Full Text
HIGH COURT OF DELHI
STATE ..... Petitioner
Through: Mr. Manoj Pant, APP for State
Through: Dr.M.P.Raju with Mr. KrishnaKumar, Advocates alongwith Respondent in person
JUDGMENT
1. The present appeal under Section 378 of the Code of Criminal Procedure, 1973 („Cr.P.C‟) has been filed by the State against the judgment dated 06.01.2010 passed by learned Special Judge, Delhi („Trial Court‟) in CC No. 36/2005 whereby the respondent was acquitted for offences punishable under Section 7 and 13(2) of the Prevention of Corruption Act, 1988 („P.C. Act, 1988‟).
2. To state briefly, the case of prosecution before the Trial Court was that a complaint dated 02.09.2004 was lodged with Anti- Corruption Branch, Delhi by one Parmod Kumar, i.e. complainant, against Bijender Singh, i.e. respondent/accused, who was working as MohararMalkhana at Police Station („P.S.‟) Narela at that time.
2.1. The complainant had stated that on 27.08.2004, he had gone to the office of NDPL, Narela, Delhi on his Motorcycle to deposit electricity bill, and had found his motorcycle missing when he had come out of the office. Upon inquiring, he had come to know that his motorcycle was seized by the police officials of P.S. Narela. On 01.09.2004, the complainant had moved an application in the office of ACP, Narela for release of his motorcycle, and an order was then passed to release the same. It was alleged that he had gone to meet the respondent at P.S. Narela who had demanded bribe of Rs.200/- from him to release the motorcycle, and had asked the complainant to come with the said amount on 02.09.2004 after 5:00 PM.
2.2. Pursuant to receipt of this information, a team was constituted on the same day for laying a trap on the respondent. The complainant produced a sum of Rs.200/- consisting of two government currency („GC‟) notes of Rs.100/- each. The trap laying officer (PW-10) got those notes checked through panch witness (PW-7), and the serial numbers of the same were recorded in the handing over memo and other pre-trap formalities such as demonstration regarding reaction of phenolphthalein powder were conducted. The bribe amount of Rs.200/was then treated with phenolphthalein powder and was kept in the pocket of the complainant‟s shirt, and he was directed to hand over the same to the respondent only on his specific demand. Thereafter, panch witness was asked to remain close to the complainant and overhear the conversation and to see the transaction of bribe.
2.3. The raiding team had reached the spot at 05:45 PM on 02.09.2004. The complainant and panch witness had gone inside the concerned police station, where the respondent was on duty, and the other members of the team had taken suitable positions in disguised manner. After about 15 minutes, panch witness had given a predetermined signal and on noticing the same, trap laying officer and other team members had rushed towards the spot and had immediately caught the respondent. The team members had disclosed their identities to the respondent, and the panch witness had recovered the bribe amount of Rs.100/- from back pocket of the accused and compared the serial number of those GC notes with the serial number mentioned in pre-raid report which had tallied. Thereafter, the right-hand wash and back pant pocket wash of accused was taken separately in colorless solution of Sodium Carbonate which had turned pink and was transferred in four small bottles. The accused/respondent was then arrested for demanding and accepting the bribe amount of Rs.100/from the complainant vide a separate arrest-cum-personal search memo.
3. The respondent was produced before the learned Trial Court and copy of chargesheet under section 207 Cr.P.C was supplied to him to his satisfaction. Thereafter, the respondent was charged for offences punishable under Sections 7 & 13 (2) of P.C. Act, 1988. The respondent had pleaded not guilty to the aforesaid charges and had claimed trial.
