that as there is no allegation for demand of bribe as against this accused Sudhir and therefore, mere recovery in the absence of any demand of bribe cannot establish the charged offence as against this accused Sudhir. It is well settled that the offence of criminal conspiracy as contemplated in U/S 120A IPC and as punishable under Section 120B IPC is generally hatched in secrecy and privacy and direct evidence in this respect is not required as inference from the attending circumstances validly permissible in this respect. From the perusal of the case record, it is reflected that both the accused were posted in Lajpat Nagar Traffic Circle during the relevant period. From the perusal of Complaint Ex.PW11/A, it is also reflected that both these accused riding on Motorcycle used to stop the Bus of the complainant near Garhi, Lajpat Nagar Red Light and used to demand monthly as bribe for plying the said Bus and said fact has been stated to the complainant by his Driver Raj Kumar on 02.03.2010, which is even found corroborated from the deposition of PW11 complainant in this respect. It is further revealed from the said Complaint Ex.PW11/A that again on 04.03.2010 both these accused riding on Motorcycle had stopped the Bus of the complainant at Garhi TPoint and had C.C. No. 12/12 Page No. 31 of 45 demanded Rs.1,500/ as bribe towards monthly from the complainant and asked him to deliver said amount on 05.03.2010 between 05:00 to 06:00 p.m. to them at Traffic Booth Lajpat Nagar. It is further revealed from the Postraid Proceeding Ex.PW11/C that on dated 05.03.2010 at about 05:15 p.m. at Traffic Booth Lajpat Nagar the accused Bobby had demanded and accepted the bribe amount of Rs. 1,500/ from the complainant and immediately handed over the same to the accused Sudhir Kumar Yadav, who was standing alongwith accused Bobby and said accused Sudhir Kumar Yadav kept said bribe amount in the right upper pocket of his Uniform shirt, from which said amount of bribe has been recovered at the spot itself.
31. In view of the above material as available on record, I am of the considered view that the factum regarding the demand and acceptance of bribe of Rs.1,500/ by both the accused persons in pursuance of their criminal conspiracy from the complainant have been found established from the deposition of PW11 complainant, PW17 Panch witness, PW18 Raid Officer coupled with the content of Complaint Ex.PW11/A, Seizure Memo of the GC Notes Ex.PW11/E, Seizure Memo of six bottles marked as Ex.RHWI, II, III, IV and RSSPWI & II, shirt pullanda of accused Sudhir Kumar and sample C.C. No. 12/12 Page No. 32 of 45 seal vide Ex.PW11/L, Post Raid Proceedings Ex.PW11/C and FSL Report Ex.PW19/A.
32. During the course of the argument, it is submitted by Ld. Counsel for the accused persons that PW14 Raj Kumar Sharma, Bus Driver of the complainant has not deposed anything regarding initial demand of bribe from him as against the accused persons and same establish the innocence of the accused persons. From the perusal of the record, it is reflected that no doubt PW14 Raj Kumar Sharma, Bus Driver of the complainant by turning hostile has denied the fact regarding demand of bribe towards monthly for plying of said Bus of complainant on Route No. 429 as against the accused persons and he denied to have informed the said facts to the complainant on 02.03.2010. But said stand of PW14 Raj Kumar Sharma is found falsified from the deposition of PW11 complainant as well as from the contents of the complaint Ex.PW11/A, from which it is clearly reflected that both the accused persons riding on Motorcycle used to stop the Bus of the complainant near Garhi, Lajpat Nagar Red Light and used to demand monthly as bribe for plying of said Bus and said facts were informed to the complainant by his Driver Raj Kumar on 02.03.2010. In view of the aforesaid material as available on the C.C. No. 12/12 Page No. 33 of 45 record, I do not find any force in the submission of Ld. Counsel for the accused persons in this respect.
