Delhi High Court
Dashrath Singh Chauhan vs Cbi on 20 July, 2009
Author: G. S. Sistani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.Appeal No.447/2001.
Judgment delivered on 20th July, 2009.
# Sh. Dashrath Singh Chauhan .... Petitioner
Through : Mr. S. Khan and Mr. Shishir Mathur,
Advocates.
Versus
C.B.I. .... Respondent
Through : Mr. Ajay Pal, 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. The present appeal is directed against the judgment and order
on conviction dated 31.05.2001 passed in C.C. No. 53/95 and
R.C.No. 25(A)/ 95-DLI/ CBI/ ACB/ New Delhi, convicting the
appellant to Rigorous Imprisonment (hereinafter referred to as,
―R.I.‖) for two years and a fine of Rs.40,000/- under Sections 7,
13(2) read with Section 13(1) (d) of the Prevention of Corruption
Act, 1988. In default of the payment of fine, the appellant was to
undergo a further simple imprisonment for a period of six
months.
2. The facts of this case briefly stated are that as per the
complainant/PW-1, in January, 1995, he was running the business
of manufacturing Hosiery items under the name and style of M/s
Garg Hosiery Works at premises No.A-309, Shastri Nagar, Delhi.
In January, 1995, he applied for an electricity connection for the
aforesaid factory in the DESU Office at Nangia Park. Inspector
D.S. Chauhan (appellant herein), from DESU, visited the factory
of Arun Kumar, PW-1, for inspection in February, 1995. The
appellant asked the complainant/PW-1 to visit his office after ten
days to find out the progress of his application. Ten days later,
the complainant enquired from the appellant about the
electricity connection. The appellant is stated to have demanded
a bribe of Rs. 5,000/- which was negotiated by the complainant
and it was agreed that Rs. 4,000/- would be paid. The appellant
went to the office of the Central Bureau of Investigation (CBI) and
registered his complaint regarding the demand of a bribe.
Thereafter a trap was laid and as per schedule the complainant
went to the office of the appellant. Inside the office premises, the
appellant directed the complainant to deposit the money with
one Rajinder. As soon as Rajinder accepted the money, a pre-
arranged signal was sent and Rajinder was caught on the spot.
However, the appellant managed to slip away who was then
arrested on 24.04.1995. A case was registered and the accused
persons were tried for the offence under section 120B IPC read
with Sections 7, 13(2) read with Section 13(1) (d) of the
Prevention of Corruption Act, 1988. Post trial, accused Rajinder
was acquitted; however D.S. Chauhan (appellant herein) was
found guilty of having demanded and accepted illegal
gratification.
3. Learned counsel for the appellant submits that the judgment and
order of conviction is based on surmises and conjectures. It is
submitted that there are material contradictions in the
statements recorded of the complainant as well as other
witnesses. Learned counsel submits that there is no evidence on
record to show that the appellant was present at the office when
the alleged incident took place and even otherwise, as per the
case of the prosecution there was neither any demand made by
the appellant nor any money was received by the appellant.
Learned counsel for the appellant contends that the presence of
the appellant is disputed and in fact PW-3 has also supported the
appellant on this issue, besides the fact that DW-1 has also
categorically stated that the appellant was not present at the
spot. Counsel also contends that the learned Special Judge has
mis-directed himself and no cogent reason has been brought on
record as to why the evidence of DW-1 has not been relied upon.
4. It is contended that the learned Special Judge has passed the
order of conviction only relying upon the sole testimony of PW-2
which alone cannot be the basis of conviction somuch so, that
the learned Special Judge has not placed reliance on the
evidence of the complainant as well as on the evidence of the
I.O. It is further contended that in fact the Special Judge has
categorically stated that no reliance can be placed on the
evidence of the I.O. and it has been observed that he is a person
of doubtful integrity.
5. Learned counsel for the appellant has further relied upon the
Attendance Register, which is Exhibit PW-3/A to show that the
appellant was on leave on the fateful day and thus the entire
story of the prosecution is false. Learned counsel has drawn my
attention to the statement of the co-accused Rajinder Kumar
recorded under Section 313 of the Cr.P.C. wherein he has
supported the case of the appellant to the extent that the
appellant was not present in the office on the date when the raid
was conducted. It has been strongly urged before this Court that
even if it is assumed that the appellant was present in the office,
there is no evidence on record that any of the witnesses saw the
appellant leaving the office premises when, the width of the
corridor was not more than 3-4 feet and no one could have
escaped from the corridor without the knowledge of the raiding
party who had admittedly taken position in the vicinity.
6. Learned counsel for the appellant submits that in fact in the
judgement itself, the Special Court has observed that the
statement of the complainant is false in totality. It is submitted
that the present appeal is liable to succeed.
7. Per contra, learned counsel for the CBI has strenuously urged
before this Court that the prosecution has been able to prove its
case beyond any shadow of doubt. Learned Counsel submits that
merely because the case of the prosecution would not be proved
against the co-accused, no benefit can be derived by the
appellant herein who was, in fact, present in the office and at his
instructions the money was handed over to the co-accused,
Rajinder Kumar. It is submitted that the appellant had moved
away from the scene of the crime on realizing that a raid was
being conducted. Learned counsel further submits that the
Attendance Register is an unreliable document in asmuchas, the
employees were not marking their attendance daily in the said
register. Learned counsel also submits that contradictory stands
have been taken by the appellant. In the statement recorded
under Section 313 of the Cr.P.C., the appellant has stated that he
was on leave from 28.03.1995 and onwards, however, his leave
of application shows that he had requested for leave from
29.03.1995 onwards. Counsel next submits that there is no
reason as to why the evidence of PW-2 cannot alone be the sole
ground for conviction against the appellant when PW-2 is an
independent witness and has clearly identified the appellant.
