Mahal Singh v. State of Delhi

SUBMISSIONS ON BEHALF OF THE APPELLANT

15. Mr. Anurag Andley, learned counsel for the appellant submits that the conviction primarily rests upon the presumption under section 20 of the Act. FIR was lodged to satisfy the ulterior motive as the appellant did not arrest the person namely Manoj Kumar.

16. He strongly relied upon the judgement of the Hon’ble Supreme Court in the case of P. Satyanarayana Murthy vs. District Inspector of Police, State of A.P. and Another, (2015) 10 SCC 152, wherein it was held as under:

17. Learned counsel urges that in order to prove the charges under section 7 of the Act, it is necessary to prove the illegal demand followed by the acceptance. He points out from the statement of PW6/Complainant that Manoj Kumar appeared in the Court on 01.01.1991 (typographical error in the examination, it should be 01.06.1991) and was granted bail on the same day. Hence, there was no reason as such for the appellant to demand bribe from the complainant on 03.06.1991 and 04.06.1991.

18. He further submits that as per the allegations, when the appellant went to the house of the complainant at 11:30 – 11:45 pm on 03.06.1991, entire family was present in the house, none of the family members have been made witnesses nor any investigation was carried out in this regard.Moreover, complainant’s sister namely Kamini Chauhan is not a witness who was present at the time when the appellant reached the house of the complainant. Also, the alleged crime happened in arestaurant, there is no independent witness in this regard.

19. He further submits that complainant has a strong motive to get the accused involved in some false case as the complainant was having grudge against the appellant for not arresting the person namely Manoj Kumar. Complainant is unsavoury witness and has 3-4 cases pending against her. In such circumstances, her testimony requires independent corroboration and reliance is placed on Sat Paul vs. Delhi Administration, (1976) 1 SCC 727.

20. He lastly submits that testimony of PW7/independent witness cannot be relied upon as witness had not seen the complainant giving money to the appellant and he only acted upon the signal made by the complainant. He further admits that he had not seen any recovery made from the appellant.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

21. Per Contra, Mr Singh,learned APP supported the impugned judgement and argues that the appellant admits the recovery. He submits that the demand of bribe is proved by PW[6]. Furthermore, on the basis of circumstantial evidence, the demand and acceptance are both proved beyond reasonable doubt.

22. He then submits that once the demand and acceptance are proved by the prosecution beyond reasonable doubt, then the presumption under section 20 of the Act has to be drawn against the appellant.

23. He further submits that when both the hands of the appellant were washed, the solution of both the hand washed turned pink. Both the hand washes were transferred into two bottles and the bottles were then seized. He particularly relied on the CFSL report.

24. Lastly he submits that no interference is required for with the impugned judgement. ANALYSIS, REASONING AND CONCLUSION:

25. I have heard the rival submissions of the learned counsel for the parties and perused the material available on record.

26. Recently, the Constitution Bench of the Hon’ble Supreme Court in Neeraj Dutta vs. State of NCT of Delhi (2023) 4 SCC 731, observed as follows:-

27. In K. Shanthamma vs. The State of Telangana (2022) 4 SCC 574, the Supreme Court has held as under:- “10……….The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act.”

28. By referring to the above cited judgments, it is clear that in order to prove the charges under section 7 and 13 (1)(d) (i) and (ii) of the Act, it is sine qua non to establish the demand followed by acceptance of illegal gratification. This is a foundational fact which has to be proved by relevant oral and documentary evidence. The proof of demand and acceptance need not be necessarily proved only by direct evidence but also can be proved by circumstantial evidence.

29. In the present case, only persons who have deposed about demanding the bribe and accepting the same are PW[6] and PW[7].

