Anil Kumar vs State (Nct Of Delhi)
2009 Latest Caselaw 3185 Del

                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               CRL. A. No.81/2001


                   Judgment reserved on : August 17, 2009

                   Judgment delivered on 30th November, 2009



#        Anil Kumar                             .....        Appellant

                          Through :      Mr. Sunil Malhotra, Advocate



                            Versus



         State (NCT of Delhi)            ....           Respondent

                            Through      :      Ashish Kumar, Advocate




         CORAM:

         HON'BLE MR. JUSTICE G.S.SISTANI

          1.     Whether reporters of local papers may be allowed to see
                 the Judgment ?                              YES
          2.     To be referred to the Reporter or not?      YES
          3.     Whether the Judgment should be reported in the Digest? YES

    G.S. SISTANI, J.

1. Present appeal has been filed under Section 374(2) of the Code of

Criminal Procedure, 1973, against the impugned judgment dated

12.01.2001 and order on sentence dated 23.01.2001 passed by the

learned Special Judge, Delhi in R.C. No.3(A)/96-DLI under section 7

and 13(1) (d) read with section 13(2) of the Prevention of

Corruption Act, 1988. By virtue of the said judgment the appellant

has been sentenced to undergo R.I. for a period of two years for the

offence committed under Section 7 of the Prevention of Corruption

Act, 1988. The appellant was also sentenced to pay a fine of

Rs.5,000/- and in default of payment of fine, he was directed to

undergo RI for a period of six months. Further, the appellant was

convicted under Section 13(1) (d) read with Section 13(2) of the

Prevention of Corruption Act and sentenced to R.I. for a period of

three years and a fine of Rs.5,000/-. In default of the payment of

fine, the appellant was directed to undergo R.I. for a period of six

months. Both the substantive sentences were to run concurrently

and the period of detention already undergone was to be

accordingly deducted.

2. Brief facts of the case as noticed by the learned Special Judge are

as under.

3. A case was registered on the basis of a complaint made by Sh.

Subhash Vashisth to S.P./CBI on 18.01.1996, alleging therein that

he was running a PCO with telephone nos.766800 and 629244 at

M/s Shiva Enterprises 7th Milestone, Ghaziabad, U.P. Sh. Anil Kumar,

in charge, lineman of the area, had come to his PCO on 17.1.1996

and demanded Rs.100/- per month. It was stated by Sh.Anil Kumar

that in case the amount as demanded was not paid, his telephone

line would be disturbed causing loss of thousands of rupees. Sh.

Anil Kumar further demanded the arrears of the previous year at

Rs.100/-, per month. When the complainant showed his inability to

pay the amount then Sh. Anil Kumar asked him to pay Rs.1,000/-

with one liquor bottle, the next day at his residence. Sh. Anil Kumar

also gave his address to the complainant. Since the complainant

did not want to give the bribe, he addressed a written complaint to

SP/CBI, ACB, New Delhi, which resulted in registration of a case.

Inspector R.V.S. Lohmor was entrusted with the investigation of the

case.

4. Inspector R.V.S. Lohmor verified the bona fide of the complainant

and accordingly organized the trap. Two independent witnesses Sh.

G.C. Sharma and Sh. Pradeep Chand of FCI Headquarters,

Bharakhamba Lane, New Delhi, were also associated with the case.

Pre-trap formalities were completed in the CBI Office and the same

were reduced to writing in the handing over memo. The

complainant produced a sum of Rs.1,000/- in the form of 10 G.C.

notes of Rs.100/- denomination, each, and a bottle of 21st Century,

Pure Malt Whisky. The numbers of these G.C. Notes was recorded

in the handing over memo. Thereafter, the G.C. notes were treated

with phenolphthalein powder and Inspector R.S. Tokas gave the

demonstration and explained the reaction which takes place

between Sodium Carbonate solution and phenolphthalein powder.

Personal search of the complainant was carried out and the G.C.

Notes treated with phenolphthalein powder were kept in the left

side upper pocket of the shirt worn by the complainant. The label

of the liquor bottle was signed by the witnesses as well as the inner

side of the cover of liquor bottle was also signed. The complainant

was directed to hand over the tainted money and the liquor bottle

to Sh. Anil Kumar only on his specific demand of bribe and not

otherwise. Sh. Pradeep Chand, an independent witness was asked

to act as Shadow witness. He was directed to remain as close as

possible to the complainant so that he may overhear the

conversation and see the transaction. He was further directed to

give a signal by scratching his head by both his hands. The CBI

trap party left the office at about 4:40 p.m. At about 6:30 p.m.,

shadow witness gave the pre-appointed signal and Inspector R.V.S.