8. The prosecution in this case had examined seven witnesses,
where as one witness was examined by the defence. Statement
of the appellant was also recorded under section 313 of Cr.P.C. It
would be worthwhile to analyse the evidence of relevant
witnesses.
9. PW-1, Arun Kumar (complainant), deposed that in the year 1995
he was running the business of manufacturing Hosiery items
under the name and style of ‗M/s Garg Hosiery Works' at
premises A-309, Shastri Nagar, Delhi. In January, 1995, he had
applied for an electricity connection for the aforesaid factory in
the DESU office at Nangia Park. Inspector D.S. Chauhan
(appellant) from D.E.S.U., (PW-1 correctly identified the appellant
present in the Court), visited his factory premises for inspection
in February, 1995. No one else from D.E.S.U. had visited the
factory premises on the said visit. As per PW-1, the appellant
went away telling him to visit his office after ten days to find out
about the progress of his application. This witness further
deposed that ten days later, he had visited the office of D.S.
Chauhan, appellant, at Shehzada Bagh, Daya Basti and enquired
from the appellant about his electricity connection. On this the
appellant, D.S. Chauhan said ―BEF KOOF PANE KI BAATEN NAHIN
KAREEN? JO SAHI BAAT HAI ISE KAR‖. Thereafter, the appellant
said ―AB BHI NAHIN SAMJHA MAIRA ISHARA‖. On this the
complainant said ―BATA DO MUJH KO KIYA BAAT HAI. The
appellant, D.S. Chauhan, said that he will take Rs.5,000/- for
installing power connection at the factory. PW-1 stated that he
had a small hosiery business and was not in a position to pay this
amount and said that he could pay a lesser amount as per his
capacity. But appellant, D.S. Chauhan, insisted for Rs.5,000/- and
said that his remark on his application cannot be reversed by
even the General Manager, DESU. PW-1 came back to his
residence and again visited the office of the appellant, D.S.
Chauhan five or ten days after. At this stage, PW-1 again said
that before his said visit to the office of D.S. Chauhan, one
Rajinder had visited his residence along with D.S. Chauhan
three/four days after the date on which D.S. Chauhan had
demanded a bribe of Rs.5,000/-. PW-1 further deposed that the
accused persons were also accompanied by some technicians.
Appellant, D.S. Chauhan, asked him ―KIYA HOOWA‖. PW-1 said
that he could not arrange for the money. On this, appellant, D.S.
Chauhan pointed towards the Electricity meter already installed
at his house and said ―YE JO TERI DHARAM SHALA LAGI HUI HAI?
YEH SAB METER WAGERA UTAAR DOON GAAN AGAR PAISE
NAHIM DIYE‖. After that the accused persons left and while going
appellant, D.S. Chauhan, told him to visit his office after 4/5
days. As per PW-1, on 28.3.1995 he visited the office of
appellant, D.S. Chauhan and there it was agreed that he should
pay Rs.4,000/- as bribe to the appellant for installing power
connection at his factory. D.S. Chauhan himself reduced the
demand amount to Rs.4,000/-, when PW-1 said that he was not in
a position to pay Rs.5,000/-. PW-1 left the office of the appellant
telling him that he would pay the amount to him in his office on
29.3.1995 at 10.00 a.m. Thereafter, PW-1 went and met his
friend, Mahabir, and narrated the matter to him. Mahabir
suggested to take PW-1 to the CBI Office. Thereafter PW-1 visited
the CBI Office on 28.3.1995 at 1.00 p.m. There, PW-1 met one
S.P., Shri Prabhakar and narrated the entire facts to him.
Thereafter, S.P., Shri Prabhakar, made PW-1 write down his
complaint. After recording of his complaint, Mr. Prabhakar sent
PW-1 to Sh. Kaul, Inspector, CBI. PW-1 deposed that his
complaint is Ex.PW-1/A and is in his handwriting and bears his
signatures Ex.PW-1/A.
10. PW-1 further deposed that on 29.3.1995 at about 10.15 a.m. Shri
Kaul, Inspector came to his residence along with two public
witnesses and 3/4 CBI officers. They did not disclose the name of
independent witnesses to PW-1 at that time. The two public
witnesses enquired from him about the contents of his complaint
and he verified about the correctness of allegations. Thereafter,
he produced Rs.4,000/- at the instance of Inspector Kaul.
Inspector who noted down the numbers of the said currency
notes on paper. Thereafter, one chemical powder was applied on
the said currency notes. He then said that money produced by
him consisted of two hundred rupee notes and seventy six fifty
rupee notes. Remaining chemical powder which was applied to
the currency notes was thrown away in the latrine of his house.
Thereafter, Inspector Kaul, told him to keep the tainted notes in
his pocket and also directed him to pay that money to the
appellant, Chauhan, only in the event of demand by him. He
kept the said money in the front pocket of his pant. One of those
public witnesses was also directed to accompany him and watch
the proceedings. He was also directed to give the signal by
facing his hand on the head in the event of acceptance of bribe
by the appellant.
11. PW-1 also deposed that thereafter, they all left his residence for
the office of appellant, D.S. Chauhan, Daya Basti, Shahazada
Bagh, in a car. He and one public witness, who was directed to
accompany him, went inside the office of the appellant, D.S.
