Sahib Singh v. State

1. Feeling aggrieved by the judgment dated 20"" August, 2011 passed by the Special Judge (PC Act)-06, Tis Hazari, Delhi in CC No.185/09 vide which appellant Sahib Singh was convicted under Section 7, 13(l)(d) punishable under Section 13(2) of the POC Act, 1988 r/w Section 120B of IPC and accused Harish guilty under Section 7 of POC, 1988 Act r/w Section 120B ofIPC and order on sentence dated 8"^ September, 2011 vide which both the appellants were sentenced to undergo RI for a period of one Crl. Appeal No.1222 and 1225/2011 Page[1] of 19 year with fine ofRs.5,000/- in default to undergo simple imprisomnent for further period of 3 months, separate appeals bearing nos. 1225/2011 and 1222/2011 have been preferred by thera. th

2. During the pendency of the appeal, Sahib Singh expired on 10 December, 2012 and vide order dated 15"^ April, 2013, his legal heirs were allowed to continuewith the appealto be decided on merits.

3. Succinctly stated, prosecution case is as follows On 6"' May, 2005, complainant Somi, S/o Chander Bhan came to Anti CoiTuption Branch, Delhi and gave a statement alleging inter alia that on 5'^' May, 2005, he along with his cousin brother Raj Kumar was going to Clock Tower, Shakti Nagar from Lai Bagh, Azad Pur on a two wheeler scooter bearing No. DL 8 5C 9216. At Check Post near gandanala, his scooter was stopped by Sahib Singh who asked for the documents of the scooter including pollution certificate. Since he was not having the pollution certificate, Sahib Singh told him that his vehicle will be impounded. He pleaded that he was a poor man, thereupon Sahib Singh demanded Rs.lOO/- for releasing the vehicle, however, he was not having Rs.lOO/-. Therefore, his driving licence as well as mobile make garud bearing No.20572030 belonging to Raj Kumar was kept by him and he was asked to pay Rs.lOO/- on 6^'' May, 2005 at 4:00 p.m. and then take back the driving licence as well as mobile. He was further asked to give the amount to a shopkeeper near the picket andto take backthe licence. Sahib Singh would take bribe tlu'ough that shopkeeper, however, he is against paying any bribe, therefore, he prayed for action. Statement of the complainant Ex.PW4/A was recorded by PW7-ACP then Inspector B.S.Yadav in the presence of panch CrI. Appeal No,12?.[2] and 1225/2011 Page 2of19 witness-Mahesh Kumar. The complainant had brought one GC note of Rs.lOO/- which was handed over to him and he recorded its serial number in the pre-raid report Ex.PW4/B. Phenolphthalein powder on those GC notes was applied by Sh.B.S.Yadav and demonstration was given to thepunch witness and the complainant by touching the right hand of panch witness with those treated GC notes and his wash of right hand in the solution of Sodium Carbonate was taken which turned into pink. Thereafter hands of panch witness were got washed with the soap and that solution was thrown away. The GC note was given to the complainant who kept the same in the pocket of his shirt. Panch witness was instructed to remain close to the complainant and to overhear the conversation and after being satisfied that bribe had actually been gwQn, panch witness was asked to give a signal by putting his hand over his head. The complainant was also instmcted to remain close to panch witness in such a manner that he could be able to see the transaction and hear the conversation and give the bribe money on specific demand. On the same day, at about 3:45 pm, Inspector B.S. Yadav along with the complainant, panch witness. Inspector K.S. Pathak, Sub-Inspector Sumer Singh along with 3 or 4 other members of raiding party left Anti-CoiTuption Branch for Gur Mandi Ganda Nala, Model Town in a government vehicle and reached there at about 4:00 pm. The government vehicle was left at the gate of Gur Mandi and Inspector K.S. Pathania remained in that vehicle. Complainant and panch witness were reminded about the instmctions given to them in preraid proceedings and they were sent towards police picket Ganda Nala, Gur Mandi. Inspector B.S. Yadav along with members of raiding party followed them and took their suitable positions near CrI. Appeal No.1222 and1225/2011 Page 3of19 /- / •V 2^" police post. Outside the police picket, both the accused were standing. The complainant talked to Constable Sahib Singh. Sahib Singh asked him to give the money to accused Harish Kumar. Thereafter, the complainant gave GC note of Rs.lOO/- in the right hand of accused Harish which he kept in the left side pocket of his shirt. Harish went to his shop and brought one envelope and handed over the same to the compkinant. After seeing the transaction, the panch witness gave the pre-determined signal to themembers ofthe raiding party who came there and apprehended both the accused persons. On the instructions of Inspector B.S. Yadav, panch witness recovered that GC notes from the pocket of the shirt of the accused- Harish which was taken into possession vide seizure memo EX.PW4/C. Thereafter right hand wash of accused Harish was taken in the colourless solution of Sodium Carbonate which turned into pink. That solution was transferred into two empty small clean bottles which were sealed with the seal of BSY. Wash of left pocket shirt of Harish was also taken and seized vide seizure memo EX.PW4/E. The driving licence of the complainant and mobile phone were seized vide seizure memo Ex.PW4/F. Thereafter rukka EX.PW7/A was prepared and was sent through Constable Jai Prakash to Police Station, Anti-Comiption Branch for registi'ation of the case on the basis of which FIR, Ex.PW12/A was got recorded by PW12-SI Hari Om. Thereafter, Inspector K.S. Pathania was called at the spot and custody of both the accused was handed overto him along with case property. Inspector K.S. Pathania prepared site plan EX.PW14/A at the instance of complainant andpanch witness. Both the accused were an'ested. The case property was deposited in CrI. Appeal No.1222 and 1225/2011 Page 4of19 malkhana. During the course of investigation, the case propeitywas sent to FSL from where result Ex.PW14/A was received. A letter of request along with documents was sent to DCP for grant ofsanction to prosecute accused Sahib Singh which was accorded by PW-11 Sh.Virender Singh. After completing investigation, charge sheet was submitted against both the accused.

