* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No. 90/1999
% Reserved on: 3rd February, 2011
Decided on: 30th May, 2011
STATE (GOVT. OF NCT OF DELHI) ..... Appellant
Through: Mr. Manoj Ohri, APP for the State.
versus
GIRDHARI LAL VERMA ..... Respondent
Through: Mr. K.B. Andley, Sr. Advocate with
Mr. M. Shamikh, Advocate
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may Not Necessary
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MUKTA GUPTA, J.
1. This is an appeal against acquittal filed by the State wherein the Respondent after a trial by the learned Special Judge was acquitted for offence punishable under Section 161 IPC and Section 5(1) (d) read with Section 5(2) Crl. Appeal 90/1999 Page 1 of 12 of the Prevention of Corruption Act, 1947(in short 'PC Act') in case FIR No. 33/1987 at P.S. Anti Corruption Branch, Delhi.
2. Briefly the prosecution case is that the Complainant PW3, Jaipal Singh the Vice President of Yuva Janta Morcha on 4th December, 1987 lodged a complaint Ex. PW3/A with the Anti Corruption Branch that during the checking of votes from door-to-door by the supervisors of the election office, one Girdhari Lal Verma (Respondent herein) who was the supervisor of the Delhi Cantt area came to his office and told him that he had deleted 800 votes of Naraina area. The Respondent also dismissed the objections filed by the Complainant in respect of jhuggis situated in Kirby Place, Subroto Park and Dhaula Kuan. When PW3 wanted the electoral rolls to be corrected, the Respondent demanded `400/- for every polling booth. The Respondent also told the Complainant that if the complainant filed a claim, he would correct the votes deleted by him. PW3 alleged that even his name has been deleted from the list of voters. On the complaint of PW3, PW4 Sh. J.L. Khanna was associated as panch witness and pre-raid formalities by noting the numbers of the four currency notes of `100/- denomination were prepared. The said notes were treated with phenolphthalein powder. Since the appointed place of giving the bribe amount was at Bus stand on Ridge Road near Dhaula kuan, the raiding party reached at the spot. On reaching the appointed place, PW3, Crl. Appeal 90/1999 Page 2 of 12 the complainant told the raiding officer that he would be going towards old secretariat in his vehicle bearing No. DBR 65 and, the transaction would take place in the car on the way. The Maruti Van of PW3 bearing No. DBR 65 came at about 2:15 P.M. PW4, J.L. Khanna sat on the front seat by the side of the driver and PW3 and the Respondent on the rear seat. At about 3:00 P.M. the vehicle reached 5, Alipur Road at the office of Delhi Administration and from there the Maruti Van went to the office of Food & Supply situated at Under Hill Road. At 3:30 P.M. PW3 told the raiding party that the Respondent would be taking the bribe at Begum Zaidi Market, Moti Bagh where the office of Yuva Janta Morcha was situated and they would be reaching at the spot about 6:30 P.M. The raiding party took position at the said market. At about 6:30 P.M. Maruti Van reached the spot where PW3 again offered money to the Respondent and when PW4 gave the pre- appointed signal, the raiding party rushed towards the Maruti Van and apprehended the Respondent. `400/- were recovered from the left hand of the Respondent. Numbers of the G.C. notes were tallied and the left hand wash of the Respondent turned pink. The same were seized and sealed in a glass bottle. The Respondent was arrested and FIR was registered. On completion of investigation, charge-sheet was filed. After recording of the prosecution Crl. Appeal 90/1999 Page 3 of 12 witnesses, statement of the Respondent was recorded. The Respondent was acquitted vide the impugned judgment dated 20th November, 1997.
3. Learned APP for the State contends that the date of incident is 4 th December, 1987 and the Respondent was on leave on that day. The learned trial court while acquitting the Respondent has laid a lot of emphasis on the change of place of payment from Dhaula Kuan to Alipur Road to Moti Bagh near the office of the Complainant. The change of place was only an over- cautious approach of the Respondent and in no way belied the prosecution case. The trial court failed to appreciate that PW 3 the Complainant was cross-examined on the 9th February, 1996 after more than six years and thus variations are bound to take place in his testimony. In his statement under Section 313 Cr.P.C., the Respondent had admitted most of the facts except saying that he has been falsely implicated. The testimony of PW3, the Complainant is corroborated by the testimony of PW4 J.L. Khanna, the panch witness who accompanied PW3 throughout in the van. The conduct of the Respondent becoming nervous on seeing the raiding party is relevant under Section 8 of the Evidence Act. Slight variations in the testimony of PW4 as to how the Respondent was holding the bribe amount has been clarified in his cross-examination by the learned APP. Moreover the testimony of this witness was recorded after nine years of the incident and thus variations are Crl. Appeal 90/1999 Page 4 of 12 bound to occur in the said testimony. The contradiction between the statements of PW3 and PW4 as to whether the post raiding work was done at the office of Anti Corruption Branch or on the spot does not go to the root of the prosecution case and thus the Respondent could not have been acquitted on the said ground. The evidence of PW3 and PW4 is further corroborated by the testimony of PW7 the raid officer Insp. Abhay Ram. The CFSL report Ex. PW6/B further corroborates the testimony of the witnesses as it opined that the solution gave positive test for phenolphthalein and sodium carbonate. Referring to a decision of this Court in Sri Chand Gaur vs. CBI Crl. Appeal No. 252/2001 it is contended that when witnesses are examined after a long time, variations are bound to occur and accused cannot be granted benefit of those minor variations which do not go to the root of the matter.
4. Per Contra learned counsel for the Respondent has placed reliance on State of Andhra Pradesh vs. S. Swarnlatha & Ors. 2009 (4) C.C.C. (SC) 168 to contend that in an appeal against acquittal if two views are possible and the view taken by the learned trial court is probable then the Appellate Court will not interfere. It is contended that the trial of the Respondent was conducted under the PC Act, 1947 where unlike the Act of 1988 presumption was not available. Thus, the evidence of the prosecution has to be examined in the light of these two legal principles. PW1 Ram Kishan, Food and Civil Supply Crl. Appeal 90/1999 Page 5 of 12 Officer in his cross-examination has stated that SDM alone was competent to uphold the objection and rectify the list. Thus, it was not in the competence of the Respondent to rectify the list or make additions/alterations to the same. In the absence of such a power vested in the Respondent, he could have neither demanded the bribe nor would have been given the bribe for this work. PW 3 the Complainant himself in his examination-in-chief has given the reason for false implication of the Respondent. PW3 has admitted that he was an active worker of a political party and his vote has been deleted from the list of voters from the polling booth No. 41. The conduct of the Respondent declining the money after being offered four times is not in consonance with demand and acceptance of bribe. No evidence has been led to show that PW3 had filled the claim forms and no such document supporting the claim has been exhibited. Only photocopies were placed on record which were not accepted and were only marked by the learned Trial Court. Thus, the same cannot be read in evidence. Even, the complaint Ex. PW3/A does not indicate the date, month and the year of initial demand and thus this fact being stated for the first time in the examination in chief shows that it was a clear improvement in the testimony of PW3. PW3 has been duly confronted on this count. There are material improvements in the testimony of PW3 i.e. his having stated that the money was to be paid at Ridge Road, Dhaula Kuan and stating in his cross- Crl. Appeal 90/1999 Page 6 of 12 examination that he does not know which of the worker had filled up the claim forms. In regard to the original document, he has stated that the original documents must be in the party office and no verification of the claim form has been done by the investigating agency. There are contradictions in the testimony of PW4, the Panch witness also who has further stated that the money was kept by the respondent in his front pocket which was recovered by the Inspector. This witness has further stated that the Seizure memo of the papers recovered from accused was also prepared by the Police officials. PW 4 who was sitting in the front seat has in his cross-examination stated that the Respondent did not demand any money at any stage. In the absence of demand, no case for conviction under PC Act is made out. There is also discrepancy as to the place where the writing work i.e. the seizure memo etc. were filled and the hand wash of the respondent was taken. PW4 has stated that the hand wash was taken at the office of Anti Corruption Branch whereas the other witnesses have stated that the same was done at the spot and thus showing total manipulation. This part of the cross-examination has not been challenged by the prosecution and no re-examination of the witness has been conducted to clarify on the aspect that where the proceedings took place. All the witnesses have admitted that the Respondent did not make any demand throughout and PW3 was clearly instructed to give the money only when the Crl. Appeal 90/1999 Page 7 of 12 demand was made. Thus, in the absence of the demand, no money could have been paid to the Respondent. PW7 Inspector Abhey Ram in his cross- examination has admitted that he did not seize any objections or any photocopies thereof and thus the photocopies of the said documents placed on record have been planted. The decision of the trial Court acquitting the accused as the prosecution has failed to prove its case beyond reasonable doubt is correct. Thus, there being no illegality or perversity in the impugned judgment the present appeal be dismissed.
5. I have heard learned counsel for the parties and perused the record. Conscious of the limitation of interference in an appeal against acquittal, I would now proceed to examine the evidence on record and examine whether the judgment on the basis of said evidence falls in any of the categories laid down by the Hon'ble Supreme Court in case of Ganpat vs. State of Haryana, 2010 (10) SCALE 237 i.e. whether the learned trial court has ignored material evidence or material legal aspect. In case two views are possible, this Court will not interfere in this appeal against acquittal.
6. PW3 Jaipal Singh is the Complainant of the case. According to him, the Appellant told him to pay `400/- per polling booth and on the Complainant giving fresh objections thereafter he would set everything right. Crl. Appeal 90/1999 Page 8 of 12 There were number of polling booths and number of discrepancies in the voter lists. In was finally agreed with the Respondent to pay him `400/- only on 4th December, 1987 for one polling both. However, as per the complainant it was not decided for which polling booth this money was to be paid. The same sounds highly improbable. When the money was agreed to be paid, the polling booth for which it was being paid would have also been decided. This part of the testimony of PW3 is also not supported by the documents which were allegedly given in the form of list and objections. It has also not been proved for which polling booth the same related to. There is no doubt that during elections, the time available with the political parties is short and the Complainant would not wait to pay in installments and get the list corrected for one polling booth when it is not even decided for which one it is. I do not find the testimony of PW3 to be reliable on this count.
7. The next issue that arises is whether the prosecution has proved the demand by the respondent at the time of trap. PW3 Jaipal Singh was accompanied by PW4, the panch witness and the driver. PW 3 does not depose in his testimony that the Respondent demanded money while sitting on the rear seat of the car along with him. According to PW 3, he stated to the Respondent that he had brought the papers relating to one public booth as also the money and requested him to correct the voters list for one polling booth. Crl. Appeal 90/1999 Page 9 of 12 The Respondent told him that he had some work at his office at 5, Alipur Road regarding the transfers and that he would do the work first and then accept the papers and the money. The Respondent then enquired about PW4 Mr. Khanna, to which PW 3 replied that PW 4 wanted permit for cement and he had to get him the permit. PW3 again offered money to the Respondent but he was reluctant and he took the car to the office of Food & Civil Supply, Under Hill Road. PW3 again offered him the money at the Food & Civil Supply Office, but the Respondent told him that they had to go to the office at Begum Zaidi Marg and he would accept the money there. On the pretext of going to the office of the Civil supplies PW3 and PW4 came out of the car and informed PW7 that the Respondent would take money only in Zaidi Market. He also told the Inspector that they would reach the Market by 6.30P.M. whereas, the Respondent remained seated in the car. They came back and got into the car. On reaching Begum Zaidi Market, PW3 got down and went to the office for 2-4 minutes while PW4 and the Respondent remained seated in the car. PW3 came back. He again offered the money to the Respondent while sitting in the car and gave money and papers. The Respondent took the money in his left hand and list in the right hand on which PW4 gave the signal to the raiding party. It is thus evident that in the entire testimony of PW3 it is nowhere stated that the Respondent demanded money. Crl. Appeal 90/1999 Page 10 of 12 This evidence of PW3 is also corroborated by PW 4 who also in his testimony does not state that the Respondent demanded money rather has stated that at no stage money was demanded by the Respondent either initially or at the time of trap. Though, it is stated that money was given to the Appellant along with the voters list for correction and objections however, no documents have been seized from the right hand of the Appellant. No explanation has been offered by the prosecution as to why these papers were not recovered from the right hand of the Appellant by the raiding officer.
8. It is now to be examined that in the absence of any demand, would mere acceptance of money implicate the Respondent for offence punishable under Section 161 IPC and Section 5(1) (d) read with Section 5(2) of the PC Act, specially when the corroboration evidence of post raid proceedings is not authentic. Demand is an essential ingredient for an offence punishable under Sections 161 IPC and 5 (1) (d) read with 5 (2) of the PC Act. Section 4 of the PC Act lays down a statutory presumption that in any trial for offence punishable under Section 161 of the IPC or 5(1) (a) or (b) punishable under Section 5(1) the Court is duty bound to raise a presumption after it is proved that an accused person has accepted or obtain or admitted to obtain for himself or any other person any gratification or any valuable thing. This presumption is not available for offence punishable under Section 5(1) (d) read with Crl. Appeal 90/1999 Page 11 of 12 Section 5(2) of the PC Act. Hon'ble Supreme Court in Banarsi Dass Vs. State of Haryana (2010) SCC 450 has held that to constitute an offence under Section 161 IPC & Section 5(1)(d) of the PC Act it is necessary that there is a demand of money and the same is accepted for doing a favour. Demand of Money is a sine qua non for the conviction of the accused. Thus, in the absence of demand and the presumption, the offence punishable under Sections 161 and 5(1) (d) read with 5(2) of the PC Act has not been proved beyond reasonable doubt by the prosecution in the present case.
9. In the light of the facts elaborated above, I find that there is neither any illegality nor perversity in the view taken by the learned Trial Court. The impugned judgment does not warrant any interference. Appeal is dismissed.
(MUKTA GUPTA) JUDGE MAY 30, 2011 dk Crl. Appeal 90/1999 Page 12 of 12