Full Text
CRL. A. No.81/2001
JUDGMENT
Through : Mr. Sunil Malhotra, Advocate
Through : Ashish Kumar, Advocate
1. Whether reporters of local papers may be allowed to see the Judgment ? YES
2. To be referred to the Reporter or not? YES
3. Whether the Judgment should be reported in the Digest? YES G.S. SISTANI, J.
1. Present appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973, against the impugned judgment dated 12.01.2001 and order on sentence dated 23.01.2001 passed by the learned Special Judge, Delhi in R.C. No.3(A)/96-DLI under section 7 and 13(1) (d) read with section 13(2) of the Prevention of Corruption Act, 1988. By virtue of the said judgment the appellant has been sentenced to undergo R.I. for a period of two years for the 2009:DHC:3298 Rs.5,000/- and in default of payment of fine, he was directed to undergo RI for a period of six months. Further, the appellant was convicted under Section 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act and sentenced to R.I. for a period of three years and a fine of Rs.5,000/-. In default of the payment of fine, the appellant was directed to undergo R.I. for a period of six months. Both the substantive sentences were to run concurrently and the period of detention already undergone was to be accordingly deducted.
2. Brief facts of the case as noticed by the learned Special Judge are as under.
3. A case was registered on the basis of a complaint made by Sh. Subhash Vashisth to S.P./CBI on 18.01.1996, alleging therein that he was running a PCO with telephone nos.766800 and 629244 at M/s Shiva Enterprises 7th Milestone, Ghaziabad, U.P. Sh. Anil Kumar, in charge, lineman of the area, had come to his PCO on 17.1.1996 and demanded Rs.100/- per month. It was stated by Sh.Anil Kumar that in case the amount as demanded was not paid, his telephone line would be disturbed causing loss of thousands of rupees. Sh. Anil Kumar further demanded the arrears of the previous year at Rs.100/-, per month. When the complainant showed his inability to pay the amount then Sh. Anil Kumar asked him to pay Rs.1,000/with one liquor bottle, the next day at his residence. Sh. Anil Kumar also gave his address to the complainant. Since the complainant did not want to give the bribe, he addressed a written complaint to SP/CBI, ACB, New Delhi, which resulted in registration of a case. Inspector R.V.S. Lohmor was entrusted with the investigation of the case. G.C. Sharma and Sh. Pradeep Chand of FCI Headquarters, Bharakhamba Lane, New Delhi, were also associated with the case. Pre-trap formalities were completed in the CBI Office and the same were reduced to writing in the handing over memo. The complainant produced a sum of Rs.1,000/- in the form of 10 G.C. notes of Rs.100/- denomination, each, and a bottle of 21st Century, Pure Malt Whisky. The numbers of these G.C. Notes was recorded in the handing over memo. Thereafter, the G.C. notes were treated with phenolphthalein powder and Inspector R.S. Tokas gave the demonstration and explained the reaction which takes place between Sodium Carbonate solution and phenolphthalein powder. Personal search of the complainant was carried out and the G.C. Notes treated with phenolphthalein powder were kept in the left side upper pocket of the shirt worn by the complainant. The label of the liquor bottle was signed by the witnesses as well as the inner side of the cover of liquor bottle was also signed. The complainant was directed to hand over the tainted money and the liquor bottle to Sh. Anil Kumar only on his specific demand of bribe and not otherwise. Sh. Pradeep Chand, an independent witness was asked to act as Shadow witness. He was directed to remain as close as possible to the complainant so that he may overhear the conversation and see the transaction. He was further directed to give a signal by scratching his head by both his hands. The CBI trap party left the office at about 4:40 p.m. At about 6:30 p.m., shadow witness gave the pre-appointed signal and Inspector R.V.S. Lohmor with the other witness, Sh. J.C. Sharma rushed into house no.4/2748, Bihari Colony, Shahdara, Delhi. The other members of the trap party also followed. At the instance of the complainant and The identity of the said person was later on revealed as Sh. Anil Kumar, R.M./UP, Border Telephone Exchange, Ghaziabad, U.P. The complainant and the shadow witness informed that Anil Kumar had demanded Rs.1000/- and one liquor bottle as bribe from the complainant and had also accepted the same. The bottle of whisky was kept on the central table and the tainted money was kept in the inner right hand side coat pocket. On the directions of Inspector R.V.S. Lohmor, the bribe amount of Rs.1000/- in the form of 10 G.C. Notes of Rs.100 denominations, each, were recovered from the inner right hand side pocket of the coat worn by the appellant, Anil Kumar. The bottle of whisky kept on the central table was also verified. The sum of Rs.1000/- recovered as bribe money; one bottle of whisky; two wash bottles; and the coat of appellant were taken into possession and the post-trap formalities were completed. Personal search as well as house search of appellant was conducted. Specimen CBI Seal impressions were taken on separate sheets of paper, recovery memo was prepared at the spot and stamp of the CBI seal was put on each page of the recovery memo. This memo was signed by all present. Accordingly, on the basis of the said allegations, appellant, Anil Kumar, was charge-sheeted. Post-trial, appellant was found guilty for the offence punishable under Section 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act. Aggrieved by the judgment and order on conviction, the present appeal has been filed.
