Rajinder Kumar v. C.B.I.

12.3. It was also submitted that the prosecution case cannot be discarded merely because some of the witnesses have turned hostile and that even if a witness resiles from his earlier statement, the court is not bound to reject his testimony in toto and may rely upon such other part of his testimony which is found to be credible and consistent with the prosecution case as held in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220.

13. Heard both sides and perused the records.

14. The only point that arises for consideration in the present appeal is whether there is any infirmity in the impugned judgment calling for an interference by this Court.

15. I shall first briefly refer to the evidence on record relied on by the prosecution in support of the case. The initial demand in this case is alleged to have taken place on 01.08.1994 and the trap laid on 08.08.1994. PW[1] submitted a written complaint, that is, Exhibit PW1/B on 08.08.1994 in the office of the Anti-Corruption Branch in which he has stated thus:- “…an electricity meter, number 6051021, is installed at my house, 6/363 Khichripur, Delhi-91. The meter reading for our electricity consumption up to September 1993 was 4040 units, and its payment was made on 04- 10-1993. After this, another bill came, which we also paid. Then after this, one more bill came which we also paid, but due to the payment receipt being lost somewhere, I am unable to provide its full details.After this, a consumption bill of 4449 units for ₹8834/was received for the electricity consumed up to April 1994. This bill is completely incorrect. Therefore, we submitted a written complaint for the correction of the bill at the Radhu Palace office of DESU on the 25th of last month (25-07-94). I made several visits to the Radhu Palace office for the correction of the bill, but the bill could not be corrected. On 01.08.1994, I met Mr. Rajendra Kumar, Dealing Clerk, at the DESU office. He told me that if the bill needs to be corrected, then I have to give ₹800/- for it. I pleaded with him that I would not be able to give that much money. Then Mr. Rajendra Kumar said that I would have to give at least ₹500/-. He has called me to the DESU office on Monday with ₹500/- and has asked me to come before lunch. I do not want to give a bribe to Mr. Rajendra Kumar. Therefore, it is requested that legal action be taken against him.”

16. PW[1], in his examination-in-chief before the trial court on 06.08.1997 fully supported the prosecution case. On the said day, the cross examination of PW[1] was adjourned at the request of the defence counsel on the ground that he was not feeling well. However, when PW[1] was recalled and cross examined on 08.12.1999, he turned hostile and deposed against the prosecution case.

16.1. PW[1] in his cross examination, deposed that initially he had met PW[6] to protest regarding the excessive electricity bill. PW[6] assured him that the bill would be corrected. Thereafter, PW[6] took him to the residence of a CBI officer whom the former addressed as “Ram Saheb”. On the next day, PW[6] accompanied him to the office of DESU at Nehru Place and introduced him to H.K. Rathore (PW[8]) and one Aggarwal. The said officials made endorsements on his Ext. 1/A protestapplication. When he went to the office of the CBI to lodge Ext. PW1/B complaint, he was accompanied by PW[6] and it was PW[6] who took him to the room of the SP, CBI. He had already prepared a written complaint against one Raj Kumar. PW[6] gave him ₹500/- to be used in the trap. The CBI officials after treating the said note with Phenolphthalein powder, gave it to him. On the day of the trap after reaching the office of DESU, he first shook hands with A[1] and thereafter with Raj Kumar. A[1] corrected the bill and handed it over to him for getting the signature of PW[6] and the Superintendent. After correction of the bill, Raj Kumar asked him whether he had brought the money to which he replied in the affirmative. According to him, A[1] did not demand any bribe from him. When he came out of the office, Raj Kumar told him “Chotupaankhila de”, upon which he went to A[2], the paan vendor, and handed over the tainted ₹ 500/- to him at the instance of Raj Kumar and not at the instance of A[1]. PW[1] further deposed that on said day the CBI had arrested three persons, namely, A[1], A[2] and Raj Kumar. PW[6] also followed them to the office of the CBI. In the office of the CBI, at the instance of PW[6], his original complaint was replaced and he was made to write Ex. PW1/B complaint against A[1]. He also deposed that both A[1] and Raj Kumar were beaten in the office of the CBI and thereafter in his presence Raj Kumar was released. He was instructed by the CBI officers to depose in accordance with his statement under Section 161 Cr.P.C. and not to mention anything against Raj Kumar or PW[6]. As PW[1] did not support the prosecution case in the cross examination, the prosecutor sought the permission of the trial court to “cross-examine” PW[1]. The request was allowed by the trial court.