4. By way of impugned judgement dated 06.01.2010, the learned Trial Court, after considering the evidence and material available on record, had acquitted the respondent in the present case. The material on record was considered insufficient by the learned Trial Court to hold the respondent guilty of offences punishable under Sections 7 and 13(2) of P.C. Act, 1988. The concluding part of the impugned judgement dated 06.01.2010 reads as under: “...There is total contradiction between the statement of complainant and panch witness regarding the transaction which took place at the spot. As per the complainant some endorsement was made on the application Ex. PW2/J which was containing the order regarding release of motor cycle by the accused and his signature was obtained. Whereas as per the panch witness the complainant was asked to write an application by the accused and complainant wrote the application and handed over to the accused. As per the complainant the bribe amount was accepted by the accused with his right hand and kept in front left pocket of his shirt. Whereas as per the panch witness bribe amount was kept in the drawer of the table and the same was not recovered from the drawer of table but was recovered from back pocket pant of the accused. Neither the complainant nor panch witness deposed that the washes were taken at the spot. Rather panch witness categorically denied that washes were taken at the spot and he deposed that after the accused was apprehended the raiding party stayed there for about ten minutes.The most material thing is that Investigating Officer has not seized the remaining GC note of Rs. 100/- from the complainant. In view of the above discussion, I am of the view that prosecution has failed to prove its case against the accused. Accused is acquitted. His bail bond cancelled. Surety discharged”.
5. Aggrieved by the aforesaid decision, learned APP for the State/appellant submits that the impugned judgment is based on imagination, presumption, conjectures and cannot stand the scrutiny of law.
5.1. It is submitted that the evidence surfaced during the course of trial was not properly appreciated, that mere contradiction in the statement of witnesses cannot demolish the whole case unless contradictions are material in nature. Learned APP for the State further submits that Trial Court has erred in disbelieving the prosecution case, and that it has not been denied by any of the witnesses that the accused had accepted the bribe and in cases of this nature, the basic premise is demand and acceptance of bribe which has been duly proved by the prosecution.
5.2. It is also argued on behalf of State by learned APP that learned Trial Court has erred in ignoring the fact that at the time of raid, money was recovered from the back pocket of pant of the accused and the wash of the same had turned pink when it came in contact with Sodium Carbonate. It is stated that Trial Court has ignored the settled law that if statements of eye witnesses are truthful in nature, then the accused can be convicted without any further corroboration. It is also stated that conviction can be done solely on the basis of testimonies of police officers even if other witnesses have turned hostile during trial.
6. On the other hand, learned counsel for the respondent vehemently opposes the present appeal and states that the impugned judgment has been passed in accordance with settled law, and respondent has rightly been acquitted since the prosecution had failed to prove its case beyond reasonable doubt, the prosecution has also failed to prove that accused had demanded bribe amount.
6.1. Learned Counsel for the respondent places reliance upon the judgments of Hon‟ble Supreme Court in Sejappa v. State (2016) 12 SCC 150 and Mukhtiar Singh v. State of Punjab (2017) 8 SCC 136to contend that proof of demand of bribe is essential to establish guilt under the alleged offences.
6.2. It is further submitted on behalf of respondent that there were material contradictions between the testimonies of the witnesses and that the complainant as well as panch witness did not support the case of prosecution before the learned Trial Court and the Court has not committed any error by acquitting the respondent due to lack of evidence and corroboration. Further, reliance has been placed on the judgments of Hon‟ble Supreme Court in Ram Prakash Arora v. The State of Punjab AIR 1973 SC 498; T. Subramanian v. The State of T.N. AIR 2006 SC 836; and State of Punjab v. Madan Mohan Lal AIR 2013 SC 3368.
7. I have heard both the parties at length and have perused the material on record.
8. Before getting to the merits of the case, it is important for this Court to look into the relevant provisions of Prevention of Corruption Act, 1988 (as they stood before the Amendment Act, 2018). The same are reproduced herein under:
8.1. Section 7 of P.C. Act, 1988 provides:
8.2. Section 13 of P.C. Act, 1988 provides:
9. The essential ingredients of an offence under Section 7 and Section 13(1)(d) of P.C. Act have been explained by the Hon‟ble Apex Court in Neeraj Dutta v. State (Govt. of NCT of Delhi) 2022 SCC OnLine SC 1724, as under:
10. As held by Hon‟ble Apex Court in A. Subair v. State of Kerala (2009) 6 SCC 587, conviction under Section 13(1)(d) is not possible in absence of proof of demand by a public servant, and mere recovery of currency notes by itself will not be sufficient proof of demand or acceptance of bribe. Further inState of Punjab v. Madan Mohanlal Verma (2013) 14 SCC 153, it has been held as under:
11. In the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh (2015) 10 SCC 152, the Apex Court summarised the well-settled law on the subject which reads as under:
12. Similarly, the Hon‟ble Supreme Court in Krishan Chander v.State of Delhi(2016) 3 SCC 108observed that demand of bribe is sine qua non to convict the accused for offences punishable under Section[7] and 13(1)(d) read with Section 13(2) of the PC Act.