5. In support of its case, the prosecution had examined seven witnesses. Statement of appellant, Anil Kumar was recorded under Section 313 Cr.P.C., and three witnesses were examined by the appellant in defence. 1/A was not passed by the competent authority and as such the present appeal is to be allowed on this ground alone. Learned counsel further submits that even otherwise, the sanctioning authority (PW-1) did not apply its mind at the time of granting sanction and passed the sanction order, Ex.PW-1/A under pressure, and the same is clearly borne out from the deposition of PW-1.
7. Learned counsel for the appellant next contends that even the identity of the appellant, Anil Kumar, is disputed inasmuch as PW-2 has deposed that he was not sure whether the person present in Court was the same person who was present in the house. Learned counsel for the appellant submits that PW-2, the shadow witness, has not supported the case of the prosecution and has deposed that because of the noise of television, he was unable to hear the conversation between the complainant and the appellant. It is submitted by the counsel that the evidence of PW-2 clearly brings out the falsity in the case of the prosecution.
8. Further learned counsel for the appellant submits that the evidence of PW-4, complainant, is not reliable as PW-4 has made material improvements in his statement before the Court when compared to the statement made under section 161 Cr.P.C. It is submitted that the entire story of the prosecution is improbable as the appellant was a Mazdoor and not a line man and thus it was not in his domain to cause hindrance in the telephone line of the complainant.
9. Learned counsel for the appellant submits that the appellant in his statement under section 313 Cr.P.C. has denied all allegations and no presumption arises against the appellant in terms of section 20 of the Prevention of Corruption Act. He submits that even otherwise, had the appellant given time to the complainant to come complainant arrived, goes to show that the appellant is innocent and money was planted on him.
10. Learned counsel for the appellant further submits that the prosecution has failed to join public witnesses, in spite of the fact that the residences of the appellant was situated in a crowded place and public witnesses were readily available. It is submitted that defence witnesses have also supported the case of the appellant and the present appeal is liable to succeed.
11. Per contra, learned counsel for the respondent/CBI submits that the prosecution has been able to establish its case beyond any shadow of doubt. Learned counsel for the respondent submits that the sanction order is only a formality and proceedings cannot be held at ransom on the ground that the sanction order was invalid. He submits that sanction is only a formal requirement and it cannot be said that there is failure of justice even if granted by the wrong authority. Learned counsel for the respondent further submits that the appellant has been caught red-handed and the same stands corroborated by the evidence of PW-4, complainant and the evidence of the trap laying officer, Pw-8. Learned counsel further relies upon the case of State of U.P. Vs. Zakaullah reported at (1988) 1 SCC 557 and submits that if the evidence of the trap laying officer is trustworthy and reliable, in fact, that itself can be the sole ground for conviction of appellant. Learned counsel further submits that although PW-2 has deposed that he could not hear the conversation, but PW-2 has clearly deposed that he saw the appellant accepting Rs.1000/- and a bottle of whisky, and as per section 20 of the PC Act, 1988 if it is proved that the accused has obtained or attempted to obtain any gratification (other than legal the case of Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2000) 8 SCC 571 in support of the same.: “11. …. The context in which the word is used in Section 4(1) of the Act of 1947 is, hence, important. As the wording on the relevant portion employed in the corresponding provision in the PC Act 1988 [Section 20(1)] is identical we would reproduce that sub-section herein: ―20. (1) Where, in any trial or an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.‖
12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted ―as motive or reward‖ for doing or forbearing to do any official act. So the word ―gratification‖ need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like ―gratification or any valuable thing‖. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word ―gratification‖ must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.‖
12. I have heard learned counsel for the parties and scrutinized the evidence on record. The submissions of learned counsel for the appellant can be summarized as under: i. Sanction order was not passed by the competent ii. Even otherwise, sanctioning authority (PW-1) has admitted that he had granted sanction under pressure. iii. PW-4, complainant is unreliable as there are material contradictions in his version. iv. PW-2, shadow witness has been declared a hostile witness. v. Public witnesses were not joined by the prosecution. vi. Defence witnesses have clearly supported the case of the appellant.
13. The submissions of learned counsel for the respondent can be summarized as under: i. Prosecution has been able to establish its case beyond any shadow of doubt. ii. Sanction was granted by a competent authority after due application of mind. iii. Appellant was caught red handed. iv. Evidence of the complainant (PW-4) and trap laying officer (PW-8) is trustworthy and reliable.
14. Allegations of demanding and having accepted illegal gratification in terms of money and a bottle of whisky were found to be true by the trial court, against one Anil Kumar (appellant herein), a government official, who was subsequently convicted under section 7, 13(1)d read with section 13(2) of the Prevention of Corruption Act, 1988. Section 7 of the Prevention of Corruption Act reads as under: "7. Public servant taking gratification other than legal remuneration in respect of an official act.—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause
(c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. Explanations.— (a) **** (b) ―Gratification.‖ The word ―gratification‖ is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) ―Legal remuneration.‖ The words ―legal remuneration‖ are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. (d) ―A motive or reward for doing.‖ A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) ****‖ Section 13 of the Prevention of Corruption Act reads as under: ―13. Criminal misconduct by a public servant.— (1) A public servant is said to commit the offence of criminal misconduct,— (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or (b) ****; or (c) ****; or
(d) if he,—
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.—For the purposes of this section, ―known sources of income‖ means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.‖
15. Learned counsel for the appellant has strongly contended before me that the sanction order, Ex.PW-1/A was not passed by a competent authority and as such, the entire proceedings initiated against the petitioner at the trial, were void. It is contended that even otherwise, the sanctioning authority (PW-1) did not apply its mind at the time of granting sanction and PW-1 was admittedly under pressure. In my considered opinion, the learned Special Judge of the trial Court has adequately dealt with this contention of counsel for the appellant. The learned Special Judge has minutely considered the evidence of PW-1 and observed that after going through the statement of PW-1 (Shri Charan Singh, S.D.O., Phones, Ghaziabad, UP) in the Court and the sanction order, Ex.PW-1/A, passed by PW-1, it was clear that PW-1 was blowing hot and cold at the same time. The learned Special Judge took into account that the sanction order, Ex.PW-1/A was duly signed by PW-1, and wherein PW-1 had mentioned that he being the S.D.O. (Phones), was the competent authority to remove appellant, Anil Kumar; whereas, while deposing before the Court, PW-1 took a somersault and on 19.12.1997, PW-1 stated that as per the service rules, the appointing authority for regular mazdoor for telephones was D.G.M. stated that the sanction for prosecution was granted by him after going through the record of investigation. Subsequently, PW-1 in his statement recorded on 22.05.2000 under Section 311, Cr.P.C. stated that A.G.M. (Admin.) and Assistant Director (Admin.), were the competent authorities to appoint and remove regular mazdoors and also that he had been pressurized by Sh. R.K. Dass (vigilance) to sign the sanction order.