Lohmor with the other witness, Sh. J.C. Sharma rushed into house

no.4/2748, Bihari Colony, Shahdara, Delhi. The other members of

the trap party also followed. At the instance of the complainant and

shadow witness, Inspector Harish Singh and S.I. Vivek Dhir caught

hold of one person by his left and right hand wrists, respectively.

The identity of the said person was later on revealed as Sh. Anil

Kumar, R.M./UP, Border Telephone Exchange, Ghaziabad, U.P. The

complainant and the shadow witness informed that Anil Kumar had

demanded Rs.1000/- and one liquor bottle as bribe from the

complainant and had also accepted the same. The bottle of whisky

was kept on the central table and the tainted money was kept in

the inner right hand side coat pocket. On the directions of

Inspector R.V.S. Lohmor, the bribe amount of Rs.1000/- in the form

of 10 G.C. Notes of Rs.100 denominations, each, were recovered

from the inner right hand side pocket of the coat worn by the

appellant, Anil Kumar. The bottle of whisky kept on the central

table was also verified. The sum of Rs.1000/- recovered as bribe

money; one bottle of whisky; two wash bottles; and the coat of

appellant were taken into possession and the post-trap formalities

were completed. Personal search as well as house search of

appellant was conducted. Specimen CBI Seal impressions were

taken on separate sheets of paper, recovery memo was prepared at

the spot and stamp of the CBI seal was put on each page of the

recovery memo. This memo was signed by all present. Accordingly,

on the basis of the said allegations, appellant, Anil Kumar, was

charge-sheeted. Post-trial, appellant was found guilty for the

offence punishable under Section 7 and 13(2) read with 13(1)(d) of

Prevention of Corruption Act. Aggrieved by the judgment and order

on conviction, the present appeal has been filed.

5. In support of its case, the prosecution had examined seven

witnesses. Statement of appellant, Anil Kumar was recorded under

Section 313 Cr.P.C., and three witnesses were examined by the

appellant in defence.

6. Learned counsel for the appellant while impugning the judgment

rendered by the trial court submits that the sanction order, Ex.PW-

1/A was not passed by the competent authority and as such the

present appeal is to be allowed on this ground alone. Learned

counsel further submits that even otherwise, the sanctioning

authority (PW-1) did not apply its mind at the time of granting

sanction and passed the sanction order, Ex.PW-1/A under pressure,

and the same is clearly borne out from the deposition of PW-1.

7. Learned counsel for the appellant next contends that even the

identity of the appellant, Anil Kumar, is disputed inasmuch as PW-2

has deposed that he was not sure whether the person present in

Court was the same person who was present in the house. Learned

counsel for the appellant submits that PW-2, the shadow witness,

has not supported the case of the prosecution and has deposed

that because of the noise of television, he was unable to hear the

conversation between the complainant and the appellant. It is

submitted by the counsel that the evidence of PW-2 clearly brings

out the falsity in the case of the prosecution.

8. Further learned counsel for the appellant submits that the evidence

of PW-4, complainant, is not reliable as PW-4 has made material

improvements in his statement before the Court when compared to

the statement made under section 161 Cr.P.C. It is submitted that

the entire story of the prosecution is improbable as the appellant

was a Mazdoor and not a line man and thus it was not in his domain

to cause hindrance in the telephone line of the complainant.

9. Learned counsel for the appellant submits that the appellant in his

statement under section 313 Cr.P.C. has denied all allegations and

no presumption arises against the appellant in terms of section 20

of the Prevention of Corruption Act. He submits that even

otherwise, had the appellant given time to the complainant to come

to his residence, the appellant would have waited for him to arrive.

However the fact that appellant was not at his residence when the

complainant arrived, goes to show that the appellant is innocent

and money was planted on him.

10. Learned counsel for the appellant further submits that the

prosecution has failed to join public witnesses, in spite of the fact

that the residences of the appellant was situated in a crowded

place and public witnesses were readily available. It is submitted

that defence witnesses have also supported the case of the

appellant and the present appeal is liable to succeed.