Chauhan. 3/4 public persons were there in the office of the
appellant, Chauhan, and when they left, he told the appellant,
D.S. Chauhan, that he has brought Rs.4,000/- as per demand.
Appellant, D.S. Chauhan, told him to wait for a minute.
Thereafter, he took out aforesaid Rs.4,000/- and extended the
same towards the appellant, D.S. Chauhan, but he did not accept
the money in his hand and told him to give the same to
appellant, Rajinder Kumar. At this stage, learned P.P. requested
to cross-examine PW-1.
12. During cross-examination by learned Public Prosecutor, PW-1
deposed that his statement was recorded under Section 161 of
the Cr.P.C. and he had read the same. Aforesaid statement was
correctly recorded as per his narration and he was satisfied after
reading it. PW-1 deposed that it was correct to say that as soon
as the aforesaid 3/4 persons present in the office of appellant,
D.S. Chauhan, left, he said to him ―HAAN KAHO‖. It was correct
to say that when he said ―HAAN SAHIB MAIN APNE WALE KAAM
KE BAARE MAIN AIYA THA‖, on this appellant, D.S. Chauhan said
―PAISE LAE HO‖. It was also correct that ―he replied in
affirmative by saying ―JI‖. PW-1, however, denied the suggestion
that he did not tell the appellant, D.S. Chauhan, in so many
words that he had brought Rs.4,000/- as per his demand and that
he had stated in his statement under Section 161 of the Cr.P.C.
that he told appellant, D.S. Chauhan, in his office that he had
brought Rs.4,000/- as per his demand, he was confronted with
his statement under Section 161 of the Cr.P.C. marked ‗X' where
it was not so recorded.
13. PW-1, in his further examination by learned Prosecutor, deposed
that while leaving his residence, CBI officials had a bag
containing sealing material, a glass tumbler, empty bottles,
sodium carbonate, etc. He accepted the suggestion that on
reaching the office of appellant, D.S. Chauhan, he told him ―HAN
SAHIB MAIN APNE KAAM KE BAARE MAIN AIYA THA‖. He also
accepted the suggestion that on this appellant, D.S. Chauhan
asked ―PAISE LAYE HO‖ and to which he replied in the
affirmative. The appellant, D.S. Chauhan, told him to give the
money to Rajinder, who was also present in the said room. PW-1
also accepted the suggestion that he had wished Rajinder, by
saying, ―ABHI CHAUHAN SAHIB SE BAAT HUI HE‖ and to which
Rajinder said that ―HAAN HAAN LAO KITNE HAIN‖. On this he
took out the tainted notes from his pocket and handed over
those Rs.4,000/- to Rajinder. Rajinder took the money in his right
hand and transferred it to his left hand and thereafter kept the
tainted money in left pocket of his pant. As soon as the money
was accepted by Rajinder, the public witness went outside and
gave signal to the trap party. PW-1 stated that it was correct to
suggest that after this members of the raiding party came inside
the room and Mr. Kaul showed his identity card. It is also correct
that he enquired from Rajinder whether he has accepted the
bribe of Rs.4,000/- from PW-1. He also accepted the suggestion
that on this Rajinder told Shri Kaul that he has taken the money
of bribe at the instance of the appellant, Chauhan, who is his
officer. He also deposed that meanwhile, appellant, Chauhan,
escaped from the room and further that Rajinder was
apprehended by CBI officers from both his wrists. PW-1 accepted
the suggestion that other officials of DESU were requested to join
the proceedings of the raid, but no one agreed and left the office.
The public witness who had accompanied him recovered the
tainted notes from the pocket of Rajinder's pant, in the presence
of other members of the raiding party. Currency notes were
counted by both the public witnesses and they also compared
their numbers with the numbers already noted down in the
annexure to the handing over memo. PW-1 accepted the
suggestion that sodium carbonate solution was in a glass of
water and thereafter Rajinder was made to dip his right hand
fingers in the said solution and the aforesaid solution turned from
colourless to pink. He also accepted the suggestion that solution
of right hand was transferred into an empty bottle and its mouth
was covered with a cloth wrapper and thereafter the bottle was
sealed with the seal of CBI. A rough site plan was prepared by
the IO at the spot. He further deposed that bottle of the right
hand wash is Ex.P-1, bottle containing left hand wash is Ex.P-2
and the bottle containing pocket wash is Ex.P-3. Hundred rupee
currency notes are Ex.P4 and Ex.P-5. Fifty rupee currency notes
are Ex.P-6 to Ex.P-81. He also identified the currency notes as
the same currency notes which were given by him as bribe and
accepted by Rajinder. He accepted that lining of the pocket of
the pant of Rajinder was signed by the independent witnesses
and Ex.P-82 is the same pant which Rajinder was wearing at the
relevant time. He further deposed that the CBI officials searched
for appellant, D.S. Chauhan, in the office, but in vain. Thereafter,
they went to the residence of the appellant, D.S. Chauhan, at
Rohini. Appellant, D.S. Chauhan was not present at his
residence but his neighbour told that he had left shortly in his
Maruti Car. He accepted that the appellant, D.S. Chauhan, had
warned him not to depose against him and because of that fear
he had incorrectly stated in his examination-in-chief that in the
office of Mr. Chauhan he told him that he had brought Rs.4,000/-
as per demand and thereafter he took out aforesaid four
thousand and extended the same towards appellant, D.S.
Chauhan, who told him to hand over the same to Rajinder
Kumar. He accepted the suggestion that because of fear, he did
not mention about the demand made by D.S. Chauhan.
14. During cross-examination by counsel for the appellant, D.S.
Chauhan, PW-1 deposed that he met appellant D.S.Chauhan for
the first time in January, 1995 but he did not remember the date.