30. As regard the ‘demand’of bribe is concerned, the evidence of PW6/complainant has alleged 4 instances which read as under:i. At her house: “On 3-6-91, when the accused came to my house, my father, mother and brothers were present the house. The accused talked to me inside the house, while sitting in the room. When the accused demanded the money, my sister Kamini Chauhan was present in that room. She was about 30 years of age at that time, As soon as the accused came to our house, he entered the drawing room and started talking about money. In the meantime, my sister also came there and I did not have any occasion to call my father or brother. I did not tell my father or brothers about the demand made by the accused after the accused left. I had not brought Kamini Chauhan to the A.C. Branch when I made my report. Statement of Kamini Chauhan was not recorded during investigation nor I produced her before the I.O. of the A.C. Branch, as she had no concern with the case. She had just come to the room where Mahal Singh was talking to me. She had not participated in the conversation nor she heard our talks. She had only seen the accused sitting in the drawing room......” ii. At Krishna Restaurant "As we sat down, the accused demanded money. I asked the accused about the case of my brother and his B.C. file. The accused assured me in the presence of the panch witness that he would close the B.C. file of my brother and would arrest Manoj Kumar. We were sitting on a bench. The accused was sitting on the left side. The panch witness was sitting opposite to us. I took out the money and gave the same to the accused. The accused accepted the money in his right hand, counted it with both of his hands and then kept it in the right side hip pocket of pants. While taking the money, the accused assured me that the work will be done. He would arrest Manoj and told me that he will take the balance amount after the work done............. Inspector then recovered the money from the pocket of the accused. Numbers of currency notes were tallied and found to be the same as recorded in the pre-raid report." iii. On the way to the restaurant: “I and the panch witness were sent ahead. We went to the restaurant but the accused was not found present there. On enquiring from the owner of the restaurant, we were told that Mahal Singh had just gone from there. I and Panch witness went to the police station. Accused was sitting in the room of the SHO and we learnt that some meeting was going on. The accused asked us to wait in a room and told us not to talk about the money with any other person. After 2/3 minutes accused came there and enquired me about the panch witness. Before that the accused had asked me if I had brought the money and I reply in affirmative. I told the accused that the panch witness had also some problem in the police station. The accused told me that he would get problem of the panch witness also sorted out. All this talk took place while we were talking towards the restaurant. When we reached Krishna restaurant, the accused asked me what I would like to eat.” iv. Informed the Inspector Ravi Kaushik, SHO, PS Gandhi Nagar: “I had met the SHO before the raid. He did not call accused Mahal Singh in my presence. Mr. Kaushik was the SHO. It is wrong to suggest that I had met the SHO on 2-6-91 and the SHO called the accused Mahal Singh. It is wrong to suggest that I had requested the SHO to transfer the investigation of the cases regarding the quarrel to some other officer. The SHO never told me that the accused had been transferred and had given charge to the record moharrer and that there was a farewell party fixed of the accused on 4-6-91.”........... “.......... I had met the SHO on 22nd or 23rd May 91, and he had told me that Mahal Singh was the I.O. and I should talk to him. I had not stated in my complaint that the SHO had called Mahal Singh, when I met the SHO (Confronted with portion X to X of statement Ex. PW6/A where it is so recorded).”

31. During the cross examination of PW[6], she has further deposed as under:- “During the quarrel which took in May 91, myself, my brother Krishan Kumar and Ashok Kumar and also Raj Kumar had sustained injuries. FIR was registered on the statement of my brother Krishan Kumar being FIR NO. 118/91 u/s. 323/324/34 IPC against Laxmi Narain, Daya Krishan and Manoj Kumar. Laxmi narain and Daya Krishan were arrested at the spot, and were released by the accused on police bail. The accused had not arrested Manoj Kumar. We wanted Manoj Kumar to be arrested because he was the main accused. But we did not have the grudge against the accused. It is correct that Manoj Kumar had appeared in the court of Shri. P.D. Jharwal, MM on 01.01.91 (typographical error in the evidence, it should be 01.06.1991) and he was granted bail, on the same day. Volunteered, the accused had however been telling us even till 4-6-91 that he would arrest Manoj Kumar only if we pay him money. It is wrong to suggest that the accused had not told me that he would arrest Manoj Kumar if we paid him money.”

32. It is the case of the prosecution that the complainant had alleged in her complaint exhibited as EX. PW 2/A that the demand of bribe was made for arresting Manoj Kumar. Further, the close scrutiny of the testimony of PW[6] makes it apparently clear that the complainant knew about the fact that Manoj Kumar appeared in Court and was granted bail on the same day.

33. The evidence of PW7/panch witness with regard to the demand of bribe reads as under:- “We went to Krishna Restaurant but the accused was not found there. I and the complainant then went to the police station. Lata Monga went inside the police station while I waited outside. After about 10/15 minutes Lata Monga came out with the accused, and we all went to Krishna Restaurant. We ordered cold drinks. There was lot of suffocation inside the restaurant. As we were taking cold drinks, Lata Monga signalled to me with her eyes that the work had been done. I came out and gave signal. Members of the raiding party came inside the restaurant and accused was apprehended. I did not see any recovery being made to from the accused, but I was shown the money and then we were all brought to the anti-corruption branch.”

34. According to me, the proof of demand has not been substantiated by PW[6] and PW[7] by the following reasons:-

I. First the demand made at the house of the complainant, it is admitted by the complainant that her sister Kamini Chauhan was present at the time of alleged demand of bribe, but she has not been named in the case as a witness and not examined. Also, at the relevant time, the brothers, father and mother were all present in the house, yet no one had been cited or made a witness. In addition, it is difficult to acceptthat nobody cared to be present in the room where the alleged demand was made despite a policeman entering the house at 11:30 – 11:45 pm in the night.