16. In my considered opinion, the learned Special Judge has correctly observed that if PW-1 was not the competent authority, there was no occasion for PW-1 to state the same in the sanction order, Ex. PW-1/A that he, S.D.O. (Phones) was the competent authority to remove Anil Kumar, regular mazdoor. Further, a bare perusal of the sanction order, Ex.PW-1/A, clearly shows that the same was passed with due application of mind and without any kind of pressure. Sanction order, Ex.PW-1/A reads as under: ―4. And whereas, I, CHARAN SINGH, SDOP, being the authority competent to remove, said Sh. Anil Kumar, RM, UP Border Telephone Exchange, Ghaziabad, UP from service, after fully and carefully examining the materials placed before me, with regard to the aforesaid allegations and circumstances of the case and after due application of mind, consider that the said Anil Kumar, RM, should be prosecuted in the court of law for the said offences.
5. Now, therefore, I, CHARAN SINGH, SDOP, do hereby accord sanction u/s 19(1)(c) of PC Act, 1988, for the persecution of the said Sh. Anil Kumar, RM, UP, Border Telephone Exchange, Ghaziabad, UP for the said offences and any other offences punishable under other provisions of law in respect of the acts aforesaid and for cognizance of the said offence by the Court of competent jurisdiction.‖
17. The learned Special Judge has specifically observed that it was only to sign the sanction order. PW-1 had not taken this plea when he was examined for the first time in the Court on 19.12.1997. Thus, there was no merit in the contention of counsel for the appellant that PW-1 had been coerced into signing the sanction order. It is also of significance to note that on 19.12.1997, PW-1 had deposed that the sanction for prosecution was granted by him after going through the record of the investigation; and in his crossexamination recorded on 22.05.2000 under Section 311, Cr.P.C., PW-1 stated that he had thoroughly gone through the file and it was wrong to suggest that he had not applied his mind while granting sanction. Thus, PW-1 maintained a firm stand that he had carefully examined the record of the case and only thereafter issued the sanction order, Ex.PW-1/A. However, in view of the contradictory statements made by PW-1, learned Special Judge considered it expedient to ascertain the competent authority for the appointment and removal of regular mazdoors in the concerned Department, and called for the relevant Rules applicable at that time. It was found that as per the Schedule of Administrative Powers in respect of officers in Delhi Telephone District and Sub-Divisional Telephone District, in case of Class IV employees, Assistant Divisional Engineer was the appointing authority as well as the authority competent to impose penalties. Deputy General Manager and other senior officers were the appellate authorities. The court below also took into consideration letter dated 2.1.2000 of Sh. R.K. Dass (Deputy Engineer, Vigilance), as per which the Assistant Engineer and S.D.O. were both of equal ranks and accordingly it was clear that S.D.O. was also the competent authority to appoint and remove Class IV employees including regular mazdoors. (Phones), Ghaziabad (UP) at the relevant time, was the competent authority who could have granted sanction for prosecution of the appellant. I find no merit in the contention of learned counsel for the appellant that PW-1 was not the competent authority to grant sanction for prosecution of the appellant or that he had issued the sanction order, Ex.PW-1/A, under pressure. Even otherwise, it is settled position of law that the sanction order is only a procedural requirement and any error or irregularity in the same, does not vitiate the entire proceedings. Justice cannot be at the beck and call of technical infirmities. In the case of Central Bureau of Investigation Vs. V.K. Sehgal & Another, reported at (1999) 8 SCC 501: 1999 SCC (Cri) 1494, it has been held that a court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. Similarly in the case of State Vs. T. Venkatesh Murthy reported at (2004) 7 SCC 763: 2004 SCC (Cri) 2140, it was observed as under: ―14. In the instant case neither the trial court nor the High Court appear to have kept in view the requirements of sub-section (3) [of section 19 of the Prevention of Corruption Act, 1988] relating to question regarding ‗failure of justice‘. Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The same logic also applies to the appellate or revisional court. ………….‖
19. In the case of Paul Varghese v. State of Kerala,(2007) 14 SCC 783 it was held: Singh Badal v. State of Punjab[1]. In sub-section (3) the stress is on ―failure of justice‖ and that too ―in the opinion of the court‖. In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the ―failure of justice‖ is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or (sic failure of justice) has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction. Subsection (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as ―the old Act‖) corresponding to Section 19(2) of the Act, question relates to doubt about authority to grant sanction and not whether sanction is necessary.‖
20. In the case of C.S. Krishnamurthy Vs. State of Karnataka, reported at (2005) 4 SCC 81, the Apex Court held as under: ―7. ………. It is no doubt true that sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant (sic) from harassment. But, the sanction should not be taken as a shield to protect corrupt and dishonest public servant.......
21. Further I find no merit in the contention of learned counsel for the appellant that PW-4 is an unreliable witness. PW-4, Sh. Shubhash Vasisht (complainant) deposed that in January, 1996, he was running a public call office with STD/ISD facilities at Seventh Mile Stone, Prakash Industrial Area, Sahibabad District, Ghaziabad, U.P. He had two telephones at the said PCO. On 17.1.1996, Sh. Anil Kumar, appellant came to his PCO and told him that he was the line man of telephone department and asked PW-4 to pay him a monthly bribe of Rs.100/-, per telephone, or else his telephone line would be disrupted causing loss of thousands of rupees. PW-4 further deposed that the appellant had also asked him to pay bribe for the last one year at the same rate. When PW-4 expressed his inability to pay that amount, appellant asked him to give Rs.1000/and a bottle of liquor at his residence in Shahdara by the evening of next day after 5.00 p.m. PW-4 was warned that if he did not comply with the appellant‘s demands, the appellant would disrupt his telephone. The next day, PW-4 made a complaint and went to the office of CBI where he met S.P., CBI (ACB), and handed over his complaint. Inspector Lohmor was entrusted with the charge of the case, so as to take the necessary action. As per PW-4, Inspector Lohmor made enquiries from him about his complaint. Two officials namely, Sh. Pradeep Kumar and Sh. J.C.Sharma from Food Corporation of India were summoned and PW-4 was introduced to both these witnesses. Thereafter, PW-4, produced ten currency notes of Rs.100/- denominations, each, and the same were treated with a chemical powder. One bottle of whisky which PW-4 had already purchased was also produced. As per the deposition of PW- 4, he had been asked to give the bribe only in case of a specific demand. The two witnesses signed on the label of the said bottle of whisky and the number of currency notes was noted down on a piece of paper. Thereafter, a demonstration was given in the CBI office, wherein it was shown that if anyone touched the currency notes treated with chemical powder and thereafter dipped his fingers in another solution (prepared by dissolving another chemical), the latter solution would turn from colourless to pink. The solution was thrown away and whereafter PW-4 and other members of the trap party washed their hands. A handing over memo Ex.PW-2/A, in respect of pre-trap proceeding was also prepared. PW-4 further deposed that he along with the trap party and not otherwise. Witness Pradeep Kumar (PW-2) was asked to accompany PW-4 and act as a shadow witness and in case of the demand and acceptance of bribe money by the appellant, shadow witness was directed to give the signal to the raiding party by placing his hand on his head. The shadow witness was further directed to overhear the conversation between the appellant and PW-4. The trap party reached Behari colony, Shahdhra at about 5:30 p.m., and the shadow witness (PW-2) along with the complainant (PW-4) went to the house of the appellant, who was not found to be present in his house at that point of time. As per PW-4 he told the family members of the appellant that he was an acquaintance of the appellant. Thereafter he along with PW-4 again went to the house of the appellant between 5:45 and 6:00 p.m. and the appellant was present in his house. As per PW-4, he said ―Nameste‖ to the appellant, who said ―Sharmaji ander aiye aiye, me thora late ho gaya.” The appellant further said ―paise laye ho kya.” Further PW-4 deposed that “Mereay han keheny pay aur maine kaha bottle bhi laya hun”, then the appellant asked ―yeh bottle kiski hai.‖, to which PW-4 replied ―it is a whisky bottle”. Thereafter the appellant accepted that whisky bottle from PW-4 and kept the same on the table. The appellant demanded money from PW-4, who handed over the money to him. The appellant said ―pure hain” and to which PW-4 replied ―ek hazar pure hai”. Appellant accepted the tainted GC notes in his left hand and kept the same under the right side inner pocket of his bandgala coat. Thereafter shadow witness told PW-4 ―Sharmaji abhi aata hun kafi der ho gai hai” and thereafter shadow witness left the house of the appellant. Then PW-4 told the shadow witness ―aap chalo main aa raha hun”. apprehended him. The CBI officials enquired from the appellant that he had taken bribe money from PW-4 and to which the appellant replied ―maine koi paise nahe liye”. PW-4 further deposed that he informed the CBI officials that the appellant had demanded and accepted bribe from him and had also taken a bottle of whisky. Inspector Lohmor directed the shadow witness to recover bribe money from the coat pocket of the appellant and the trap party was asked to search the appellant. As per PW-4, the tainted GC notes were recovered by J.C. Sharma from the coat pocket of the appellant and the numbers of G.C. notes when compared with the numbers noted down in the handing over memo, were found to tally. Thereafter the hand wash of both the hands as well as the pocket wash of the coat of the appellant was taken. The