He had never met him before January, 1995. D.S.Chauhan visited
his factory 3/4 times. His statement under Section 161 of the
Cr.P.C. was recorded on his narration. It was in February, 1995,
or the last week of January when appellant, D.S. Chauhan,
pointed towards the electricity meter installed at his house and
said ―YEH JO TERI DHARAMSHALA LAGI HUI HAI, YEH SAB METER
WAGERA UTAAR DOON GAAN AGAR PAISE NAHIN DIYE‖. When on
the day of raid he entered the office of appellant, D.S. Chauhan,
he wished him by saying, ―CHOHAN SAHIB NAMESTE‖. Shadow
witness was along with him. Other members of raiding party
were present in the galary leading to the said office. PW-1 stated
that it was incorrect to suggest that on 29.3.95 he had no
conversation with appellant, Chauhan, because he was not
present in the office on the said day.
15. PW-1, Shri Arun Kumar, was further cross-examined by counsel
for Rajinder and he deposed that when he entered the office
room of accused persons, 3/4 persons were already present
there. PW-1 stated that he did not remember whether on the
first occasion right hand or left hand wash of Rajinder was taken.
They remained at the spot of the raid for about 2 or 2 ½ hours.
PW-1 denied that Rajinder did not accept the money from him.
16. PW-2 Mohinder Lal, UDC, CPWD (Vigilance Unit), deposed that on
29.3.1995 during morning time, CBI officials came to his office
and at their request Sh. Sukhdev Singh, Executive Engineer
directed him and Shri K. Ganesh to go to the CBI office for the
purposes of the raid. From their office, they accompanied the CBI
team to the residence of the complainant at Shastri Nagar, Delhi.
They satisfied themselves about the contents of the complaint.
Thereafter the complainant produced Rs.4,000/- comprising of
some hundred rupee currency notes and some fifty rupee
currency notes. Numbers of those currency notes produced by
the complainant, were recorded on a memo. One chemical
powder was applied on them. They were told that if any-one
after handling those notes would dip his fingers in another
chemical solution, aforesaid solution would turn pink. The
tainted notes were handed over to the complainant which he
kept in the pocket of his pant. Complainant was directed that he
should not touch the tainted notes again and give the same to
the accused only in the event of specific demand and not
otherwise. He was directed to accompany the complainant for
watching the proceedings and hearing the conversation. He was
also directed that in the event of acceptance of bribe, he should
give signal by placing his hand over his hair. All the members of
the raiding party were made to wash their hands. One IO bag
was prepared which contained a few glass tumblers, few empty
bottles, handing over memo, sealing material and the chemical
powder of which solution was made. The remaining portion of
chemical powder which was applied to the tainted notes was
destroyed. Handing over memo was prepared which is
Ex.PW1/B, which was signed by the complainant on both the
sheets at respective points ‗B', Ex.PW1/B1 in his presence. He
along with members of raiding party left the residence of the
complainant at about 11.15 a.m. and at about 11.30 a.m.
reached the DESU office at Shehzada Baagh. He along with the
complainant went to the office of the accused, Chauhan, and
other members of raiding party took positions. He identified
accused, Chauhan, who was present in the Court. When he
reached inside the office, Chauhan, was standing outside his
office room in the corridor. Complainant greeted accused
Chauhan by saying ―NAMASTE'. Chauhan, returned the greeting
and told the complainant to wait. At that time, Chauhan was
talking to two or three other persons. 2/3 minutes later when
those 2/3 persons left, Chauhan, said, ―PAISE LAAYE HO‖.
Complainant replied ―HAAN LAYA HOON‖. Thereafter,
complainant (sic Chauhan) said ―AAP KAA KAAM JO JAYE GAA‖.
―PAISE ANDER US AADMI KO DE DO‖. It was also recorded that
Chauhan also took the name of the said person while pointing
towards him. Aforesaid person was present in Court and this
witness correctly identified the accused Rajinder Kumar.
Thereafter, the complainant went inside the room, took out the
tainted money, and told Rajinder that Mr. Chauhan has directed
him to give the money to him. On this Rajinder, accused,
accepted the money from the complainant. As soon as, the
accused, Rajinder, accepted the tainted Rs.4,000/-, he went
outside the room and gave the pre-arranged signal by placing his
hand on his head. On this, other members of the raiding party
came inside the office and apprehended the accused, Rajinder.
Recovery memo, EX.PW-1/D was prepared at the spot. A rough
site plan was prepared at the spot which is Ex.PW-2/A. CBI
officials searched for the appellant, Chauhan, in the office, but in
vain. Thereafter, they all went to the residence of Chauhan. He
did not remember his address but the appellant was not present
at his residence. PW-2, Mohinder Lal, UDC further at first
deposed that the chemical powder which was supposed to be
used during post-raid proceedings was kept in the IO bag, but
then said that no chemical powder was taken along in the IO
bag.
17. In the cross-examination by learned counsel for the appellant,
PW-2, stated that he did not remember whether the members of
raiding party took positions outside the main gate of the DESU
office or within the four walls of DESU office, as he had gone
inside the office along with the complainant. He also did not
know at which specific place which member of raiding party took
position. He did not remember if anyone asked the complainant,
―AAJ TUM KAISE AAYE HO‖. He denied that the corridor shown in
the site plan Ex.PW-2/A is so narrow that more than two persons
cannot stand side by side in the same. He also denied that he did
not see accused D.S. Chauhan in the office of DESU. He also
denied that no conversation, as narrated by him in examination-
in-chief took place between the complainant and the accused.