4. Both the accused were charged for offence punishable u/s 7 of the Prevention of Cormption Act, 1988 r/w Section 120B IPC. Additionally Sahib Singh was also charged for offence u/s 13(l)(d) punishable u/s 13(2) of Prevention of Corraption Act, 1988. Both the accused abjured the guilt and claimed trial.

5. In order to substantiate its case, prosecution examined 14 witnesses. All the incriminating evidence was read over to both the accused while recording their statement u/s 313 Cr.P.C. wherein they denied the case of the prosecution. Accused Harish Kumar pleaded that neither he demanded any bribe nor accepted the same. He was victim of circumstances. He did not know what transpired between the complainant and the co-accused. He was not even aware as to what was lying in the envelope which the complainant was having. Sahib Singh also denied having demanded or accepted any bribe. According to him, he was notworking as traffic police at the relevant time. The checking of vehicle is entrusted to traffic police, lie never asked for bribe from the complainant or other witness, namely, Raj Kumar. Raj Kumar is abad character ofthe area and black mailer who had dragged 2-3 other officials in the same fashion. However, none of thempreferred to lead anydefence evidence. CrI. Appeal No.l222 and 1225/2011 Paie 5of19

6. Vide impugned judgment and order, both the appellants were convicted and sentenced as mentioned hereinbefore.

7. Assailing the findings of the learned Special Judge, Sh. Anil Soni, learned counsel for the appellant-Harish submitted that Harish is a tempo driver. The charge against him was u/s 7 of Prevention of Corraption Act r/w Section 120 B IPG, however, he has been convicted for offence u/s 13(l)(d) of POC Act, 1988 and punishable u/s 13(2) of POC Act r/w Section 120 B IPG as if he is a public servant. As per the prosecution case, when the demand ofbribe was made by the co-accused Sahib Singh on 5'^ May, 2005, he was notpresent at the spot. Evenonthe date of incident, he was not on the check post. Absolutely no evidence was led by the prosecution to prove that there was a conspiracy between the two coaccused. In this regard heavy reliance was placed on the cross-examination ^ ofthe complainant wherein he deposed that when on the asking ofSahib Singh, he gave Rs.lOO/- to Harish, he was surprised and thereafter looked at Sahib Singh. When Sahib Singh nodded his head, then Harish took the same. Therefore, where is the question of meeting of minds? No evidence has been led by the prosecution to prove that this appellant was having the knowledge that it was bribe money. Although it was not disputed during the course of arguments that Rs.lOO/- was given to him which was recovered from his possession but it was submitted that the evidence is conspicuously missing that the appellant was having the requisite Imowledge that it was bribe money. Therefore, he could not have been convicted for the said offence. Reliance was placed on Prem Singh Yadav vs. CBI, 2011(2) JCG 1059; K. Subba Reddy vs. State ofAndhra Pradesh, 2008 Grl.LJ 345 and Virendranath vs. State of Maharashtra, (1996) 11 see 688. CrI. Appeal No.1222 and 1225/2011 Page 6of19 ^0