33. During the course of the argument, it is also submitted by Ld. Counsel for the accused persons that PW17 Vipin Kumar, Panch witness has admitted in his cross examination that he had joined duty in several raid cases and therefore, he cannot be treated as an independent witness and his deposition cannot be considered as reliable. From the perusal of the deposition of PW17 Vipin Kumar, it is reflected that in his cross examination, he has added that he attended Anti Corruption Branch many times as per his duty roll and had joined investigation in some cases. I cannot lost sight of the fact that said PW17 Vipin Kumar is a Public Servant and has joined duty as Panch witness in Anti Corruption Branch as per the Duty Roaster of the Panch witness as prepared officially and not as per his sweet will. Therefore, mere fact that he has joined duty as Panch witness in some more cases earlier cannot be treated as stigma for throwing out his deposition from the range of consideration and in view of the same, I do not find any force in the submission of Ld. Counsel for the accused persons in this respect.
C.C. No. 12/12 Page No. 34 of 45
34. During the course of argument, it is submitted by Ld. Counsel for the accused Bobby that PW11 complainant has admitted in his cross examination that Complaint Ex.PW11/A was written by him on the dictation of Raid Officer and therefore, the same cannot be considered as against the accused. From the perusal of the record, it is reflected that PW11 complainant Sudhir Kumar has deposed that he had gone to Anti Corruption Branch and has given his Complaint Ex.PW11/A in the presence of Vipin Kumar Panch witness and said Complaint bears his signature at point A and signature of Panch witness at point B and signature of Raid Officer at point C. Even PW11 complainant has admitted that he had written said Complaint Ex.PW11/A but said complainant is found to have turned hostile and in the cross examination by Ld. Defence Counsel has added that said Complaint Ex.PW11/A was written by him on the dictation of Raid Officer. But from the bare perusal of of said Complaint Ex.PW11/A, it is clearly reflected that said Complaint was written by the complainant himself and not on the basis of dictation given by the Raid Officer as Raid Officer has no source of information regarding the contents of said Complaint and it was only within the purview of the knowledge of the complainant himself. Furthermore, said fact is also found corroborated from the deposition of PW17 Vipin Kumar, C.C. No. 12/12 Page No. 35 of 45 Panch witness in whose presence the complainant himself had written the said Complaint and after going through the same, said Panch witness had signed the same at point B. In view of the same, I do not find any force in the submission of Ld. Counsel for the accused Bobby in this respect.
35. During the course of the argument, it is submitted by Ld. Counsel for accused Bobby that PW11 complainant in his cross examination has stated that the Police Officials were caught hold in the said Booth by Raiding Party by their fists, which explained the reason for changing of the hand wash of accused to pink colour and therefore, the same cannot be read as against the accused. I do not find any force in the submission of Ld. Counsel for accused Bobby in this respect, in view of the fact that the accused persons have not taken such plea in their Statement U/S 313 Cr.P.C. nor their is any explanation by the accused persons as to why the wash of right upper pocket of the shirt of accused Sudhir Kumar Yadav has changed to pink colour and why the bottle Mark RSSPWI containing said wash given positive test for presence of phenolphthalein and sodium carbonate as per FSL Report Ex.PW19/A. C.C. No. 12/12 Page No. 36 of 45
36. During the course of argument, it is submitted by Ld. Counsel for accused Sudhir that the accused Sudhir was posted on duty on 05.03.2010 at Lal Sahi Market, Ring Road as per Chitha Ex.PW9/A, which was not at Bus Route No. 429 and therefore, there was no occasion on the part of this accused to demand any bribe from the complainant for plying his Bus. No doubt from the perusal of Duty Roaster of Lajpat Nagar Circle dated 05.03.2010 Ex.PW9/A, it is reflected that on that day accused Bobby was assigned duty at Captain Gaur Marg, Ring Road and accused Sudhir was assigned duty as Lal Sahi Market at Ring Road but it is also revealed from said Duty Roaster Ex.PW9/A that both said accused were assigned duty in Lajpat Nagar Circle bearing point LNC8. Furthermore, from the perusal of the Complaint Ex.PW11/A, it is clearly reflected that on 04.03.2010 both these accused on riding on a Motorcycle had stopped the Bus of the complainant at Garhi TPoint and demanded the bribe amount of Rs.1,500/ towards monthly from the complainant for plying of his Bus on said Route and asked him to deliver said amount to them on 05.03.2010 between 05:00 to 06:00 p.m. at Traffic Booth Lajpat Nagar.