He further denied that Chauhan, did not tell the complainant to
pay the bribe amount to Rajinder. He denied that he had
deposed falsely against, accused, D.S. Chauhan, under the
pressure of CBI.
18. During cross-examination by counsel for accused, Rajinder, PW-2
deposed that no other person was present in the room of
accused, Rajinder Kumar, at the relevant time.
19. PW-2 was re-examined by the learned APP and PW-2 stated that
when he said in the examination-in-chief that no powder was
kept in the IO bag, he was referring to the chemical powder
which was applied to the currency note.
20. PW-3 Shri Raj Kumar Time Keeper, DESU, deposed that in the
year 1995 he was posted as Assistant Time Keper, DESU, Zone
4222, Shehzada Bagh, Delhi. As per procedure officials of DESU
pertaining to the Zone except Assistant Engineer and above were
supposed to mark their daily attendance in the Register
maintained in the office of the Asstt. Engr. It was his duty to
collect the attendance registers at the end of the month on the
basis of the attendance marked in those registers, he used to
prepare the attendance statement of technical staff and
forwarded it to the pay office. He was on leave during the period
w.e.f. 28.3.95 till 31.3.95 . On 29.5.1995 one Mistry of DESU
came at his residence and told him that he was required by the
Executive Engineer at the office. On this, he reached his office at
about 1.30 p.m. He did not hand over attendance register
pertaining to March, 1995 to Assistant Engineer on 29.3.1995.
He had seen attendance register Ex.PW3/A. He further deposed
that he had seen the register pertaining to March, 1995 and the
attendance of employees was not marked in the register after
27th of March, 1995. He further deposed that this register used
to remain in the custody of Assistant Engineer and not in his
custody. Since he was on leave w.e.f. 28.3.1995, therefore, he
was not aware whether or not accused, Dashrath Singh,
submitted any leave application for 29.3.1995.
21. PW-4, R.K. Narain s/o late Sh. J.N. Sharma, deposed that on
8.9.1995, he was posted as General Manager (E), DESU. On
8.9.1995, he granted sanction for prosecution of Dashrath Singh
Chauhan, Inspector, DESU, and Rajidner Kumar, Line-mate,
DESU.
22. PW-5, Shri K.S. Chabbra, Sr. Scientific Officer, Grade-I, CFSL,
deposed that on 19.3.1995, three sealed bottles were received in
the laboratory. The samples gave positive tests for phenolphthlin
and sodium carbonate. He identified his signatures on Ex.PW4/A
at portion- A.
23. DW-1, Shri Babu Lal, deposed that in March, 1995, he was posted
as Electric Fitter, DESU. He knew appellant, Dashrath Singh
Chauhan and Rajidner Kumar, who were present in the Court.
Both of them were posted in Shahada Bagh Office of DESU in
March, 1995. Around the last week of March, 1995, probably on
29th March, 1995, he was present at the DESU Office, Shahjada
Bagh when at about 11.00 a.m. some persons came and
apprehended Rajinder and asked him to take them to the house
of the appellant.
24. During cross-examination by the learned Public Prosecutor for
the CBI, DW-1 denied that he had any friendly relations with him.
He further denied that on 29.3.1995 at around 11:30 to 11:55
a.m., appellant D.S. Chauhan, was present in his office. He
voluntarily stated that he did not see him in the office. He also
denied the suggestion that he had deposed falsely in order to
favour his colleague, D.S. Chauhan.
25. I have heard learned counsel for the parties and carefully gone
through the record of this case.
26. Learned counsel for the appellant has made the following
submissions before me:
a) the prime witness (PW1) who is also the complainant has
been declared a hostile witness.
b) Statement of IO (PW-6) has not been relied upon by the
trial Court.
c) the appellant was not present in the office on the day of
the raid and there is evidence (attendance register;
deposition of DW 1 and co-accused Rajinder Kumar) to
corroborate the same.
d) assuming that the appellant was present, then also the
prosecution has themselves stated that neither any money
was demanded nor accepted by the appellant.
27. On the contrary, learned APP has made the following
submissions before me:
a) appellant is guilty of demanding and accepting bribe from
PW 1.
b) attendance Register is an unreliable document.
c) PW-2 is an independent witness and has correctly
identified the appellant.
d) merely because the case of the prosecution could not be
proved against the co-accused, no benefit can be derived
by the appellant.
28. Allegations of demanding and having accepted illegal
gratification in terms of money were found to be true by the trial
court, against a D.S.Chauhan, a government official working in
DESU. D.S.Chauhan (appellant herein) was 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.‖
29. Learned counsel for the appellant has urged before me that not
only there are contradictions in the testimony of the main
witness-complainant, PW-1, but also that the said witness had
turned hostile and his entire evidence was ignored by the trial
Court. I deem it appropriate to first analyse the evidence of PW-1
in detail. The complainant/PW-1 has deposed that in January,
1995, he was running the business of manufacturing Hosiery
items under the name and style of M/s Garg Hosiery Works at
premises No.A-309, Shastri Nagar, Delhi. In January, 1995, he
applied for an electricity connection for the aforesaid factory in
the DESU Office at Nangia Park. Inspector D.S. Chauhan
(appellant herein), from DESU, visited the factory of Arun Kumar,
PW-1, for inspection in February, 1995. The appellant asked the
complainant/PW-1 to visit his office after ten days to find out the
progress of his application. Ten days later, the complainant
enquired from the appellant about the electricity connection and
the appellant is stated to have said ―METER AISE NAHI LAGE GA,
METER KE LIYE AAP KO KUCHH DENA PARE GA‖, and to which the
complainant said that he had already deposited requisite dues in
the office of DESU for getting the electricity connection. On this
the appellant said ―BEF KOOFPANE KI BAATEN NAHI KARTEN, JO
SAHI BAAT HAI, USE KAR‖. Thereafter the appellant said ―AB BHI
NAHI SAMJHA MERA ISHARA‖. The complainant said ―BATA DO
MUJH KO KIYA BAAT HAI‖. The appellant then stated that he
would take Rs.5,000/- for installing the power connection at the
factory of the complainant. The complainant told him that since
he was running a small hosiery business, he was not in a position
to pay the amount. The complainant thereafter bargained for a
lesser amount, but the appellant insisted for Rs.5,000/- and
further stated that his remark on the application cannot even be
reversed by the General Manager, DESU. PW-1 again said that
before his said visit to the office of D.S. Chauhan, one Rajinder
had visited his residence along with D.S. Chauhan three/four
days after the date on which D.S. Chauhan had demanded a
bribe of Rs.5,000/-. PW-1 further deposed that the accused
persons were also accompanied by some technicians. Appellant,
D.S. Chauhan, asked him ―KIYA HOOWA‖. PW-1 said that he
could not arrange for the money. On this, appellant, D.S.
Chauhan pointed towards the Electricity meter already installed
at his house and said ―YE JO TERI DHARAM SHALA LAGI HUI HAI?
YEH SAB METER WAGERA UTAAR DOON GAAN AGAR PAISE
NAHIM DIYE‖. After that the accused persons left and while going
appellant, D.S. Chauhan, told him to visit his office after 4/5
days. As per PW-1, on 28.3.1995 he visited the office of
appellant, D.S. Chauhan and there it was agreed that he should
pay Rs.4,000/- as bribe to the appellant for installing power
connection at his factory. Thereafter, PW-1 went and met his
friend, Mahabir, and narrated the matter to him. Mahabir
suggested to take PW-1 to the CBI Office. PW-1 visited the CBI
Office on 28.3.1995 at 1.00 p.m. There, PW-1 met one S.P., Shri
Prabhakar and narrated the entire facts to him. S.P., Shri
Prabhakar made PW-1 to write down his complaint in writing.
PW-1 deposed that his complaint is Ex.PW-1/A and is in his
handwriting and bears also his signatures. As per this
examination-in-chief of PW-1, it emerges that a clear cut illegal
demand of Rs. 5,000/- bargained to Rs. 4,000/- was made by the
appellant.
30. PW-1 has further deposed that on his complaint, a trap was laid
by the CBI and as per schedule complainant went to the office of
the appellant. Inside the office premises, the complainant told
the appellant that he had brought the money as per his demand.
Thereafter he took out the aforesaid Rs. 4,000/- and extended
the same towards the appellant who did not accept the money in
his hand and directed the complainant to deposit the money with
Rajinder. At this stage, learned PP for the State sought liberty to
cross-examine PW-1, complainant. It is the case of the appellant
that since PW-1 turned hostile, his entire evidence cannot be
relied upon. In my considered opinion, although in the
examination-in-chief, PW-1 has deposed that on the day of the
raid, when PW-1 along with the shadow witness (PW-2) went to
the office of the appellant, he himself told the appellant that he
had brought the money as per the demand of the appellant.
However, in the cross-examination by the learned PP on
17.09.1996, PW-1 clarified that he was dared and warned by D.S.
Chauhan (appellant herein) not to depose against him and it was
out of fear that he had not stated that the money was demanded
by the appellant on the day of the raid. PW-1 stated, "It is correct
that accused, D.S. Chauhan had warned me not to depose
against him and because of that fear I had incorrectly stated in
the examination-in-chief that in the office of Mr. Chauhan I told
him that I have brought Rs.4,000/- as per demand and thereafter
I took out aforesaid four thousand and extended the same
towards accused, D.S. Chauhan, who told me to give the same to
accused, Rajinder Kumar. It is correct that because of fear, I did
not mention about the demand made by D.S. Chauhan." Further
in the cross-examination of PW-1 by counsel for the accused
Rajinder, PW-1 stated that he had reported about the threat
extended by D.S.Chauhan to the police as well as to the CBI
Officials.
31. Furthermore, in the cross-examination by the learned PP, PW-1
stated that on reaching the office of appellant, he had told him
―HAN SAHIB MAIN APNE KAAM KE BAARE MAIN AIYA THA‖. On
this, appellant asked ―PAISE LAYE HO‖ and he replied in the
affirmative. Then the appellant told him to give the money to
Rajinder, who was also present in the same room. PW-1 also
accepted the suggestion that he wished Rajinder by saying that
―ABHI CHAUHAN SAHIB SE BAAT HUI HE‖ and that Rajinder said
―HAAN HAAN LAO KITNE HAIN‖. On this PW-1 took out the
tainted notes from his pocket and handed over those Rs.4,000/-
to Rajinder. PW-1 further stated that Rajinder took the money in
his right hand and transferred it to his left hand and thereafter
kept the tainted money in his left hand and thereafter kept the
tainted money in left pocket of his pant. As soon as the money
was accepted by Rajinder, the public witness went outside and
gave the requisite signal to the trap party who then came inside
the room.
32. In the cross-examination by counsel for the appellant, PW-1
deposed that he met appellant, D.S.Chauhan for the first time in
January, 1995 but he did not remember the date. He had never
met him before January, 1995. D.S.Chauhan visited his factory
3/4 times. His statement under Section 161 of the Cr.P.C. was
recorded on his narration. It was in February, 1995, or the last
week of January when the appellant, pointed towards the
electricity meter installed at his house and said ―YEH JO TERI
DHARAMSHAL LAGI HUI HAI, YEH SAB METER WAGERA UTAAR
DOON GAAN AGAR PAISE NAHIN DIYE‖. When on the day of raid
he entered the office of the appellant, and wished him by saying,
―CHOHAN SAHIB NAMESTE‖. Shadow witness was along with
him. PW-1 also deposed that he entered the office of the
appellant and the bribe money was given in the office of the
appellant. PW-1 also denied the suggestion that he was deposing
falsely so as to falsely implicate the appellant, D.S. Chauhan. PW-
1 also denied the suggestion put to him that appellant, D.S.
Chauhan did not demand the bribe from him or that Rs. 4,000/-
were not paid at the instance of the appellant.
33. Thus it is seen that PW-1 has convincingly nailed the appellant
that illegal gratification (bribe) was demanded by the appellant
and that at the instance of the appellant, money was accepted
by Rajinder. PW-1 has clarified that he was threatened by the
appellant not to depose against him and it was only out of fear
that he had resiled from his statement made in the complaint.
PW-1 has also withstood the cross-examination and the minor
contradictions do not go to the root of the matter. Even
otherwise also, merely because a witness has been cross-
examined by the party that had brought it to the witness-box, it
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.‖
34. Further in the case of T. Shankar Prasad Vs. State of A.P.
reported at (2004) 3 SCC 753, it was held as under:
―23. On a close reading of PW1's evidence it appears
that he has not really given a clean chit to the
accused persons. Though a feeble attempt was made
to show that he has not implicated A-2, in fact that is
really not of significance when his evidence is read
along with the evidence of other witnesses. The
evidence clearly shows that A-1 directed the money
to be paid to A-2. The stand of the accused about
nature of receipt of the money is also not consistent.
The stand was taken as if the money was received by
A-2 for the payment of the advance tax. The
documents brought on record go to show that there
was no necessity for paying any advance tax. In fact,
the official records indicate that the tax due was fully
paid. Therefore, the plea that the amount was paid
as advance tax is clearly without substance.
24. The fact that PW 1 did not stick to his statement
made during investigation does not totally obliterate
his evidence. Even in criminal prosecution when a
witness is cross-examined and contradicted with the
leave of court by the party calling him, his evidence
cannot as a matter of law be treated as washed off
record altogether. It is for the judge of fact to
consider in each case whether as a result of such
cross-examination and contradiction, the witness
stands thoroughly discredited or can still be believed
in regard to a part of his testimony. If the judge finds
that in the process the credit of the witness has not
been completely shaken, he may after reading and
considering the evidence of the said witness, accept
in the light of the other evidence on record that part
of his testimony which he found to be creditworthy
and act upon it. As noted above, PW 1 did not totally
resile from his earlier statement. There was only a
half-hearted attempt to partially shield A-2. PW 1 has
categorically stated that he had paid the money to A-
2 as directed by A-1. ..........‖
35. In my considered opinion, the facts of the case in hand are
similar to the facts of T. Shankar Prasad (supra) in asmuchas,
in the case of T. Shankar Prasad (supra), allegations of bribe
were leveled against two persons A1 and A2. While A1 was the
main accused, A2 was stated to have accepted the illegal
gratification at the instance of A1. Further, the main complainant
(PW1) was found trying to shield A2. In the present case also, a
close reading of the evidence of PW-1 would show that although
there were minor contradictions in the evidence of PW-1, they
were with respect to one Rajinder, who was stated to have
accepted the bribe at the instance of the appellant (D.S.
Chauhan). However, PW-1 has categorically deposed against the
appellant and not once did he give a clean chit to the appellant.
He gave sufficient explanation as for the threat extended to him
by the appellant. Further, contrary to the argument of learned
counsel for the appellant, I find that the trial Court has nowhere
observed in the judgment that the version of PW-1 is false in
toto. Rather, the trial Court has observed in para 5 of its
judgment that it is a well established principle of law that when a
witness is called in to a witness box, is cross-examined by that
very party only, the statement of such a witness does not stand
washed out and on careful scrutiny, chaff may be separated from
the grain. The trial Court has further gone on record to say that
the complainant (PW-1) fully establishes that repeated demands
for illegal gratification were made by D.S. Chauhan at his
residence and office.
36. The case of the prosecution has also been whole-heartedly
supported by PW-2, shadow witness. PW-2 is an independent
witness and he has stated that on 29.03.1995, during morning
time he accompanied the CBI team to the residence of the
complainant and where, he and another public witness
questioned the complainant and satisfied themselves about the
contents of the complaint. As per PW-2, the complainant
produced Rs.4,000/- comprising of some Hundred Rupee
currency notes and some Fifty Rupee currency notes. The
number of the said currency notes was duly recorded on a
memo. One chemical powder was applied to the aforesaid
Rs.4,000/- and it was told that anyone who after handling those
notes, would dip his fingers in a particular chemical solution, the
said chemical solution would turn pink. The complainant was
directed not to touch the tainted currency notes and PW-2 was
asked by the CBI to accompany the complainant at the time of
the raid. In the event of acceptance of bribe, PW-2 was directed
to give a signal by placing his hands over his hair. PW-2 has
stated that he alongwith members of the raiding party left the
residence of the complainant at about 11:15 a.m. and at about
11:30 a.m., they all reached the DESU office. He along with the
complainant went to the office of the appellant while other
members of the raiding party took positions outside the office.