appellant was asked to dip his hand in a solution and which turned into pink colour. The hand wash was transferred into a glass bottle which was sealed with the seal of the CBI and a label was put on that bottle which was signed by the witnesses. Thereafter another glass bottle was called for and pocket wash of the inner side of the coat which the appellant was wearing, was taken and on dipping, yet again the colour changed from colorless to pink. Similar procedure was repeated and the bottle was sealed with the seal of CBI. The bottle of whisky was also recovered and the brand of the said whisky bottle was found to tally with that noted down in the handing over memo, Ex.PW-2/A. Signatures on the bottle of whisky were also compared. A recovery memo, Ex.PW-2/B with respect to the post-trap proceeding was prepared at the spot and PW-4 identified his signatures on point B of this memo. PW-4 also identified the recovered G.C. notes as Ex.P-3 to P-12 and the bottle
22. Extensive cross-examination of PW-4 was undertaken by counsel for the appellant, however, nothing emerged from the same which can force me to derive an inference that PW-4 was deposing out of any ill-will or enmity. PW-4 was firm in his stand that the appellant had demanded and accepted bribe from him, in terms of money and a bottle of whisky. In the cross-examination PW-4 further deposed that it was wrong to suggest that appellant did not accept the bribe from PW-4 or that he had implicated the appellant in a false case. PW-4 further denied that suggestion that the tainted money and bottle of whisky was planted on the appellant. In my considered opinion PW-4 has deposed against the appellant on all fronts and there are no material improvements and/or contradictions in his statement which go to the root of the matter and compel me to disregard his evidence. The evidence of PW-4 is reliable and trustworthy.
23. Learned counsel for the appellant has further contended before me that PW-2, the shadow witness has not supported the case of the prosecution and which certainly sounds a death knell to the case of the prosecution. I have carefully gone through the evidence of PW- 2, shadow witness. PW-2 in his statement on oath before the court deposed that he along with the complainant (PW-4) had indeed entered the house of the appellant while other members of the raiding party remained outside. The complainant and the appellant sat on the sofa while he remained seated on the bed which was lying nearby. Although PW-2 has deposed that because of the noise of the television he could not hear the conversation between the appellant and the complainant, however, PW-2 stated that some conversation did actually take place between the two of them and the suggestion in his cross-examination that no transaction took place in his presence between the appellant and the complainant. PW-2 also denied the suggestion that the appellant had not accepted the tainted money and the bottle of whisky. It is settled position of law that merely because a witness has been declared to be hostile, the same does not imply that the entire evidence of such witness be held as otiose. If after careful scrutiny of such evidence, the Court finds a portion thereof to be reliable, then the Court may place reliance on it. In the case of Gurpreet Singh Vs. State of Haryana reported at (2002) 8 SCC 18, the Apex Court observed as under: ―19. Incidentally, it is now well settled that in the event of a portion of evidence not being consistent with the statements given under Section 161 and the witness stands declared hostile, that does not, however, mean and imply total rejection of the evidence. The portion which stands in favour of the prosecution or the accused may be accepted but the same shall be subjected to close scrutiny.‖
24. Thus in view of the settled position of law, I find that the categoric deposition by PW-2 that the appellant accepted the said tainted money in his left hand and kept it in the right breast pocket of his coat and that the bottle of whisky was also accepted by the appellant, there is no merit in the contention of counsel for the appellant that PW-2 is an unreliable witness altogether. The learned Special Judge has also observed that the presence of PW-2 in the house of the appellant on the day of the incident and especially in the particular room, stands confirmed from the fact that a question was put to PW-2 in his cross-examination that as ‗he had got busy in watching TV, he did not see the transaction of passing of money from the complainant to the appellant’, which suggestion was
25. Further, the fact that PW-2 went on record to say that he was not sure as to whether the person present in the court was appellant, Anil Kumar or not, does not militate against the established identity of appellant, Anil Kumar inasmuch as, complainant (PW-4); independent witness (PW-5); and the trap laying officer (PW-6) have clearly identified the person present in court as appellant, Anil Kumar. In my opinion, there is no dispute as regards the identity of the appellant.