II. Second alleged demand was made at the Krishna Restaurant, where the complainant was sitting with the appellant and PW7/panch witness, where PW[7] has categorically denied that he did not see or hear the appellant demanding bribe nor did he see the complainant give any money to the appellant while they sat on the same table in the restaurant.Further he also deposed that he has not seen the recovery being made from the appellant. This fact is also admitted by the learned trial court that PW[7] has not furnished any corroboration to the testimony of PW[6]. In this regard, the evidence deposed by PW[7] reads as under:-

III. Third, on the way to restaurant but the same is refuted in the further cross-examination by the complainant herself that the demand was made but only after they reached the restaurant in this regard the evidence reads as under:- “......... The accused came out after some time. I had told the police that the accused had asked me to wait in the room and told us not to talk about the money with any other person. (Confronted with Ex. PW6/DA where it is not recorded). The accused demanded the money after we had reached the restaurant. He had not demanded the money while going from the police station to the restaurant.”

IV. Fourth as per the complainant, she approached the Inspector Ravi

Kaushik, SHO PS Gandhi Nagar before the raid proceedings and informed him about the demand of bribe by the appellant. However, the SHO, though a cited witness as per the chargesheet at serial no. 4 in the list of witnesses, but the SHO has not thrown any light on any such information being passed onto him. Prosecution has failed to prove any such occurrence through him.

35. It is settled law that in order to prove the guilt of the appellant, it is the quality of evidence that matters not the quantity and reliance is placed on Laxmibai & Anr. vs. Bhagwantbuva & Ors., (2013) 4 SCC 97 which reads as under:-

36. In addition, the complainant has improved her statement with respect to the demand of bribe by adding that the name of her brother would be remove from the list of BC (Bad Character) maintained by the Police Station. This fact was not mentioned in the complaint Ex. PW2/A. Relevant portion deposed by the complainant in this regard reads as under:- “I had met Mahal Singh several times in connection of the said case. On 3-6-91, Mahal Singh accused came to our house at about 11-30 or 11.45 p.m, and told me that if I paid him 2000/- as bribe, he would remove the name of my brother from the list of BCs and would make the case in our favour. He also said that in case I paid the money, he would arrest Manoj Kumar, I told Mahal Singh that my brother had been injured and therefore, why should I pay the money.”........ “.......... I had stated in my complaint that the accused had demanded money for arresting Manoj Kumar, but i had not mentioned in my complaint that accused had demanded money for removing the name of my brother from the list of the accused persons.............”

37. In the case of Harbeer Singh v. Sheeshpal, (2016) 16 SCC 418, the Hon’ble Supreme Court has observed as under: “15. …… Thus, while it is true that every improvement is not fatal to the prosecution case, in cases where an improvement creates a serious doubt about the truthfulness or credibility of a witness, the defence may take advantage of the same. (See Ashok Vishnu Davare v. State of Maharashtra, (2004) 9 SCC 431; Radha Kumar v. State of Bihar, (2005) 10 SCC 216; Sunil Kumar Sambhudayal Gupta v. State of Maharashtra, (2010) 13 SCC 657 and Baldev Singh v. State of Punjab, (2014) 12 SCC 473)..…….”

38. Now the question is whether, on the basis of the evidence on record, the prosecution has proved the demand of bribe by the appellant/accused beyond reasonable doubt.

39. The Hon’ble Supreme Court in N. Vijayakumar v. State of T.N., (2021) 3 SCC 687, and more particularly para 26 has held as under:-

40. Therefore, the demand of bribe followed by its acceptance must be proved beyond reasonable doubt. The burden of proving its case beyond all reasonable doubt lies squarely on the prosecution.

41. I refer to the paragraphs with respect to the analysis done by the learned trial court which reads as under:-

42. Learned trial court has failed to appreciate that the prosecution must prove the demanding and acceptance of bribe by primary or secondary evidence by the appellant. In the present case, PW[7] has not supported the case of the prosecution. The evidence of PW[6] is untrustworthy as Icannot lose sight of the fact that the veracity and credibility of the complainant is in question as the appellant has assailed the character of the complainant on the ground of improvement and further she has several criminal antecedents, which needs independent corroboration. In this regard, her cross examination reads as under:- “Earlier I was married to Gokal Chand at Aligarh. I got divorce from Gokal Chand in 1981. I do not remember the name of the court. I know Vinod Kumar. Case u/s. 309 was registered against me on 15-8-1993 and I had mentioned the name of Vinod Kumar in that case, Vinod Kumar had been sent to me by Mahal Singh and he wanted me to withdraw this case against Mahal Singh, I did not live with Vinod Kumar. A case u/s. 376/506 I.P.C. was registered against Vinod Kumar on my complaint at P.S. Shakarpur. I had stated in my complaint that I was living In House N. 64- A, Laxmi Nagar. I had not mentioned in the FIR that I was living in that house with Vinod Kumar as his wife. That case against Vinod Kumar is pending in court. My statement has been recorded in that case. Proceedings u/s. 107 were initiated against me at P.S. Shakarpur. It is wrong to suggest that proceedings u/s. 107 were initiated against me on 4-3-92, 6-4-92 and 22-3-92. Only once such proceedings were initiated u/s. 107/150 when there was a quarrel with the landlord. I know Ram Rattan. I had no quarrel with him. It is correct that case FIR No. 174/92 dated 23-7-92 u/s. 160 IPC was registered against me and Ram Rattan. I was arrested in that case and released on bail by the court. No case under the N.D.P.S. Act for possession of charas has been registered against me. I own a Yamah motor cycle. On 11-7-97, someone had put smack in my vehicle. Somebody informed the police. Inquiry into that incident is being conducted at P.S. Anand Vihar. My vehicle was taken to the police station. I was also called for enquiry. No one has been arrested in that case.”

43. It is apposite to refer to a judgement of the Hon’ble Supreme Court in Sat Paul v. Delhi Admn., (1976) 1 SCC 727wherein it has been held as under: “23. It is true that there is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. But where the witnesses have poor moral fibre and have to their discredit a heavy load of bad antecedents, such as those of PWs 1, 2, 7 and 8, having a possible motive to harm the accused who was an obstacle in the way of their immoral activities, it would be hazardous to accept their testimony, in the absence of corroboration on crucial points from independent sources. If any authority is needed reference may be made to R.P. Arora v. State of Punjab wherein this Court ruled that in a proper case, the Court should look for independent corroboration before convicting the accused person on the evidence of trap witnesses.”

44. In the case of Kanhaiya Lal & Ors. etc. v. State of Rajasthan, (2013) 5 SCC 655, and more particularly para 24 and 25 reads as under:-

25. In Kartik Malhar v. State of Bihar [(1996) 1 SCC 614: 1996 SCC (Cri) 188] this Court has stated (SCC p. 621, para 15) that a close relative who is a natural witness cannot be regarded as an interested witness, for the term “interested” postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.”

45. Perusing the entire testimony of the complainant, it is clear that the evidence of PW 6 is not of sterling quality. PW[6] has poor moral fibre and there are several material contradictions and improvement which go to the root of the credibility of this witness. The complainant herself is an accused in the FIR 120/91 along with her brothers of which the appellant was the IO. She is an accused in various criminal cases and they are(1) Case u/s 309 IPC as accused; (2) Case u/s 107/150 IPC as accused; (3) FIR No. 174/92 u/s 160 IPC along with co-accused Ram Rattan where she was arrested; (4) Enquiry in an NDPS case where smack was found in the motorcycle owned by the complainant. Hence, it is not safe to convict the appellant solely on the testimony of the complainant which is not corroborated by any other witness/evidence and most importantly PW[7].

46. Consequently, the evidence of PW[6] does not inspire confidence and is uncorroborated by any other witnesses, and the credibility of witness itself is in doubt as the complainant wantsto satisfy her ulterior motives only to get the Manoj Kumar arrested and to get favours in the investigation. The solution turning pink in the absence of demand will have no bearing as the law is settled in this regard. Hence the demand of bribe either by primary or by secondary evidence has not been proved.

47. Another aspect that the learned trial court has relied upon is the presumption under section 20 of the Act to convict the appellant. In this regard, the observations made by the learned trial court reads as under:-

48. I am unable to agree with the said finding of the learned trial court as the Hon’ble SC in Neeraj Dutta (Supra) has held that presumption under section 20 of the Act will only arise once the foundational factsi.e. demand and acceptance are proved.

49. By referring to the above mentioned testimony of the witnesses i.e. PW[6] and PW[7], and the analysis undertaken hereinabove qua section 7 and 13(1)(d)(i) and (ii) of the Act, it leaves no manner of doubt that the prosecution in the instant case has failed to prove the demand and acceptance of bribe either through direct or indirect evidence which constitute the foundational facts and thus, it would be unsafe and impermissible to sustain the conviction of the appellant.

50. As a result, the instant Criminal Appeal is allowed and the conviction and sentence recorded by the learned Special Judge, Delhi in Case NO. 283/1994 is set aside. The sentence was already suspended.

51. Copy of this order be communicated to the concerned jail Superintendent and the Trial Court.