13. The aforesaid principles stand affirmed by the Hon‟ble Apex Court in the recent 5-judge bench decision of Neeraj Dutta v. State (Govt. of NCT of Delhi) (supra) though with a clarification that demand of bribe, which is to be proved at the first instance by prosecution, can be proved by circumstantial evidence in absence of direct oral and documentary evidence.
14. Thus, the lawstands settled that mere recovery of tainted money from accused is insufficient for conviction, unless there is evidence to first show that the bribe was demanded by the accused or that the money was accepted voluntarily as a bribe.
14.1. In the present case, different versions are available on record as to when and how the respondent/accused had demanded bribe from the complainant. As stated by complainant in his cross-examination, the respondent had asked him to obtain necessary permission from the concerned ACP for the release of his motorcycle and while instructing so that the respondent had not demanded any bribe from the complainant. Further as per the initial complaint, the respondent was alleged to have demanded Rs.200/- from the complainant on 01.09.2004 and the respondent had asked him to come on the next day after 5 PM. The complainant, however, in his examination before the Trial Court deposed that he had not met anybody at the police station on 01.09.2004 and it was in the morning of 02.09.2004 that he had met the respondent at police station and the respondent had asked him to meet him in the evening.
14.2. There are further contradictions between the statements of complainant and panch witness regarding the meeting/transaction that took place at the spot. While the complainant deposed that during the said meeting, he had shown the order of ACP to the respondent and the respondent had written something on that order and asked him to put his signatures and then demanded Rs.100/-, upon which the complainant took out those treated GC notes and gave to the respondent. Deviating from this version of complainant, the panch witness deposed that respondent had asked the complainant to write an application for getting his motorcycle released, and after writing and submitting this application, the respondent had demanded a fee for the same. It was further deposed that complainant had then inquired about the amount of fee, which was stated to be Rs.100/- by the respondent.
14.3. Thus, in such circumstances, there is lack of evidence to show that the respondent had demanded either Rs.200/- or Rs.100/- for releasing the motorcycle of the complainant, which otherwise had been ordered to be released by the concerned ACP in writing.Also, there is no corroborative evidence in the form of any electronic record containing any transcript or conversation that may have taken place between the respondent and the complainant either on the day of trap or on day before it.
15. As far as recovery of bribe is concerned, the case of prosecution as also recorded in post-trap proceedings, is that the respondent had accepted the bribe of Rs.100/- and kept the same in back pocket of his pant. On his personal search, the said currency note was recovered from his pant‟s back pocket and wash of the pant was also taken. However, as per the complainant‟s deposition, the bribe amount was accepted by the respondent with his right hand and kept in front left pocket of his shirt, which he later kept in the back pocket of his pant, but the wash of his shirt was not obtained by the prosecuting agency. On the other hand, panch witness deposed that respondent had kept the amount in the drawer after taking the same from the hands of complainant.
16. Further, nothing was recorded by the prosecuting agency as to what was done with the second GC note of Rs.100/- which was treated with phenolphthalein powder and whether the same was taken into possession by concerned official of trap team for any further proceeding. It only emerged in the cross-examination that the complainant had continued with the possession of same. PW-10 also deposed that the other GC note of Rs.100/- remained with the complainant and no memo was prepared to reflect that the said note was being retained by him, and no statement to that effect of the complainant was recorded.
17. Even to invoke the presumption under Section 20 of the Act in respect of an offence under Section 7, it is for the prosecution to first establish that the accused has accepted or obtained illegal gratification or any valuable thing from any person, so as to presume that the same was for a motive or reward such as is mentioned in Section 7.