11. Per contra, learned counsel for the respondent/CBI submits that the

prosecution has been able to establish its case beyond any shadow

of doubt. Learned counsel for the respondent submits that the

sanction order is only a formality and proceedings cannot be held at

ransom on the ground that the sanction order was invalid. He

submits that sanction is only a formal requirement and it cannot be

said that there is failure of justice even if granted by the wrong

authority. Learned counsel for the respondent further submits that

the appellant has been caught red-handed and the same stands

corroborated by the evidence of PW-4, complainant and the

evidence of the trap laying officer, Pw-8. Learned counsel further

relies upon the case of State of U.P. Vs. Zakaullah reported at

(1988) 1 SCC 557 and submits that if the evidence of the trap

laying officer is trustworthy and reliable, in fact, that itself can be

the sole ground for conviction of appellant. Learned counsel further

submits that although PW-2 has deposed that he could not hear the

conversation, but PW-2 has clearly deposed that he saw the

appellant accepting Rs.1000/- and a bottle of whisky, and as per

section 20 of the PC Act, 1988 if it is proved that the accused has

obtained or attempted to obtain any gratification (other than legal

remuneration), it shall be presumed, unless the contrary is proved,

that the same was obtained as illegal gratification. He relies upon

the case of Madhukar Bhaskarrao Joshi v. State of

Maharashtra , (2000) 8 SCC 571 in support of the same. :

"11. .... The context in which the word is used in Section 4(1) of the Act of 1947 is, hence, important. As the wording on the relevant portion employed in the corresponding provision in the PC Act 1988 [Section 20(1)] is identical we would reproduce that sub-section herein:

―20. (1) Where, in any trial or an offence punishable under Section 7 or Section 11 or clause

(a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.‖

12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted ―as motive or reward‖ for doing or forbearing to do any official act. So the word ―gratification‖ need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like ―gratification or any valuable thing‖. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word ―gratification‖ must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.‖

12. I have heard learned counsel for the parties and scrutinized

the evidence on record. The submissions of learned counsel

for the appellant can be summarized as under:

i. Sanction order was not passed by the competent

authority.

ii. Even otherwise, sanctioning authority (PW-1) has

admitted that he had granted sanction under pressure.

iii. PW-4, complainant is unreliable as there are material

contradictions in his version.

iv. PW-2, shadow witness has been declared a hostile

witness.

v. Public witnesses were not joined by the prosecution.

vi. Defence witnesses have clearly supported the case of the

appellant.

13. The submissions of learned counsel for the respondent can be

summarized as under:

i. Prosecution has been able to establish its case beyond

any shadow of doubt.

ii. Sanction was granted by a competent authority after due

application of mind.

iii. Appellant was caught red handed.

iv. Evidence of the complainant (PW-4) and trap laying officer

(PW-8) is trustworthy and reliable.

14. Allegations of demanding and having accepted illegal gratification

in terms of money and a bottle of whisky were found to be true by

the trial court, against one Anil Kumar (appellant herein), a

government official, who was subsequently convicted under section

7, 13(1)d read with section 13(2) of the Prevention of Corruption

Act, 1988. Section 7 of the Prevention of Corruption Act reads as

under:

"7. Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any

person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause

(c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Explanations.--

(a) ****

(b) ―Gratification.‖ The word ―gratification‖ is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) ―Legal remuneration.‖ The words ―legal remuneration‖ are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) ―A motive or reward for doing.‖ A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) ****‖

Section 13 of the Prevention of Corruption Act reads as under:

―13. Criminal misconduct by a public servant.--

(1) A public servant is said to commit the offence of criminal misconduct,--

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or

(b) ****; or

(c) ****; or

(d) if he,--

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant

cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.--For the purposes of this section, ―known sources of income‖ means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.‖

15. Learned counsel for the appellant has strongly contended before

me that the sanction order, Ex.PW-1/A was not passed by a

competent authority and as such, the entire proceedings initiated

against the petitioner at the trial, were void. It is contended that

even otherwise, the sanctioning authority (PW-1) did not apply its

mind at the time of granting sanction and PW-1 was admittedly

under pressure. In my considered opinion, the learned Special Judge

of the trial Court has adequately dealt with this contention of

counsel for the appellant. The learned Special Judge has minutely

considered the evidence of PW-1 and observed that after going

through the statement of PW-1 (Shri Charan Singh, S.D.O., Phones,

Ghaziabad, UP) in the Court and the sanction order, Ex.PW-1/A,

passed by PW-1, it was clear that PW-1 was blowing hot and cold at

the same time. The learned Special Judge took into account that the

sanction order, Ex.PW-1/A was duly signed by PW-1, and wherein

PW-1 had mentioned that he being the S.D.O. (Phones), was the

competent authority to remove appellant, Anil Kumar; whereas,

while deposing before the Court, PW-1 took a somersault and on

19.12.1997, PW-1 stated that as per the service rules, the

appointing authority for regular mazdoor for telephones was D.G.M.

(Department of Telecommunication), who alone was the removing

authority for regular mazdoors, however, in the same breath, PW-1

stated that the sanction for prosecution was granted by him after

going through the record of investigation. Subsequently, PW-1 in

his statement recorded on 22.05.2000 under Section 311, Cr.P.C.

stated that A.G.M. (Admin.) and Assistant Director (Admin.), were

the competent authorities to appoint and remove regular mazdoors

and also that he had been pressurized by Sh. R.K. Dass (vigilance)

to sign the sanction order.

16. In my considered opinion, the learned Special Judge has correctly

observed that if PW-1 was not the competent authority, there was

no occasion for PW-1 to state the same in the sanction order, Ex.

PW-1/A that he, S.D.O. (Phones) was the competent authority to

remove Anil Kumar, regular mazdoor. Further, a bare perusal of the

sanction order, Ex.PW-1/A, clearly shows that the same was passed

with due application of mind and without any kind of pressure.

Sanction order, Ex.PW-1/A reads as under:

―4. And whereas, I, CHARAN SINGH, SDOP, being the authority competent to remove, said Sh. Anil Kumar, RM, UP Border Telephone Exchange, Ghaziabad, UP from service, after fully and carefully examining the materials placed before me, with regard to the aforesaid allegations and circumstances of the case and after due application of mind, consider that the said Anil Kumar, RM, should be prosecuted in the court of law for the said offences.

5. Now, therefore, I, CHARAN SINGH, SDOP, do hereby accord sanction u/s 19(1)(c) of PC Act, 1988, for the persecution of the said Sh. Anil Kumar, RM, UP, Border Telephone Exchange, Ghaziabad, UP for the said offences and any other offences punishable under other provisions of law in respect of the acts aforesaid and for cognizance of the said offence by the Court of competent jurisdiction.‖

17. The learned Special Judge has specifically observed that it was only

on 22.05.2000 (when PW-1 had been recalled under section 311 of

Cr.P.C.), that PW-1 had taken a plea that he had been pressurized

to sign the sanction order. PW-1 had not taken this plea when he

was examined for the first time in the Court on 19.12.1997. Thus,

there was no merit in the contention of counsel for the appellant

that PW-1 had been coerced into signing the sanction order. It is

also of significance to note that on 19.12.1997, PW-1 had deposed

that the sanction for prosecution was granted by him after going

through the record of the investigation; and in his cross-

examination recorded on 22.05.2000 under Section 311, Cr.P.C.,

PW-1 stated that he had thoroughly gone through the file and it was

wrong to suggest that he had not applied his mind while granting

sanction. Thus, PW-1 maintained a firm stand that he had carefully

examined the record of the case and only thereafter issued the

sanction order, Ex.PW-1/A. However, in view of the contradictory

statements made by PW-1, learned Special Judge considered it

expedient to ascertain the competent authority for the appointment

and removal of regular mazdoors in the concerned Department, and

called for the relevant Rules applicable at that time. It was found

that as per the Schedule of Administrative Powers in respect of

officers in Delhi Telephone District and Sub-Divisional Telephone

District, in case of Class IV employees, Assistant Divisional Engineer

was the appointing authority as well as the authority competent to

impose penalties. Deputy General Manager and other senior officers

were the appellate authorities. The court below also took into

consideration letter dated 2.1.2000 of Sh. R.K. Dass (Deputy

Engineer, Vigilance), as per which the Assistant Engineer and S.D.O.

were both of equal ranks and accordingly it was clear that S.D.O.

was also the competent authority to appoint and remove Class IV

employees including regular mazdoors.

18. In view of above, there is no ambiguity in the opinion rendered by

the trial court that PW-1, Sh. Charan Singh, who was the S.D.O.

(Phones), Ghaziabad (UP) at the relevant time, was the competent

authority who could have granted sanction for prosecution of the

appellant. I find no merit in the contention of learned counsel for

the appellant that PW-1 was not the competent authority to grant

sanction for prosecution of the appellant or that he had issued the

sanction order, Ex.PW-1/A, under pressure. Even otherwise, it is

settled position of law that the sanction order is only a procedural

requirement and any error or irregularity in the same, does not

vitiate the entire proceedings. Justice cannot be at the beck and call

of technical infirmities. In the case of Central Bureau of

Investigation Vs. V.K. Sehgal & Another, reported at (1999) 8

SCC 501: 1999 SCC (Cri) 1494, it has been held that a court of

appeal or revision is debarred from reversing a finding (or even an

order of conviction and sentence) on account of any error or

irregularity in the sanction for the prosecution, unless failure of

justice had been occasioned on account of such error or irregularity.

Similarly in the case of State Vs. T. Venkatesh Murthy reported

at (2004) 7 SCC 763 : 2004 SCC (Cri) 2140, it was observed as

under:

―14. In the instant case neither the trial court nor the High Court appear to have kept in view the requirements of sub-section (3) [of section 19 of the Prevention of Corruption Act, 1988] relating to question regarding ‗failure of justice'. Merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceeding unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The same logic also applies to the appellate or revisional court. .............‖

19. In the case of Paul Varghese v. State of Kerala,(2007) 14 SCC

783 it was held:

―8. The effect of sub-sections (3) and (4) of Section 19 of the Act is of considerable significance as noted in Parkash

Singh Badal v. State of Punjab 1 . In sub-section (3) the stress is on ―failure of justice‖ and that too ―in the opinion of the court‖. In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the ―failure of justice‖ is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or (sic failure of justice) has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction. Sub- section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as ―the old Act‖) corresponding to Section 19(2) of the Act, question relates to doubt about authority to grant sanction and not whether sanction is necessary.‖

20. In the case of C.S. Krishnamurthy Vs. State of Karnataka,

reported at (2005) 4 SCC 81, the Apex Court held as under:

―7. .......... It is no doubt true that sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant (sic) from harassment. But, the sanction should not be taken as a shield to protect corrupt and dishonest public servant. ......

21. Further I find no merit in the contention of learned counsel for the

appellant that PW-4 is an unreliable witness. PW-4, Sh. Shubhash

Vasisht (complainant) deposed that in January, 1996, he was

running a public call office with STD/ISD facilities at Seventh Mile

Stone, Prakash Industrial Area, Sahibabad District, Ghaziabad, U.P.

He had two telephones at the said PCO. On 17.1.1996, Sh. Anil

Kumar, appellant came to his PCO and told him that he was the line

man of telephone department and asked PW-4 to pay him a

monthly bribe of Rs.100/-, per telephone, or else his telephone line

would be disrupted causing loss of thousands of rupees. PW-4

further deposed that the appellant had also asked him to pay bribe

(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193.

for the last one year at the same rate. When PW-4 expressed his

inability to pay that amount, appellant asked him to give Rs.1000/-

and a bottle of liquor at his residence in Shahdara by the evening of

next day after 5.00 p.m. PW-4 was warned that if he did not

comply with the appellant's demands, the appellant would disrupt

his telephone. The next day, PW-4 made a complaint and went to

the office of CBI where he met S.P., CBI (ACB), and handed over his

complaint. Inspector Lohmor was entrusted with the charge of the

case, so as to take the necessary action. As per PW-4, Inspector

Lohmor made enquiries from him about his complaint. Two officials

namely, Sh. Pradeep Kumar and Sh. J.C.Sharma from Food

Corporation of India were summoned and PW-4 was introduced to

both these witnesses. Thereafter, PW-4, produced ten currency

notes of Rs.100/- denominations, each, and the same were treated

with a chemical powder. One bottle of whisky which PW-4 had

already purchased was also produced. As per the deposition of PW-

4, he had been asked to give the bribe only in case of a specific

demand. The two witnesses signed on the label of the said bottle of

whisky and the number of currency notes was noted down on a

piece of paper. Thereafter, a demonstration was given in the CBI

office, wherein it was shown that if anyone touched the currency

notes treated with chemical powder and thereafter dipped his

fingers in another solution (prepared by dissolving another

chemical), the latter solution would turn from colourless to pink.

The solution was thrown away and whereafter PW-4 and other

members of the trap party washed their hands. A handing over

memo Ex.PW-2/A, in respect of pre-trap proceeding was also

prepared. PW-4 further deposed that he along with the trap party

left the office of CBI at about 4:00 p.m. and PW-4 was instructed to

give the bribe money to the appellant only on his specific demand

and not otherwise. Witness Pradeep Kumar (PW-2) was asked to

accompany PW-4 and act as a shadow witness and in case of the

demand and acceptance of bribe money by the appellant, shadow

witness was directed to give the signal to the raiding party by

placing his hand on his head. The shadow witness was further

directed to overhear the conversation between the appellant and

PW-4. The trap party reached Behari colony, Shahdhra at about

5:30 p.m., and the shadow witness (PW-2) along with the

complainant (PW-4) went to the house of the appellant, who was

not found to be present in his house at that point of time. As per

PW-4 he told the family members of the appellant that he was an

acquaintance of the appellant. Thereafter he along with PW-4 again

went to the house of the appellant between 5:45 and 6:00 p.m. and

the appellant was present in his house. As per PW-4, he said

―Nameste‖ to the appellant, who said ―Sharmaji ander aiye aiye,

me thora late ho gaya." The appellant further said ―paise laye ho

kya." Further PW-4 deposed that "Mereay han keheny pay aur

maine kaha bottle bhi laya hun", then the appellant asked ―yeh

bottle kiski hai.‖, to which PW-4 replied ―it is a whisky bottle".

Thereafter the appellant accepted that whisky bottle from PW-4 and

kept the same on the table. The appellant demanded money from

PW-4, who handed over the money to him. The appellant said ―pure

hain" and to which PW-4 replied ―ek hazar pure hai". Appellant

accepted the tainted GC notes in his left hand and kept the same

under the right side inner pocket of his bandgala coat. Thereafter

shadow witness told PW-4 ―Sharmaji abhi aata hun kafi der ho gai

hai" and thereafter shadow witness left the house of the appellant.

Then PW-4 told the shadow witness ―aap chalo main aa raha hun".

Thereafter within a few moments, officials of CBI entered the house

of the appellant, introduced themselves to the appellant and

apprehended him. The CBI officials enquired from the appellant

that he had taken bribe money from PW-4 and to which the

appellant replied ―maine koi paise nahe liye". PW-4 further

deposed that he informed the CBI officials that the appellant had

demanded and accepted bribe from him and had also taken a bottle

of whisky. Inspector Lohmor directed the shadow witness to recover

bribe money from the coat pocket of the appellant and the trap

party was asked to search the appellant. As per PW-4, the tainted

GC notes were recovered by J.C. Sharma from the coat pocket of

the appellant and the numbers of G.C. notes when compared with

the numbers noted down in the handing over memo, were found to

tally. Thereafter the hand wash of both the hands as well as the

pocket wash of the coat of the appellant was taken. The appellant

was asked to dip his hand in a solution and which turned into pink

colour. The hand wash was transferred into a glass bottle which

was sealed with the seal of the CBI and a label was put on that

bottle which was signed by the witnesses. Thereafter another glass

bottle was called for and pocket wash of the inner side of the coat

which the appellant was wearing, was taken and on dipping, yet

again the colour changed from colorless to pink. Similar procedure

was repeated and the bottle was sealed with the seal of CBI. The

bottle of whisky was also recovered and the brand of the said

whisky bottle was found to tally with that noted down in the

handing over memo, Ex.PW-2/A. Signatures on the bottle of whisky

were also compared. A recovery memo, Ex.PW-2/B with respect to

the post-trap proceeding was prepared at the spot and PW-4

identified his signatures on point B of this memo. PW-4 also

identified the recovered G.C. notes as Ex.P-3 to P-12 and the bottle

of whisky as Ex.P-16.

22. Extensive cross-examination of PW-4 was undertaken by counsel for

the appellant, however, nothing emerged from the same which can

force me to derive an inference that PW-4 was deposing out of any

ill-will or enmity. PW-4 was firm in his stand that the appellant had

demanded and accepted bribe from him, in terms of money and a

bottle of whisky. In the cross-examination PW-4 further deposed

that it was wrong to suggest that appellant did not accept the bribe

from PW-4 or that he had implicated the appellant in a false case.

PW-4 further denied that suggestion that the tainted money and

bottle of whisky was planted on the appellant. In my considered

opinion PW-4 has deposed against the appellant on all fronts and

there are no material improvements and/or contradictions in his

statement which go to the root of the matter and compel me to

disregard his evidence. The evidence of PW-4 is reliable and

trustworthy.

23. Learned counsel for the appellant has further contended before me

that PW-2, the shadow witness has not supported the case of the

prosecution and which certainly sounds a death knell to the case of

the prosecution. I have carefully gone through the evidence of PW-

2, shadow witness. PW-2 in his statement on oath before the court

deposed that he along with the complainant (PW-4) had indeed

entered the house of the appellant while other members of the

raiding party remained outside. The complainant and the appellant

sat on the sofa while he remained seated on the bed which was

lying nearby. Although PW-2 has deposed that because of the noise

of the television he could not hear the conversation between the

appellant and the complainant, however, PW-2 stated that some

conversation did actually take place between the two of them and

thereafter the complainant took out the tainted money from the

pocket of his shirt and gave it to the appellant. Further PW-2 denied

the suggestion in his cross-examination that no transaction took

place in his presence between the appellant and the complainant.

PW-2 also denied the suggestion that the appellant had not

accepted the tainted money and the bottle of whisky. It is settled

position of law that merely because a witness has been declared to

be hostile, the same does not imply that the entire evidence of such

witness be held as otiose. If after careful scrutiny of such evidence,

the Court finds a portion thereof to be reliable, then the Court may

place reliance on it. In the case of Gurpreet Singh Vs. State of

Haryana reported at (2002) 8 SCC 18, the Apex Court observed

as under:

―19. Incidentally, it is now well settled that in the event of a portion of evidence not being consistent with the statements given under Section 161 and the witness stands declared hostile, that does not, however, mean and imply total rejection of the evidence. The portion which stands in favour of the prosecution or the accused may be accepted but the same shall be subjected to close scrutiny.‖

24. Thus in view of the settled position of law, I find that the categoric

deposition by PW-2 that the appellant accepted the said tainted

money in his left hand and kept it in the right breast pocket of his

coat and that the bottle of whisky was also accepted by the

appellant, there is no merit in the contention of counsel for the

appellant that PW-2 is an unreliable witness altogether. The learned

Special Judge has also observed that the presence of PW-2 in the

house of the appellant on the day of the incident and especially in

the particular room, stands confirmed from the fact that a question

was put to PW-2 in his cross-examination that as ‗he had got busy

in watching TV, he did not see the transaction of passing of money

from the complainant to the appellant', which suggestion was

denied by PW-2.

25. Further, the fact that PW-2 went on record to say that he was not

sure as to whether the person present in the court was appellant,

Anil Kumar or not, does not militate against the established identity

of appellant, Anil Kumar inasmuch as, complainant (PW-4);

independent witness (PW-5); and the trap laying officer (PW-6) have

clearly identified the person present in court as appellant, Anil

Kumar. In my opinion, there is no dispute as regards the identity of

the appellant.

26. It has further been contended by counsel for the appellant that the

prosecution had failed to examine independent witnesses, and in

the absence of these witnesses, the case of the prosecution cannot

stand. It would be appropriate herein to recall the decision of the

Apex Court in the case of Sahib Singh Vs. State of Punjab,

reported at 1996 (11) SCC 685, wherein it was held that it is not

always possible to associate public witnesses and this alone should

not be a ground for acquitting the person. In another case titled as

Iswar Singh Vs. State, reported at 1985 Crl.C.J. 1625 it was

observed as under:

―It is common experience that people are greatly reluctant to co-operate with the police in such matters for a variety of reasons and there is as such absolutely no reason to disbelieve the I.O. that public did not respond to join the investigation.‖

27. Notwithstanding these judgments, it is of relevance to note that in

the present case however, the prosecution had indeed examined

PW-5 as an independent witness. Further, it is not the

quantity/number of witnesses, but the quality of evidence led by

the witnesses, that matters before a Court. There is no condition

that the prosecution or defence has to examine a number of

witnesses so as to substantiate their case. If the court finds the

evidence of even a single witness as reliable, convincing and

trustworthy then conviction may be based on the sole testimony of

such witness also. Coming back to the facts of this case, I find that

PW-5 has whole-heartedly supported the case of the prosecution.

On a careful analysis of the deposition of PW-5, it is seen that in the

examination-in-chief, PW-5 deposed that the complainant (PW-4)

and the shadow witness (PW-2) went to the residence of the

appellant while he along with the trap party sat in the vehicle

outside. After about 15 - 20 minutes, complainant and shadow

witness came out of the house of the appellant and shadow witness

informed that the appellant was not in his house. After 10 minutes,

the complainant and shadow witness again went to the house of the

appellant and the raiding party took position outside the house of

the appellant. After 10 minutes, shadow witness came out of the

house of the appellant and gave the pre-appointed signal.

Immediately thereafter, the entire raiding party rushed to the house

of the appellant. In the room, they found one bottle of liquor lying

on the table. The appellant was confronted that he had accepted

bribe from the complainant, however, the same was denied by the

appellant. As per PW-5, thereafter shadow witness informed that

appellant had accepted the bribe money and kept the same in his

right side pocket of the coat, which the appellant was wearing at

that point of time. Thereafter appellant was apprehended by his

arms and the tainted G.C. notes were taken out from the pocket of

the coat of the appellant. The numbers of the tainted G.C. notes

were compared and were found to tally with the numbers noted

down in the handing over memo. PW-5 has also corroborated the

version of complainant, PW-2 that when the appellant was made to

dip his fingers as well as the inner lining of the pocket of his coat in

a solution, the same turned from colourless to pink. Thereafter the

respective washes were sealed with the seal of the CBI. As per PW-

5, a rough site plan, Ex.PW-5/8 was prepared and PW-5 identified

his signatures thereon at point ‗A'. Recovery memo, Ex. PW-2/B was

also prepared and the same bears his signatures at point ‗D' on all

the three pages. In the cross-examination by learned counsel for

the appellant PW-5 denied the suggestion that the money was

planted on the appellant. PW-5 also denied the suggestion that no

incriminating material i.e. the currency notes of Rs.1,000/- and a

bottle of whisky was found from the possession of the appellant.