37. Besides this, law is well settled that it does not matter C.C. No. 12/12 Page No. 37 of 45 whether the public servant was competent to do the work or not and reference can be placed in the case reported as Chaturdas Bhagwandas Patel Vs. State of Gujrat, 1976(3) SCC 46 as referred in State of Andhra Pradesh Vs. C. Uma Maheshwar Rao and Anr. 2004, V AD (SC) 176, wherein it has been held by Hon'ble Supreme Court of India that the question whether a person has an authority to do the act for which bribe is accepted, is of no consequence. In the case reported as Gopal Singh Vs. CBI, ILR (2005) II Delhi 35, It was observed by the Hon'ble Delhi High Court in Para 22 as under: "It has to be added that in cases under PC Act, the prosecution is under no obligation to prove that a public servant demanding bribe was in a position to help the person from whom the bribe was being demanded. The prosecution succeed the moment it is shown that a public servant had accepted some money from someone which was not legal remuneration. The presumption U/S 20 of the Act comes into play shifting the burden upon the public servant to explain as to why he had received the money. A public servant may misguide, mislead or befool his victim to pay him illegal gratification knowing C.C. No. 12/12 Page No. 38 of 45 fully well that he is not in a position to help him and as such it can be no defence for him to say that since he was not in a position to help the complainant/victim the money received by him does not amount to illegal gratification."
38. During the course of argument, it is submitted by Ld. Counsel for the accused Sudhir Kumar that PW17 Panch witness has given contradictory deposition as regards the person who recovered the bribe money from the accused as in his examinationinchief he deposed that one of the member of the Raiding team recovered said 3 GC Notes of Rs.500/ each but in the cross examination by Ld.Addl. PP he deposed that he recovered 3 GC Notes of Rs.500/ each from accused Sudhir which are contradictory in nature and hence, his deposition cannot be treated as trustworthy. No doubt from the perusal of the deposition of PW17 Vipin Kumar, Panch witness it is revealed that in his examinationinchief he has deposed one of the member of the Raiding team had taken out 3 GC Notes of Rs.500/ each from the shirt pocket of accused Sudhir Kumar. But in the cross examination by Ld. Addl. PP he has deposed that he conducted the search of both the accused persons and from search of accused Sudhir C.C. No. 12/12 Page No. 39 of 45 Kumar Yadav 3 GC Notes of Rs.500/ were recovered from the pocket of uniform shirt of accused Sudhir Kumar. Both part of said deposition of PW17 Panch witness cannot be treated as contradictory as PW17 Panch witness is also a member of the Raiding team and it establish that tainted 3 GC Notes of Rs.500/ each were recovered from the shirt pocket of accused Sudhir Kumar. Furthermore, the fact that said PW17 has given his deposition in the court on 03.04.2012, which is after more than two years of the date of incident and therefore, minor variation in his deposition cannot be overemphasized. My said view is also found supported from the Law laid down by Hon'ble Supreme Court of India regarding contradictions in case of Bharuda Broginbhai Harjibhai V/s State of Gujrat AIR 1983 SC 753, wherein it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Furthermore, in the case reported as Krishna Pillai Sree Kumar Vs. State of Kerala, AIR 1981 SC 1237, it has been held that Inconsistencies here and discrepancies there are the shortcoming from which no criminal case is free. The main thing to be seen is whether the inconsistencies etc. go the root of the matter. C.C. No. 12/12 Page No. 40 of 45
39. I also do not find any force in the submission of Ld. Counsel for the accused Sudhir Kumar Yadav that the mere recovery of the treated GC Notes as against the accused Sudhir Kumar Yadav is not sufficient to convict the accused for the charged offence. Once the accused is found to have accepted the bribe amount, it is for him to explain as to in which capacity he has accepted the same.