8. Assailing the findings of the learned Special Judge, counsel for appellant-Sahib Singh submitted that as per the case ofprosecution, on S*'' May, 2005 itself, the driving licence of complainant as well as mobile phone of Raj Kumar was kept by this appellant to be retimied on payment of Rs.lOO/-. However, PW13-Sumer Chand, uncle of Raj Kumar has deposed that the mobile is inhis name and this mobile telephone was given by him for use to his nephew Raj Kumar on 6'^ May, 2005. Ifthe mobile itself was given to Raj Kumar on 6'^ May, 2005 bySumer Chand, how this mobile could be handed over by the complainant to Sahib Singh on 5^'' May, 2005. Furthemore, although it is the case of the prosecution that the driving licence of the complainant was taken into possession but testimony of PW3-Kartar Singh is silent regarding deposit of driving licence. The panch witness didnot identify any of the accused. Moreover, according to Inspector B.S.Yadav, the bribe amount was taken out from the pocket of Harish by the panch witness, however, testimony of panch witness is conspicuously silent in this regard. Moreover, the punch witness did not hear any conversation between Sahib Singh and the complainant as according to him, he was standing outside the police booth whereas the talks between the complainant and Sahib Singh took place inside the booth. Moreover, Raj Kumar, who was allegedly accompanying the complainant on 5'^' May, 2005 when the mobile phone and driving licence were kept by Sahib Singh for non-payment of bribe amount, although was examined as PW-11 but his testimony is confined to handing over the copy of the registration certificate of the scooter. He has not deposed anything regarding the incident which allegedly took place on 5"" May, 2005. As such, the very genesis of the case is doubtful.

9. Reference was also made to an apphcation moved u/s 391 r/w Scction 482 Cr.P.C. filed by the appellant for leading flirther evidence for Crl. Appeal No.1222 and 1225/2011 Page 7of19 showing that a specific suggestion was given to the complainant that Raj Kumar is a bad character of police station Sabzi Mandi but he pleaded his ignorance. In his statement u/s 313 Cr.P.C. also same plea was taken by the appellant that he is a blackmailer who had dragged 2-3 officials in the same fashion but at that time he had no details of the cases. Now, under RTI Act he has come to know that as many as 14 cases are pending against Raj Kumar whereas the complainant is also arrested in a case u/s 324/34 IPG, Police Station Adarsh Nagar, Delhi. Under the circumstances, it is submitted that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. As such, the appellant is entitled to be acquitted. It is further submitted that during the pendency of the appeal, the appellant has expired and the present appeal has been pursued by his family members. He was a constable in Delhi Police and was suspended after the registration of this case. All the benefits accrued to the appellant have not been released to his family members due to pendency of this case. As such, it is submitted that even on humanitarian grounds, a liberal view is required to be taken.

10. ReUance is placed on State ofPunjab vs. Madan Mohan Lai, AIR 2013 SC 3368 Hari Singh Yatlav vs. State, Crl.A.464/2004 dated 18.02.2014 S.K-Singhal vs. State (CBI), 2013 (136) DRJ 431 Chironjilal vs. State ofM.P., 2008 Crl.L.J 1784(Madhya Pradesh High Court) RaghhirSingh vs. State ofPunjab, 1976 Crl.L.J 172 (Supreme Court ofIndia) State ofRajasthan vs. Mohan Lai, 2009 (2) RCR (Crl.) SC 812 Sanjiv Kumar vs. State ofHaryana, 2010 (4) RCR (Crl.) 891 Roshan Lai Saini vs. CBI, 2011 (2) RCR (Crl.) 36 (Delhi) State (Govt. NCT ofDelhi) vs. Girdhari Lai Verma, 2011 (3) JCC 1744 Narayan Swami vs. OfMaharashtra, 1968 Crl.L.J. 657 (S.C.) The Pubic Prosecutor (A.P.) vs. Baggu Rama Murti & Ors., 1973 Crl.L.J.1761 (Andlu-aPradesh High Court) Kanti Prasad Tyagi vs. State ofDelhi, 2014 (1) JCC 803 DHC Rajinder Kumar Narang vs. State, 2014(2)JCC 1085 (Delhi HighCourt) Crl. Appeal No.1222 and1225/2011 Page 8of19