PW-5 further denied the suggestion that the documents had been

prepared in the office of the CBI. PW-5 identified the case property

and stated that Ex.P-1 was the left hand wash and Ex.P-2 was the

right side inner coat pocket wash. He further identified Ex.P-3 to P-

12 as the ten currency notes which were accepted by the appellant

and Ex.P-13 as the coat which the appellant was wearing.

28. The case of the prosecution further finds support from the evidence

of PW-3 (Sh. NK Prasad, Retired SSO, chemical examiner) who

examined the samples sent to the office of the Central Forensic

Science Laboratory. PW-3 has deposed that seals of the bottles sent

to him for analysis were intact and contents of the bottle were

separately analyzed under his direct supervision. As per PW-3, the

samples were found to be positive with regard to the presence of

sodium carbonate and phenolphthalein. PW-3 also denied the

suggestion put to him by counsel for the appellant that samples

were not examined under his supervision or his presence. Although

as per State of U.P. Vs. Zakaullah reported at (1988) 1 SCC

557, there is no statutory requirement to send the washes for

chemical examination, but the same is for the satisfaction of the

officials that the suspected public servant would have really

handled the bribe money. The fact that in this case, the washes

were actually sent for examination, which have tested positive,

undoubtedly make out a case against the appellant.

29. Further I find that there the three persons examined in defence by

the appellant, say nothing which may advance the case of the

appellant. DW-1 while stating that PW-4 used to threaten him of

getting suspended, if his telephone was not restored, has admitted

at the same time that he knew nothing about the demand or

acceptance of bribe by the appellant. DW-2 has contrarily,

supported the complainant and deposed that the behaviour of

complainant with him was reasonable. He has stated nothing with

regard to this case. Similarly, nothing emerges from the evidence of

DW-3 which may suggest the cause of the appellant.

30. The case of the prosecution further finds support from the evidence

of PW-6, Inspector Lohmor who was the trap laying officer. PW-6

has deposed in his examination-in-chief that on the basis of a

written complaint by PW-4, a trap was decided to be laid against

the appellant. As per PW-6, at about 6:30 p.m., shadow witness

gave the pre appointed signal by scratching his head with both his

hands. Accordingly, he along with PW-5, and other members of the

trap party rushed inside the residence of the appellant. PW-6

disclosed his identity to the appellant and challenged that he had

demanded and accepted bribe of Rs.1,000/- and a bottle of liquor.

PW-6 has also affirmed that 10 GC notes of Rs. 100/- each, were got

recovered and they were found to tally with the numbers already

noted down in the handing over memo. This witness has also

affirmed that a sodium carbonate solution was prepared which

turned from colorless to pink after the appellant dipped his left

hand fingers in the solution and also when the inner lining of the

right side pocket of the coat was dipped in the solution. The two

washes were respectively transferred to clean glass bottles, sealed

with the seal of CBI and labeled. The liquor bottle was also

recovered from the table kept in the room and both the

independent witnesses identified their signatures on its label. Thus

the evidence of PW-6 also lends credence to the case of the

prosecution that the appellant had demanded and accepted illegal

gratification from the complainant.

31. In my considered opinion, there is no room for doubt that the

appellant had demanded and accepted the bribe of Rs.1,000/- and a

bottle of whisky. The identity of the appellant stands established by

the unwavering testimony of PW-4, complainant; PW-5,

independent witness as well as PW-6, the trap laying officer. Further

PW-4, the complainant and PW-5, an independent witness, have

unerringly deposed against the appellant, as the person who

demanded and accepted the bribe. PW-5 is an independent witness

and there is nothing to suggest that he has deposed falsely or that

his version is to be dis-believed. PW-2, the recovery witness, has

also affirmed the acceptance of tainted money and bottle of liquor

by the appellant. PW-3, chemical examiner has also affirmed that

the samples sent to him tested positive for sodium carbonate and

phenolphthalein. PW-6, the trap laying officer, has also affirmed

that the money and bottle of liquor that had been marked to be

given to the appellant in case of any demand made, was indeed

recovered from the appellant.

32. In view of above, I find no reasons to interfere in the impugned

judgment and order on sentence passed against the appellant, Anil

Kumar by the learned Special Judge, Tis Hazari, Delhi in R.C.

No.3(A)/96-DLI under section 7 and 13(1) (d) read with section

13(2) of the Prevention of Corruption Act, 1988.

33. Appeal stands dismissed. Bail Bond stands cancelled and surety is

discharged. The appellant be taken into custody forthwith.

G.S.SISTANI, J.

November 30, 2009 ssn