26. It has further been contended by counsel for the appellant that the prosecution had failed to examine independent witnesses, and in the absence of these witnesses, the case of the prosecution cannot stand. It would be appropriate herein to recall the decision of the Apex Court in the case of Sahib Singh Vs. State of Punjab, reported at 1996 (11) SCC 685, wherein it was held that it is not always possible to associate public witnesses and this alone should not be a ground for acquitting the person. In another case titled as Iswar Singh Vs. State, reported at 1985 Crl.C.J. 1625 it was observed as under: ―It is common experience that people are greatly reluctant to co-operate with the police in such matters for a variety of reasons and there is as such absolutely no reason to disbelieve the I.O. that public did not respond to join the investigation.‖
27. Notwithstanding these judgments, it is of relevance to note that in the present case however, the prosecution had indeed examined PW-5 as an independent witness. Further, it is not the quantity/number of witnesses, but the quality of evidence led by the witnesses, that matters before a Court. There is no condition evidence of even a single witness as reliable, convincing and trustworthy then conviction may be based on the sole testimony of such witness also. Coming back to the facts of this case, I find that PW-5 has whole-heartedly supported the case of the prosecution. On a careful analysis of the deposition of PW-5, it is seen that in the examination-in-chief, PW-5 deposed that the complainant (PW-4) and the shadow witness (PW-2) went to the residence of the appellant while he along with the trap party sat in the vehicle outside. After about 15 – 20 minutes, complainant and shadow witness came out of the house of the appellant and shadow witness informed that the appellant was not in his house. After 10 minutes, the complainant and shadow witness again went to the house of the appellant and the raiding party took position outside the house of the appellant. After 10 minutes, shadow witness came out of the house of the appellant and gave the pre-appointed signal. Immediately thereafter, the entire raiding party rushed to the house of the appellant. In the room, they found one bottle of liquor lying on the table. The appellant was confronted that he had accepted bribe from the complainant, however, the same was denied by the appellant. As per PW-5, thereafter shadow witness informed that appellant had accepted the bribe money and kept the same in his right side pocket of the coat, which the appellant was wearing at that point of time. Thereafter appellant was apprehended by his arms and the tainted G.C. notes were taken out from the pocket of the coat of the appellant. The numbers of the tainted G.C. notes were compared and were found to tally with the numbers noted down in the handing over memo. PW-5 has also corroborated the version of complainant, PW-2 that when the appellant was made to respective washes were sealed with the seal of the CBI. As per PW- 5, a rough site plan, Ex.PW-5/8 was prepared and PW-5 identified his signatures thereon at point ‗A‘. Recovery memo, Ex. PW-2/B was also prepared and the same bears his signatures at point ‗D‘ on all the three pages. In the cross-examination by learned counsel for the appellant PW-5 denied the suggestion that the money was planted on the appellant. PW-5 also denied the suggestion that no incriminating material i.e. the currency notes of Rs.1,000/- and a bottle of whisky was found from the possession of the appellant. PW-5 further denied the suggestion that the documents had been prepared in the office of the CBI. PW-5 identified the case property and stated that Ex.P-1 was the left hand wash and Ex.P-2 was the right side inner coat pocket wash. He further identified Ex.P-3 to P- 12 as the ten currency notes which were accepted by the appellant and Ex.P-13 as the coat which the appellant was wearing.