17.1. The position in this regard was explained by Hon‟ble Apex Court in B.Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55, as under: "9...In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(i) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.
17.2. In State of Maharashtra v. Dnyaneshwar Laxman Rao(2009) 15 SCC 200, the Hon'ble Supreme Court had expressed as under:
17.3. In the present case, as observed in preceding para,the recovery of GCnote of Rs.100/- from the possession of respondent is itself under question, and the two main witnesses i.e. the complainant and panch witness have not supported the case of prosecution as far as acceptance of bribe and recovery proceedings are concerned. On the one hand, the complainant has not deposed anything on the aspect of as to how the tainted notes were recovered from the respondent and washes of his pant were taken, and on the other hand, the panch witnesshas deposed that the washes of his hand and pant were not taken on the spot, rather same was done after they had reached the office of prosecuting agency,which is contrary to what was contended by the prosecution.
18. It is pertinent to note that the case of the prosecution primarily relies upon two witnesses, i.e., the complainant (PW-2) and the panch witnesses i.e. independent witness (PW-7), as they were either directly involved or physically present to witness the transactions that took place. However, both the witnesses,before the learned Trial Court, deposed contrary to the version of prosecution on several material aspects, to the extent that they were declared hostile and crossexamined by the learned APP for the State. PW-10 Shri BS Yadav, who led the trap in instant case, had deposed before the learned Trial Court that although there were many police officials at P.S. Narela, none of them was asked to participate in the proceedings since the team laying trap was carrying an independent panch witness. However, the said witness only deposed contrary to the story of prosecution on certain material aspects.
19. In the case at hand, there exist contradictions among the testimonies as to when, where and how the bribe was demanded by the respondent, how was the same accepted by him, and in what manner were the recovery proceedings carried out by the Trap laying team.
20. The present circumstances also compel this Court to take note of the fact that it has been repeatedly held by the Hon‟ble Apex Court that in case of an appeal against acquittal,there has to be clinching material on record to show that the Trial Court committed an error in acquitting the accused, and mere fact that two views are possible on the basis of evidence will not be sufficient to reverse an order of acquittal.
20.1. The scope of interference by Courts in case of acquittal has been dealt with by Hon‟ble Apex Court in the case of Sanwat Singh &Ors. v. State of Rajasthan1961(3) SCR 120, in the manner as under: “The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case 1934 L.R. 61 I.A. 398 afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
20.2. In Allarakha K. Mansuri v. State of Gujarat 2002(1) RCR(Criminal) 748, the Hon‟ble Apex Court had held that in cases where reversal of acquittal is sought and when two views are possible, the view favouring the accused is to be adopted. The relevant observations are reproduced herein-under: “...The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted."
20.3. Further, in Kunju Mohd. v. State of Kerala, (2004) 9 SCC (Crl) 1425, Hon‟ble Supreme Court had explained the legal position in this regard in the following manner: “This Court in Dhanna v. State of M.P. had laid down that though the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. While doing so it ought to bear in mind: first that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. Secondly, it should bear in mind that every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him, he would retain that benefit in the appellate court also. Thus, the appellate court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed”.
21. Thus, an order of acquittal should not be disturbed in appeal under Section 378 of Cr.P.C. unless it is perverse or unreasonable, andthere must exist very strong and compelling reasons in order to interfere with the same. Guided by the principles of Hon‟ble Apex Court,this Court is not convinced by the arguments raised on behalf of State that the learnedTrialCourt has committed an error in appreciating and considering the evidence, the testimonies, and the material placed before it in order to reach a conclusion that the prosecution had failed to prove its case beyond reasonable doubt against the accused person.
22. A perusal of record reveals that the evidence which was brought on record by the prosecution before the learned Trial Court was insufficient to return a finding of the guilt against the respondent herein.
23. For the reasons stated herein-above, the present appeal stands dismissed without any order as to cost.
SWARANA KANTA SHARMA, J FEBRUARY 13, 2023