16.2. On further examination by the prosecutor, PW[1] reiterated his case in the cross examination. When he reached the office of DESU Office near Radhu Place, Raj Kumar was already sitting near the seat of A[1]. He first spoke to A[1] and thereafter to Raj Kumar who told him that the bill would be corrected by A[1]. PW[1] denied that A[1] had asked him whether he had brought the money and maintained that it was Raj Kumar who had spoken to him regarding the money. PW[1] also denied that he had handed over the tainted money to A[2] at the instance of A[1] and maintained that the money was given at the instance of Raj Kumar.PW[1] also deposed that the hand wash of A[1] did not change colour, whereas the hand wash of accused A[2] turned pink. Finally, PW[1] also deposed that he was coming out with the truth as the CBI was trying to get an innocent person convicted.

17. PW[4],the recovery witness, deposed that on 08.08.1994, on the directions of his Chief Manager he went to the office of the CBI at about 8.00 A.M. PW[5], Deputy Manager, also accompanied him. PW[4] deposed about the pre-trap proceedings. After completion of the pre trap proceedings at the office of the CBI, the party left at about 10.00 A.M. in official vehicles and reached near the office of DESU at Radhu Cinema. The members of the raiding party took positions at different places within the boundary of the office of DESU. PW[1] and PW[5],the shadow witness, were directed to go inside the office and contact A[1].PW[4] deposed that he took position near the gate of the room of A[1] from where he could see the interior of the room where A[1] was sitting. PW[1] and PW[5] remained in the office of A[1] for about two hours while the bill was being corrected. At about 1.00 or 1.30 P.M., during lunch hours, A[1] came downstairs along with PW[1] and PW[5] and he followed them. He noticed PW[1] handing over money to A[2], the paan vendor, sitting on the pavement. However, PW[4] was unable to identify the said paan vendor in the Court. He further deposed that before the signal was given by PW[5], A[2], after accepting the money, had passed it on to A[1]. The members of the raiding party rushed to the spot and apprehended A[1] and A[2]. According to PW[4], both A[1] and A[2] protested and asked the reason for their apprehension, whereupon PW10, the TLO disclosed his identity and confronted them for having accepted the bribe. A[1] denied having taken any bribe and tried to free himself and called for his colleagues. PW10 then searched A[1] and recovered the tainted currency notes from the shirt pocket of A[1]. At this juncture, the prosecutor sought the permission of the trial court to “crossexamine” PW[4] on the ground that he was suppressing the truth and had resiled from his previous statement. The request was allowed by the trial court.

17.1. On further examination by the prosecutor, PW[4] deposed that he could not recollect the face of the paanwala and therefore could not admit or deny whether A[2] in the Court was the same person who had received the money from PW[1] and passed it on to A[1]. He also deposed that he could not recall whether A[1] had thrown the tainted money on the ground in his presence or whether he himself had picked up the tainted currency notes on the directions of PW10. PW[4] admitted that the right hand wash of A[1] was taken at the spot and that it turned pink. PW[4] further deposed that the left hand wash of A[1] was also taken, though he could not recollect whether it was plain water or sodium carbonate solution, or whether the colour of the solution had changed.

18. PW[5], the shadow witness, deposed that he was directed by his Chief Manager to attend the office of the CBI in the morning of 08.08.1994. Therefore, on 08.08.1994 he reported at the said Office at about 8.00 AM. along with PW[4]. He deposed about the pre-trap proceedings. PW[5] deposed that after completion of the pre-raid proceedings, the raiding party left for the office of DESU near Radhu Cinema in two jeeps and reached there at about

10.00 A.M. The vehicles were parked opposite Radhu Palace at a distance of about one furlong. Thereafter, he along with PW[1] went inside the office to the room of A[1], while the other members of the raiding party remained outside in the surrounding area. When they entered the office, PW[1] told A[1], “Merakaamkardijye,” to which A[1] replied that the former should wait as it would take some time. After some time, A[1] said that it was about lunch time and asked them to go downstairs, saying that there was a paan vendor there and that he would join them shortly. So he and PW[1] left the room and A[1] followed them. The office of A[1] is on the first floor and so all of them came downstairs and proceeded towards the paan counter near Radhu Palace Cinema. He did not hear A[1] asking PW[1] to give the money to the paan vendor. However, on the way PW[1] told him that the money was to be given to the paan vendor. According to PW[5], on reaching the paan counter, PW[1] handed over the tainted currency note of ₹500/- to A[2], the paan vendor, whom PW[5] identified in the Court. In the meantime, A[1] also reached there and took a paan from A[2], and while giving the paan, A[2] passed on the tainted currency of ₹ 500/- to A[1].At this juncture, the prosecutor sought the permission of the trial court to “crossexamine” PW[5] on the ground that he was resiling from his previous statement and suppressing the truth. The request was allowed by the trial court.

18.1. During further examination by the prosecutor, PW[5] supported the prosecution version.

18.2. In the cross examination, PW[5] admitted that three persons had been arrested by the CBI and taken to the office of the CBI. Two of them were accused A[1] and A[2]. PW[5] was unable to recollect whether the third person was Raj Kumar. He further deposed that he had accompanied the team from the spot to the office of the CBI and remained there for about one hour, during which time the third person was also present. PW[5] further deposed that he could not recollect whether PW[6] had come to the office of the CBI requesting the release of Raj Kumar.

19. PW[6] K.L. Mewal, Recovery Officer, District Office, DESU, Mayur Vihar, also officiating as Assistant Finance Officer, deposed that in August 1994, A[1] was working as Junior Clerk cum Typist in the office and was responsible for issuing bills, maintaining DESU ledgers, and carrying out bill rectifications. He deposed that Ext. PW1/C electricity bill was initially issued for ₹ 8,834/-. The bill was later rectified to ₹ 132/-. PW[6] in his cross examination admitted that PW[8], R.C. Rathore, Finance Officer, was his immediate superior and that A[1] was the nephew of the latter. According to PW[6], his relations with PW[8] was not “very cordial nor even bad”. PW[6] admitted that Ex. PW6/D[1] to D4memos had been issued to him by PW[8].

20. PW[8], R.L. Rathore, deposed that, in 1994 he was posted as Finance Officer, DESU, Karkardooma. He had seen Ext. PW8/A application of PW[1], which he had marked to PW[6], the Assistant Finance Officer. A[1] at the relevant time was working as Billing Assistant in DESU. PW[8], in his cross examination, deposed that at the relevant time he did not have cordial relations with PW[6]. According to PW[8], PW[6] was the Officer in-charge of A[1]. As he and PW[6] were not on cordial terms, there was considerable correspondence between them condemning each other. PW[8] admitted that he had called for about 150 to 200 explanations from PW[6]. PW[8] further deposed that on 08.08.1994 at about 3.30 PM, PW[6] telephoned and told him that although the latter could not harm him, he had managed to harm his sister’s son (bhanja). According to PW[8], A1is his sister’s son.

21. PW10, the Trap Laying Officer, (the TLO) when examined fully supported the prosecution case.

22. The testimony of the aforesaid witnesses is mainly relied on by the prosecution to prove the demand and acceptance of the bribe by A1/the appellant herein. Now the primary question to be addressed is whether the prosecution has succeeded in establishing its case against A[1] that he had sought illegal gratification to perform a specific act while discharging his official duty, thereby attracting the offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the PC Act. It is a well settled position of law that the offer by the bribe giver and the demand by the public servant have to be proved by the prosecution as a fact in issue for conviction under Sections 7 and 13(1)(d) of the PC Act. Mere acceptance of illegal gratification without proof of offer by the bribe giver and demand by the public servant would not constitute an offence under Sections 7 and 13(1)(d)(i) and (ii) of the PC Act, as held by the Hon’ble Apex Court in Neeraj Dutta v. State (Government of NCT of Delhi)(2023) 4 SCC 731.

23. The learned prosecutor is certainly right in arguing that merely because a witness turns hostile, that would not mean that his entire evidence is liable to be discarded. The Court certainly can accept that part of his testimony which is reliable and inspires confidence in the mind of the court to arrive at a conclusion regarding the guilt of the accused.

24. In the case on hand, as stated earlier, PW-1 fully supported the prosecution case while he was examined in chief. However, he turned completely hostile when he was crossexamined before the trial court after a gap of more than 02 years. As noticed earlier, the cross-examination was adjourned at the request of the defence counsel on the ground of his illness. Even if the reason cited for adjournment was true and the matter adjourned, the trial court should have taken up the case for crossexamination immediately on the next day or on the earliest possible date. Because of the long gap in the cross-examination, as rightly submitted by the learned prosecutor, there was every possibility / chances of PW[1] being won over by the accused.

25. Here I refer to the dictum in M. Narsinga Rao (supra) relied on by the learned prosecutor to substantiate the argument that despite PW[1] turning hostile, the Court can rely on the remaining evidence on record and conclude regarding the guilt of the accused. In M. Narsinga Rao (supra)the appellant, therein, Manager of a Milk Chilling Centre attached to Andhra Pradesh Dairy Development Corporation Federation was alleged to have received bribe from a milk transporting contractor for recommending the payment of an amount due to the latter. Pursuant to a complaint being made, the trap was laidand the appellant was caught red-handed and the tainted currency notes were recovered from his pocket. The trial commenced after four long years. During the trial, the main prosecution witnesses turned hostile and did not support the prosecution case. The appellant took up a defence that one “K” had orchestrated a false trap against him by employing PW[1] and PW[2] therein and that the tainted currency notes had been forcibly stuffed into his pocket. The trial court convicted the appellant under Sections 7 and 13(2) read with section 13(1)(d) of the PC Act, which was upheld by the High Court. The High Court held that even in the absence of direct evidence, the rest of the evidence and circumstances were sufficient to establish that the accused had accepted the amount and that it gave rise to a presumption under Section 20 of the PC Act that he had accepted the same as illegal gratification. When the matter came up before the Hon’ble Supreme Court, the appellant contended that the presumption under Section 20 of the PC Act could be drawn only when acceptance or obtaining of gratification was established by direct evidence and not on the basis of an inference to that effect. It was contended that unless the prosecution proved that what was paid amounted to gratification, the mere handing over of some currency notes to the public servant would not be sufficient to make the same as an acceptance of gratification.

25.1. Rejecting the above said contention, it was held by the Apex Court that when Section 20(1) of the PC Act deals with legal presumption, it is to be understood as in terrorem, i.e. in the tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the Section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during the trial, it should be proved that the accused had accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. The word “proof”, needs to be understood in the sense in which it is defined in the Evidence Act. What is required by the definition of the word “proof” is the production of such materials on which the Court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him.

25.2. After referring to the law on the point, the Apex Court observed that from the materials on record, it was clear that when the appellant was caught red handed with the currency notes, he never demurred to the trap laying officer that those notes had not been received by him. The story that the currency notes were stuffed into his pocket was found to have been concocted by the appellant only after lapse of about 4 years and that too when the appellant faced trial in the Court. Though the silence of the accused/appellant by itself may not or need not necessarily lead to the presumption that he accepted the amount from somebody else, the other circumstances which were proved in the case and those preceding and succeeding the searching out of the tainted currency notes were found to be relevant and useful to help the Court to draw a factual presumption that the appellant therein had willingly received the currency notes. From the proved facts of the said case, it was held that the Court could legitimately draw a presumption that the appellant received or accepted the said currency notes on his own volition. It was also held that the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence.

26. Coming to the case on hand, unlike in M. Narsinga Rao (supra), the appellant/A[1] herein did protest when he was apprehended by the TLO and claimed to be innocent. This is spoken to by PW[4], the shadow witness. Further, the appellant/A1in his defence has taken up a plea of false implication at the instance of PW[6]. This defence is probabilised by the testimony of PW[8], a loyal prosecution witness to whose testimony, I have already referred to. According to PW[8], PW[6] (K.L. Mewal) was the officerin-charge of A[1]. PW[8] also deposed that his relation with PW[6] was not cordial and that it was quite strained. PW[8] further deposed thus:- “...........On 08.08.1994 K.L. Mewal talked with me on telephone. His telephone call came at around 03:30 p.m. He informed me that though he could not harm me, but he has managed to harm my sister’s son (Bhanja). My said Bhanja is accused Rajinder Kumar, present in Court..........”