11. Countering the submissions of learned counsel for the appellant, learned Additional Public Prosecutor for the State subletted that the fectum of payment ofbribe, its acceptance and recovery has been proved by the prosecution beyond reasonable doubt. Even the panch witness has supported the case of prosecution in all material particulars except for identifying the accused. However, the identity of the accused is proved fi-om the testimony of the complainant and other witnesses. The impugned judgment does not call for any interference. As such, the appeals are required to be dismissed. Appeal No.1222/2011 (filed by Harish Kumar)

12. As per the prosecution case, on 5"^ May, 2005, while PW4-Soni along with PWll-Raj Kumar were going on two-wheeler scooter and reached at Check Post near Ganda Nala, they were stopped by co-accused Sahib Singh who asked for the documents of the scooter including pollution certificate. Since the complainant was not having the pollution certificate, he was told that the vehicle would be impounded. A sum of Rs.lOO/- was demanded by Sahib Singh as bribe for releasing the vehicle. The driving licence of the complainant and mobile phone of Raj Kumar were kept by Sahib Singh to be returned on the next day when Rs.lOO/will be paid by the complainant. It is alleged that the complainant did not want to pay bribe, therefore, approached the Anti-Con-uption Branch. A trap was laid pursuant to which one panch witness-Mahesh Kumar, PW[8] was joined. Thereupon the officials of the Anti-Comiption Branch along with the complainant and panch witness reached the spot where on the directions of Sahib Singh, complainant gave a note of Rs.lOO/- to this appellant which was kept by him in left pocket of his shirt. Thereafter, CrI. Appeal No.l222 and 1225/2011 Page 9of19 when the raiding party reached the spot, the recovery was effected from Harish Kumar. Recovery of Rs.lOO/- from the pocket of Harish Kumar is not even disputed by the learned counsel for the appellant, however, the crucial question for consideration is whether Harish Kumar was aware of the fact that it was a bribe money or there was any meeting of minds between Harish Kumar and the appellant-Sahib Singh. The sequence of events as narrated by the prosecution witnesses makes it clear that when demand of Rs.lOO/- was made bythe co-accused Sahib Singh on 5'^ May, 2005, this appellant was not present. As regards the incident of 6"^ May, 2005, the cross-examination of the complainant himself is very material wherein he deposed as under:- "The tempo stand of accused Harish was at a distance of about 20 meters from the checi< post. When I went to the spot along with the panch witness, accused Sahib Singh was present near the checic post and accused l-iarish was present near his tempo stand. The tall<s of bribe too/f place with accused Sahib Singh at the check post. When the talk took place with Sahib Singh, Harish was at his tempo stand. Accused Sahib Singh asked me at check post to hand over money to Harish who was standing near his tempo stand. When I tendered money to Harish at his tempo stand, Harish was bit surprised and when I told Harish that Sahib Singh had asked me to hand over money to him and then Harish looked at Sahib Singh and Sahib Singh nodded with head indicating to accept the money. When Sahib Singh directed me to handover the money to Harish, he told me that he (Sahib Singh) has to pay Rs.lOO/- to Harish. Harish handed over envelop to me at the asking ofSahib Singh "

13. The conduct of this appellant in getting surprised when the complainant tendered money to him and thereafter on receiving signal from Sahib Singh to accept the money itself raises a doubt as to whether he was having any knowledge that the amount paid to him was bribe money. Moreover, Sahib Singh also told the complainant that he was to pay Rs.lOO/- to Harish and, therefore, the said amount be paid to him. Admittedly, no demand was made by this appellant either on 5**" May, 2005 or on 6^'' May, 2005. Demand of illegal gratification is sine qua non for CrI. Appeal N0.122Z and 1225/2011 Page10 of 13 3> constituting an offence under the Act, 1988. As such, mere recovery of tainted money alone is not sufficient to record conviction.

14. In Prem Singh Yadav (supra), learned Single Judge relied upon the following judgments;- "in Suraj Mai vs. State (Delhi Administration), (1979) 4 SCC 725,it was held that mere recovery of money, divorcedfrom the circumstances under w/hich it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. iVIere recovery of money cannot prove the case of the prosecution against the accused in the absence of any instance to prove the payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. In the case of CM. Girish Babu (supra). The Supreme Court held that mere recovery of money from the accused by itself is not enough in the absence of substantive evidence of demand and acceptance. In this case the reliance was also placed on a three-Judge Bench judgment in M. Narsinga Rao v. State ofA.P. wherein it was held as under: