Krishan Chander v. State of Delhi

15. It was further contended by him that the demand of illegal gratification by the accused is a sine qua non for constitution of an offence under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. A mere production of the tainted money recovered from the appellant along with positive result of phenolphthalein test, sans the proof of demand of Page 9 Crl.A. @ SLP(Crl) No. 703/2015 9 bribe is not enough to establish the guilt of the charge made against appellant. In support of the above legal submission, he placed reliance upon the judgments of this Court in the cases of B. Jayaraj v. State of Andhra Pradesh[1], A. Subair v. State of Kerala[2] and State of Kerala & Anr. v. C.P. Rao[3], wherein this Court, after interpreting Sections 7 and 13(1)(d) of the PC Act, has held that the demand of bribe money made by the accused in a corruption case is a sine qua non to punish him for the above said offences. The learned senior counsel has also placed reliance upon the three Judge Bench decision of this Court in the case of P. Satyanarayana Murthy v. The Dist. Inspector of Police, State of Andhra Pradesh & Anr.4, in which I was one of the companion Judges, wherein this Court, after referring to the aforesaid two Judge Bench judgments on the question of necessity of demand of bribe money by the accused, has reiterated the view stated supra.

16. It was further contended by him that the High Court has failed to appreciate the fact that the

Page 10 Crl.A. @ SLP(Crl) No. 703/2015 10 complainant-Jai Bhagwan turned hostile during his examination before the trial court and did not support the prosecution case that the demand of Rs.1000/- as illegal gratification was made by the appellant from him for release of Krishna Kumar (PW-

2) on bail.

17. It was further contended by the learned senior counsel that the High Court has failed to reappreciate the evidence on record that Panch witness- Anoop Kumar Verma was directed by the official of Anti Corruption Branch to remain close to the complainant-Jai Bhagwan in order to hear the conversation and see the transaction between the appellant and the complainant-Jai Bhagwan. He further submitted that the learned Special Judge as well as the High Court have arrived at an erroneous finding without considering the fact that the appellant after reaching the spot walked with the complainant-Jai Bhagwan for about 15 to 20 steps while conversing with each other. Thereafter, both moved towards water trolley and after taking water proceeded ahead. Page 11 Crl.A. @ SLP(Crl) No. 703/2015 11 Around that time the complainant-Jai Bhagwan took out the tainted GC notes from his pocket and gave it to the appellant. From the said evidence, it is clear that panch witness- Anoop Kumar Verma did not hear the conversation between the appellant and the complainant-Jai Bhagwan. Therefore, there was no occasion to reach the conclusion that the appellant demanded any bribe from the complainant-Jai Bhagwan.

18. He further contended that Ranbir Singh, ASI who was Investigating Officer in the case in which the arrest of Krishan Kumar was made, accepted his bail bond and directed the appellant to release him. It is an admitted fact that Krishan Kumar was released on bail in the presence of and as per the directions of Ranbir Singh, ASI. Therefore, there was no occasion for the appellant to demand any bribe money from the complainant-Jai Bhagwan.

19. It was further contended that the High Court has failed to appreciate the fact that the alleged demand and the acceptance of amount of Rs. 1000/- is not corroborated by any independent witness despite the fact that the transaction alleged to have taken in a Page 12 Crl.A. @ SLP(Crl) No. 703/2015 12 public place.

20. On the other hand, Mr. P.S. Patwalia, the learned Additional Solicitor General (ASG), on behalf of the respondent-State sought to justify the impugned judgment and order passed by the High Court which is on proper appreciation of evidence on record and it is well reasoned and therefore not vitiated in law. Hence, he would submit that no interference with the same is required by this Court in exercise of its appellate jurisdiction.

21. He has submitted that the High Court has rightly re-appreciated the evidence of the complainant-Jai Bhagwan and other prosecution witnesses and concurred with the findings recorded on the charges. Further it was submitted by him that the trial court while appreciating the evidence of the complainant- Jai Bhagwan relied upon the decision of this Court in the case of Sat Paul v. Delhi Administration[5], paragraphs 41 and 51 of which decision in recording the finding on the charges against the appellant, are extracted hereunder:

Page 13 Crl.A. @ SLP(Crl) No. 703/2015 13

22. It was further submitted that the trial court by placing reliance upon the Sat Paul’s case (supra) found a part of the complainant-Jai Bhagwan’s testimony reliable and held that the demand of bribe money by the appellant from the complainant-Jai Bhagwan to release his brother Krishan Kumar (PW-9) can be said to be proved. He has placed reliance on the following finding and reasons recorded by the trial court, which relevant portion from para 16 reads thus: “16…It is true that complainant has not testified entirely in terms of his statement recorded u/s 161 Cr.P.C and he was declared hostile and was cross examined with the leave of the court. But simply because he did not testify strictly as per the prosecution case does not mean that his statement is altogether effaced from the Page 15 Crl.A. @ SLP(Crl) No. 703/2015 15 record.” Therefore, he would submit that the decision of the trial court on the charges framed against the appellant is based on proper evaluation of the evidence on record which has been rightly accepted by the High Court. Therefore, the same cannot be termed as erroneous in law and need not be interfered with by this Court in exercise of its appellate jurisdiction.

23. It was further contended by him that though the complainant-Jai Bhagwan turned hostile witness and he has deposed before the trial court by stating that he had inserted the tainted GC notes in the left pocket of appellant’s shirt. The trial court has held that evidence of Anoop Kumar Verma and inspector-Sunder Dev have supported the case of the prosecution who have demolished the version given by the complainant- Jai Bhagwan (PW-2) in his examination-in-chief.

24. He has further submitted that as far as proof of demand of Rs.1000/- as illegal gratification made by the appellant is concerned, the trial court has rightly recorded the finding of fact holding that the Page 16 Crl.A. @ SLP(Crl) No. 703/2015 16 appellant was caught red-handed accepting the bribe money at the Ditchau Kalan Bus Stand at Najafgarh and this evidence was sufficient enough to show that the complainant-Jai Bhagwan (PW-2) was asked by the appellant to bring the said amount as illegal gratification for having released Krishan Kumar (PW-

9) on bail.

25. We have carefully heard Mr. Sidhartha Luthra, the learned senior counsel on behalf of appellant and Mr. P.S. Patwalia, the learned Additional Solicitor General on behalf of respondent-State. On the basis of factual and legal aspects of the case and evidence on record produced in the case, it is clear that the High Court has recorded the concurrent findings on the charges framed against the Appellant in the impugned judgment and order. It has also failed to re-appreciate the evidence on record properly and consider the law on the relevant aspect of the case. Therefore, the said findings are not only erroneous in law but also suffer from error in law. Hence, the same is liable to be set aside. Page 17 Crl.A. @ SLP(Crl) No. 703/2015 17

26. We are of the view that as the complainant-Jai Bhagwan in his examination-in-chief before the trial court has categorically stated that it was Ranbir Singh, ASI (PW-11) who demanded Rs.5000/- for release of his brother, Krishan Kumar (PW-9) in connection with the offences registered against him in FIR No.662 of 2004, the trial court has wrongly accepted a part of testimony of the complainant-Jai Bhagwan while recording such findings on the charges to convict the appellant when there is nothing on record to show that it is the appellant who had demanded bribe money from the complainant-Jai Bhagwan. In his examination-in-chief before the trial court, he categorically stated thus:- “……One Police Officer who was in civil uniform, who was the IO of that case, met me in the Police station told me that I would have to spend Rs.5000/- for the bail of my brother……On the directions of that IO, I had given Rs.4000/- to accused Krishan on account of duress. That IO asked me that he would send accused Krishan to collect balance amount of Rs.1000/- to Najafgarh.” During the trial, the said witness did not support the prosecution version and therefore he was declared Page 18 Crl.A. @ SLP(Crl) No. 703/2015 18 as hostile witness and thereafter, he was crossexamined by Mr. Alok Saxena, the learned Additional Public Prosecutor to the following effect: “I did not mention in my complaint that one ASI Ranbir Singh asked Constable Krishan Kumar to release my brother and he himself went for some other work and I requested Constable Krishan Kumar to release my brother and he demanded Rs.5000/- from me for releasing my brother (confronted with portion A to A of his complaint Ex. PW2/A…… It is incorrect to suggest that accused Krishan Kumar had demanded Rs.5000/- from me and today I am giving a false exception that one IO had demanded Rs.5000/- from me in order to save the accused……I did not tell to the police that after receiving signal from the panch witnesses, Raid Officer came near me and challenged the accused that he had taken Rs.1000/- as bribe from me on which accused became perplexed and he took out those treated GC notes from his pocket and threw the same on the ground (confronted with portion B to B of his statement-ExPW-2/H recorded). He has further stated that: “It is wrong to suggest that accused Krishan had accepted bribe from me in his right hand and kept the same in his pocket and after seeing raiding party. It is further wrong to suggest that I am deposing falsely.” The High Court has also erroneously appreciated the Page 19 Crl.A. @ SLP(Crl) No. 703/2015 19 same and held thus:

27. Adverting to the evidence of Ranbir Singh, ASI (PW-11) who is the Investigation Officer in the above case registered against Krishan Kumar; in his examination-in-chief before the trial court, he stated as under:- “……After getting Sri Kishan medically examined, the accused brought him to PS Nangloi. No surety of Sri Kishan was present in the PS at that time. After about one hour one Jai Bhagwan brother of Sri Kishan came to P.S. Nangloi and presented the bail bond of his brother Sri Krishan. I accepted the bail bond of Sri Kishan at 10.00 pm and gave instruction to the accused to release Sri Kishan. I reported back at P.S. Nangloi at 11.55 pm and made the entry vide DD NO. 29/A dated 29.7.2004. I also recorded about the arrest and release of Sri Kishan in this very DD, although I accepted the surety bond of Sri Kishan in this very DD, although I accepted the surety bond of Sri Kishan at 10.00 PM on 29.7.2004.” From the aforesaid admitted facts stated in his statement of evidence, it is very clear that it was Ranbir Singh, ASI, who directed the appellant to release Krishan Kumar. Therefore, at the time of his Page 20 Crl.A. @ SLP(Crl) No. 703/2015 20 releasing on bail, there was no occasion for the appellant to demand bribe money from the complainant- Jai Bhagwan as he was already released on bail in the above criminal case by Ranbir Singh, ASI, (PW-11).

28. We are unable to agree with the above contentions urged by the learned ASG that the complainant-Jai Bhagwan turned hostile witness in the case before the trial court, however, the statement of evidence of Anoop Kumar Verma (PW-6) and inspector-Sunder Dev (PW-12) was sufficient to support the case of the prosecution with regard to acceptance of bribe amount by the appellant from Jai Bhagwan (PW-2). This Court is of the view that whenever a prosecution witness turns hostile his testimony cannot be discarded altogether. In this regard, reliance is placed by the ASG on the decision of this court in the case of Rabindra Kumar Dey v. State of Orissa[6]. The relevant para 12 of the aforesaid case reads thus:

29. As far as the evidence of Panch witness- Anoop Kumar Verma (PW-6) is concerned, in his examinationin-chief, he stated thus: “…Thereafter, the complainant and the accused walked for 15-20 steps and had some Page 22 Crl.A. @ SLP(Crl) No. 703/2015 22 talk with the complainant and the complainant took out those GC notes from his pocket and gave in the right hand of accused which he kept in the left pocket of his shirt…” Anoop Kumar Verma (PW-6) in his examination-in-chief has not deposed as to the exact conversation that took place between the appellant and the complainant- Jai Bhagwan at the time when he had approached him to give bribe money. He has simply mentioned about “some talk” had taken place between them but has failed to bring to light the factum of demand of bribe money by the appellant from the complainant-Jai Bhagwan. Thus, it is amply clear that panch witness- Anoop Kumar Verma did not hear the conversation between the appellant and the complainant-Jai Bhagwan. Therefore, there was no occasion for both the courts below to reach the conclusion that the appellant demanded any bribe from the complainant-Jai Bhagwan.

30. The Investigation Officer (PW-10) in his evidence, has not at all spoken of the contents of the statement of the complainant-Jai Bhagwan (PW-2), recorded by him under Section 161 of the Cr.P.C. Further, PW-2 in the light of the answers elicited Page 23 Crl.A. @ SLP(Crl) No. 703/2015 23 from him in the cross-examination by Public Prosecutor, with regard to the contents of 161 statement which relevant portions are marked in his cross-examination and the said statements were denied by him, the prosecution was required to prove the said statements of the PW-2 through the Investigating Officer to show the fact that PW-2 Jai Bhagwan in his evidence has given contrary statements to the Investigation Officer at the time of investigation and, therefore, his evidence in examination-in-chief has no evidentiary value. The same could have been used by the prosecution after it had strictly complied with Section 145 of the Indian Evidence Act,

1872. Therefore, the I.O. should have spoken to the above statements of PW[2] in his evidence to prove that he has contradicted in his earlier Section 161 statements in his evidence and, therefore, his evidence cannot be discarded to prove the prosecution case.

31. It becomes amply clear from the perusal of the evidence of PW-10, I.O. in the case that the same has not been done by the prosecution. Thus, the Page 24 Crl.A. @ SLP(Crl) No. 703/2015 24 statements of PW-2 marked from Section 161 of Cr.P.C. in his cross-examination cannot be said to be proved in the case to place reliance upon his evidence to record the findings on the charge. The position of law in this regard is well settled by this Court in the case of V.K. Mishra v. State of Uttarakhand[7]. The relevant paras are extracted hereinbelow:

32. Further, the appellant in his examination under Section 313 of Code of Criminal Procedure, 1973 has, inter alia, stated thus: “Q 4: it is in evidence against you that on 28.07.2004 you demanded Rs. 5000/- as bribe from complainant Jai Bhagwan and you accepted Rs. 4000/- as bribe from him and asked the complainant to bring Rs. 1000/- on 30.07.2004 near Dichau Kalan bus stand, Najafgarh. What you have to say? Ans. It is incorrect.

XXX XXX XXX Q 14: It is evidence against you that at about 7:00 p.m. you came and you met with complainant and moved towards one water rairi and you demanded and accepted Rs. 1000/- as bribe from the complainant in the presence of panch witness with your right hand and kept the same in left pocket of your shirt. What you have to say? Ans. It is incorrect. Q 15: It is in further evidence against you that in the meantime panch witness gave predetermined signal and thereafter the members of raiding party came and you were apprehended and panch witness told the raiding officer that you had demanded and accepted the bribe of Rs. 1000/- from the complainant (PW-2) with your right hand and kept the same in your left pocket of your shirt. What you have to say? Page 28 Crl.A. @ SLP(Crl) No. 703/2015 28 Ans. It is incorrect.”

33. After a careful reading of the evidence of the complainant-Jai Bhagwan (PW-2), statements made by the appellant in his examination under Section 313 of Cr.P.C. as well as the evidence of Anoop Kumar Verma (PW-6) and inspector-Sunder Dev (PW-12), it is clear that there was no demand of bribe money by the appellant from the complainant-Jai Bhagwan.

34. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. Jayaraj (supra), A. Subair (supra) and P. Satyanarayana Murthy (supra) upon which reliance is rightly placed by the learned senior counsel on behalf of the appellant. The relevant paragraph 7 from B. Jayaraj case (supra) reads thus:

35. Further, in the case of Satvir Singh v. State of Delhi[8], this Court has held thus:

Page 31 Crl.A. @ SLP(Crl) No. 703/2015 31

36. In view of the aforesaid reasons, the approach of both the trial court and the High Court in the case is erroneous as both the courts have relied upon the evidence of the prosecution on the aspect of demand of illegal gratification from the complainant-Jai Page 33 Crl.A. @ SLP(Crl) No. 703/2015 33 Bhagwan (PW-2) by the appellant though there is no substantive evidence in this regard and the appellant was erroneously convicted for the charges framed against him. The prosecution has failed to prove the factum of demand of bribe money made by the appellant from the complainant-Jai Bhagwan (PW-2), which is the sine qua non for convicting him for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. Thus, the impugned judgment and order of the High Court is not only erroneous but also suffers from error in law and therefore, liable to be set aside.

37. For the reasons stated supra, the impugned judgment and order of the High Court as well as the trial court are set aside. The appeal is allowed. The Jail Superintendent is directed to release the appellant forthwith from the Jail if he is not required in connection with any other case. The Registry is directed to communicate the above portion of the order to the concerned Jail Superintendent to comply with the directions issued to him. Page 34 Crl.A. @ SLP(Crl) No. 703/2015 34 ……………………………………………………CJI. [T.S. THAKUR] …………………………………………………………J. [V. GOPALA GOWDA] New Delhi, January 6, 2016