40. Three Judges Bench of Hon'ble Supreme Court in the case reported as Raughbir Singh V/s State of Punjab AIR 1974 SC 1516 held that very fact that the accused was in possession of marked currency notes against an allegation that he demanded and received the amount is "res ipsaloquitur".
41. In the case of Dhanvantrai Balwantrai Desai V/s State of Maharashtra, AIR 1964 Supreme Court 575 it was held as under:
"Therefore, the court has no choice in the matter, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration, it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The C.C. No. 12/12 Page No. 41 of 45 burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occurs in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a mere explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
42. Furthermore, it is also useful to refer to the decision of Hon'ble Supreme Court in case of M.Narsinga Rao V/s State of A.P. 2001 (1) SCC 691 rendered by Three Hon'ble Judges of Supreme Court. In that case accused demanded a bribe of Rs. 500/ from a milk transporting contractor for recommending the payment of an amount due to the contractor. The accused was caught red handed while accepting the bribe amount. Accused took the plea that currency notes were stuffed into his pocket. During trial complainant and panch C.C. No. 12/12 Page No. 42 of 45 witness did not support the prosecution case and it was argued before Hon'ble High Court that it is not possible to draw any presumption against the delinquent public servant in the absence of direct evidence to show that the public servant demand bribe. The Hon'ble High Court held as under: "It is true that there is no direct evidence in this case that the accused demanded and accepted the money. But the rest of the evidence and the circumstances are sufficient to establish that the accused had accepted the amount and that gives rise to a presumption under Section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth is not accepted."
43. Furthermore, in another case reported as B. Noha V/s State of Kerela & Another 2006 VI AD ( Criminal ) 465 ( SC ) it was held in para 10 as under: "that when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deducted from the facts and circumstances obtained in the particular case." C.C. No. 12/12 Page No. 43 of 45 Moreover, in another case reported as State of AP Vs. Kommaraju Gopala Krishna Murthy 2000 (9) SCC 752 it was held that when the amount is found to have passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused herein.
44. Once the bribe amount is recovered from the accused it is for the accused to explain as to how the bribe amount landed in his person. In the present case, the accused Sudhir Kumar Yadav has not given any explanation as to how bribe amount of Rs.1,500/ landed in his right shirt pocket from which it was recovered. From the perusal of the record it is clearly reflected that the accused has neither stated anything in his statement U/S 313 Cr.P.C. as to how the bribe amount landed in his right shirt pocket. The accused could neither state as to why his right hand wash Ex.RHWI and right shirt pocket wash Ex.RSSPWI have given positive test for the presence of phenolphthalein and sodium carbonate as found established from the contents of the FSL Report Ex.PW19/A.
45. In view of the aforesaid materials as available on the record, I am of the considered view that the presumption as contemplated U/S C.C. No. 12/12 Page No. 44 of 45 20 of the Prevention of Corruption Act,1988 could not be rebutted by the accused Sudhir Kumar Yadav.
46. The net result of the aforesaid discussion is that the prosecution has been successful in establishing its case as against both the accused persons for the charged offence. Hence, both the accused namely Bobby and Sudhir Kumar Yadav stand convicted for offence punishable U/S 7 of Prevention of Corruption Act, 1988 r/w Section 120B IPC and U/S 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 r/w Section 120B IPC.
47. Let both these accused persons be heard separately on the point of sentence.
Announced in the open court on this 17th day of October, 2012 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi C.C. No. 12/12 Page No. 45 of 45