28. The case of the prosecution further finds support from the evidence of PW-3 (Sh. NK Prasad, Retired SSO, chemical examiner) who examined the samples sent to the office of the Central Forensic Science Laboratory. PW-3 has deposed that seals of the bottles sent to him for analysis were intact and contents of the bottle were separately analyzed under his direct supervision. As per PW-3, the samples were found to be positive with regard to the presence of sodium carbonate and phenolphthalein. PW-3 also denied the suggestion put to him by counsel for the appellant that samples were not examined under his supervision or his presence. Although as per State of U.P. Vs. Zakaullah reported at (1988) 1 SCC 557, there is no statutory requirement to send the washes for chemical examination, but the same is for the satisfaction of the were actually sent for examination, which have tested positive, undoubtedly make out a case against the appellant.
29. Further I find that there the three persons examined in defence by the appellant, say nothing which may advance the case of the appellant. DW-1 while stating that PW-4 used to threaten him of getting suspended, if his telephone was not restored, has admitted at the same time that he knew nothing about the demand or acceptance of bribe by the appellant. DW-2 has contrarily, supported the complainant and deposed that the behaviour of complainant with him was reasonable. He has stated nothing with regard to this case. Similarly, nothing emerges from the evidence of DW-3 which may suggest the cause of the appellant.
30. The case of the prosecution further finds support from the evidence of PW-6, Inspector Lohmor who was the trap laying officer. PW-6 has deposed in his examination-in-chief that on the basis of a written complaint by PW-4, a trap was decided to be laid against the appellant. As per PW-6, at about 6:30 p.m., shadow witness gave the pre appointed signal by scratching his head with both his hands. Accordingly, he along with PW-5, and other members of the trap party rushed inside the residence of the appellant. PW-6 disclosed his identity to the appellant and challenged that he had demanded and accepted bribe of Rs.1,000/- and a bottle of liquor. PW-6 has also affirmed that 10 GC notes of Rs. 100/- each, were got recovered and they were found to tally with the numbers already noted down in the handing over memo. This witness has also affirmed that a sodium carbonate solution was prepared which turned from colorless to pink after the appellant dipped his left hand fingers in the solution and also when the inner lining of the with the seal of CBI and labeled. The liquor bottle was also recovered from the table kept in the room and both the independent witnesses identified their signatures on its label. Thus the evidence of PW-6 also lends credence to the case of the prosecution that the appellant had demanded and accepted illegal gratification from the complainant.
31. In my considered opinion, there is no room for doubt that the appellant had demanded and accepted the bribe of Rs.1,000/- and a bottle of whisky. The identity of the appellant stands established by the unwavering testimony of PW-4, complainant; PW-5, independent witness as well as PW-6, the trap laying officer. Further PW-4, the complainant and PW-5, an independent witness, have unerringly deposed against the appellant, as the person who demanded and accepted the bribe. PW-5 is an independent witness and there is nothing to suggest that he has deposed falsely or that his version is to be dis-believed. PW-2, the recovery witness, has also affirmed the acceptance of tainted money and bottle of liquor by the appellant. PW-3, chemical examiner has also affirmed that the samples sent to him tested positive for sodium carbonate and phenolphthalein. PW-6, the trap laying officer, has also affirmed that the money and bottle of liquor that had been marked to be given to the appellant in case of any demand made, was indeed recovered from the appellant.
32. In view of above, I find no reasons to interfere in the impugned judgment and order on sentence passed against the appellant, Anil Kumar by the learned Special Judge, Tis Hazari, Delhi in R.C. No.3(A)/96-DLI under section 7 and 13(1) (d) read with section 13(2) of the Prevention of Corruption Act, 1988. G.S.SISTANI, J. November 30, 2009 ssn