26.1. This testimony of PW[8] was never clarified by the prosecutor in the re-examination. Therefore, the defence plea that there was enmity between PW[8] and PW[6] and that PW[6] due to this enmity had harmed A[1], his junior officer and close relative of PW[8] stands probabilised by the testimony of PW[8], a loyal prosecution witness.

27. This testimony of PW[8] coupled with the testimony of PW[5], does raise doubts in the mind of the Court. PW[5] admitted that three persons had been arrested on the day by the CBI. It is true that PW[5] did not specifically say that it was Raj Kumar who had been arrested by the CBI. On the other hand, he deposed that three persons had been arrested by the CBI, two of them being A[1] and A[2]. PW[5] in the cross examination did not deny the fact that the third person was Raj Kumar. On the other hand, he only feigned ignorance/ lack of memory. It was pointed out by the learned counsel for the appellant/A[1] that the said Raj Kumar is one of the witnesses in the final report, but the prosecution deliberately did not examine the said witness before the Court.

28. On a perusal of the final report/charge sheet, I find that charge witness No.5 is described as“Raj Kumar Pal, S/o Sh. Kalu Ram, Junior Clerk cum Compotist, DESU, Radha Place, New Delhi-92.” The materials on record do not show as to why this witness was not examined by the prosecutor. It is true that it is the prerogative of the prosecutor to decide who among the persons in the list of witnesses needs to be examined. But here is a case where one of the prosecution witnesses himself admit regarding the arrest of a third person in addition to A[1] and A[2]. PW[1] says that the third person arrested was Raj Kumar (CW[5]). Though CW[5] has been arrayed as a witness in the chargesheet, for reasons best known to the prosecution has not been examined.

29. The learned prosecutor then submitted that when the Investigating Officer was cross examined, he was never asked regarding the arrest of a third person. If actually a third person had been arrested as argued on behalf of the defence, it was pointed out then it was their duty to have brought out necessary clarification through the testimony of the Investigating Officer. I am unable to agree to this argument. The defence was able to get certain incriminating answers from PW[5], which version is supported by PW[1], their own star witness. In such circumstances, the defence would never question the Investigating Officer to get any clarification of the point. The burden was always on the prosecution to prove the case beyond reasonable doubt. On the other hand, the burden of the accused is only to put forward a preponderance of probabilities regarding the defence version, which they have succeeded in doing by bringing in answers through the testimony of the prosecution witnesses itself.

30. I also specifically refer to the statement made by PW[1] towards the end of his deposition which reads thus:- “...............It is incorrect to suggest that on 6-5-97, I gave correct version pertaining to this case. Because CBI is trying to get an innocent person convicted, today I have come out with the truth. It is wrong to suggest that I have been deposed falsely as I have been won over by the accused.” (Emphasis supplied)

31. If the CBI was deliberately trying to implicate an innocent person, question certainly arises as to why PW[1] spoke in support of the prosecution case in the examination-in-chief. “Wisdom” seems to have dawned on him quite late. Be that as it may, the defence version that A[1] has been falsely implicated at the behest of PW[6] has been probabilised by the version of PW[8], a loyal prosecution witness. The testimony of PW[8] when read along with the testimony of PW[1] and PW[5] raise doubts in the mind of the court regarding the prosecution case. That being the position, this Court is unable to find that the evidence on record is satisfactory to prove the prosecution case beyond reasonable doubt. Had it been only PW[1] who had turned hostile and if the remaining evidence had inspired confidence in the mind of the Court, this court could have certainly arrived at a conclusion regarding the guilt of the accused. The materials on record do raise a grave suspicion of the appellant/A[1] having committed the offence charged against him. But suspicion, however strong, cannot take the place of proof. That being the position, it can only be found that the prosecution has failed to prove the case against the accused beyond reasonable doubt. Therefore, I find that the appellant/A[1] is entitled to the benefit of doubt.

32. In the result, the appeal is allowed. The impugned judgment is set aside and the appellant/A[1] acquitted under Section 235(1) Cr.P.C. for the offences charged against him. He shall be set at liberty and his bail bond shall stand cancelled.

33. Applications, if any, pending, shall stand closed.

CHANDRASEKHARAN SUDHA (JUDGE) MARCH 16, 2026 p’ma