PW-2 has further stated that the complainant greeted the
appellant by saying ―namaste‖, who returned the greeting and
asked the complainant to wait. At that point of time, appellant
was talking to 2/3 persons who thereafter left. The appellant then
asked the complainant, ―KAISE AIYO HO‖ and to which the
complainant replied ―MAIRA KAAM KAR DIJIYE‖. Thereafter
appellant enquired ―PAISE LAAYE HO‖ and the complainant
replied ―HAAN LAYA HOON‖. Thereafter, appellant said ―AAP KAA
KAAM JO JAYE GAA, PAISE ANDER US AADMI KO DE DO‖.
Thereafter, the complainant went inside the room, took out the
tainted money, and told Rajinder that the appellant had directed
him to give the money to him. On this Rajinder, accepted the
money from the complainant. As soon as Rajinder, accepted the
tainted Rs.4,000/-, PW-2 went outside the room and gave the
pre-arranged signal by placing his hand on his head and other
members of the raiding party came inside the office and
apprehended Rajinder from both his wrists.
37. This witness (PW-2) has withstood incisive cross-examination and
stated that it would be wrong to suggest that he did not see
appellant, D.S. Chauhan in the office of DESU on the day of the
raid and further wrong to suggest that appellant, Chauhan did
not tell the complainant to pay the bribe amount to Rajinder. He
was unshaken in his stand that the present appellant had
demanded bribe of Rs. 4,000/- and asked the same to be
deposited with Rajinder. PW-2 correctly identified the appellant
who was present in the Court. PW-2 is an independent witness
and the appellant has been unable to show as to, why this Court
should not take the deposition of PW-2 into account, or that PW-2
has been deposing falsely. There is nothing to suggest as to why
testimony of PW-2 is to be disbelieved. Before this incident, the
appellant and PW-2 had not even known each other so as to say
that there was a grudge or any kind of enmity between the two.
Thus PW-2, an independent witness to the entire raid
proceedings, has corroborated the version of the prosecution in
material particulars.
38. PW-2 further in clear terms deposed that Rajinder accepted the
money in his right hand and then transferred it to his left hand
and kept it inside the left hand pant pocket. PW-2 has gone on
record to say that PW Ganesh searched Rajinder and recovered
the tainted money of Rs.4,000/- from the left pocket of his pant.
Thereafter, PW-2, and Ganesh compared the number of
recovered currency notes with the numbers already noted down
in Exhibit PW-1/B1 and the currency notes were found to bear
the same number. In a glass of water some Sodium Carbonate
was dissolved, Rajinder was made to dip his right hand fingers in
the said solution. As soon as Rajinder put his fingers in the said
solution, the entire solution turned from colourless to pink. The
said solution was then transferred into an empty bottle, its
mouth was closed, covered with a cloth wrapper and sealed with
the seal of the CBI. The said cloth wrapper was signed by PW-2
and Ganesh. Thereafter fresh Sodium Carbonate solution was
prepared in a clean glass and Rajinder was made to dip his left
hand fingers in the solution which also immediately turned Pink.
The mouth of the said glass was also covered with a cloth
wrapper and duly sealed with the seal of the CBI. Similarly, the
inner lining of the left hand side pocket of the pant of Rajinder
was dipped in the solution and the same turned pink. This glass
bottle was also sealed with the seal of CBI. PW-2 has identified
that the bottle of right hand wash is Exhibit P/1; left hand wash is
Exhibit P/2; and the inner lining of the left hand side pocket is
Exhibit P/3. PW-2 has further identified the money recovered as
bribe containing Hundred Rupee currency notes as Exhibits P/4
and P/5, and Fifty Rupees currency notes as Exhibits P/6 to P/81.
Recovery memo, Exhibit PW-1/D and a rough site plan Exhibit
PW-2/A was also prepared at the spot. Reading of evidence of
PW-2 would show that his evidence is trustworthy and reliable.
Evidence of PW-1 and PW-2 has been corroborated by the
evidence of PW-6 Inspector Kaul of CBI, and who has supported
the case of the prosecution. PW-6 has unerringly deposed that on
28.03.1995, he was posted as Inspector, Anti-Corruption Branch,
CBI, Delhi. PW-6 has deposed that on receiving the pre-arranged
signal from PW-2 (an independent witness), he immediately
rushed towards the spot along with other members of the raiding
party. On his instructions, Rajinder was apprehended and who
(Rajinder) stated that he was told by the appellant, D.S.
Chauhan, to take the money and had no role to play. PW-6 has
further deposed that on his instructions one Ganesh searched
Rajinder Kumar and recovered Rs.4,000/- from the left hand side
pocket of his pant. Thereafter both the independent witnesses
compared the currency notes and it was found that the money
recovered from Rajinder bore the same numbers as were
recorded in Exhibit PW-1/B1. Thus, both PW-2 and PW-6 have
stated that the money recovered from Rajinder was the same
which were marked to be given to the appellant, D.S. Chauhan,
in case any illegal gratification is sought for by him. PW-6 has
also identified the case property as Exhibit P-1 (Bottle of right
hand wash); Exhibit P-2 (bottle of left hand wash); and Exhibit P-
3/ (Bottle of pant pocket wash). PW-6 also identified the
Hundred rupee currency notes as Exhibits P-4 and P-5 and the
Fifty Rupee currency notes as Exhibits P-6 to P-81. PW-6 has also
deposed that while the interrogation of Rajinder was taking
place, appellant D.S. Chauhan, slipped away. He asked Rajinder
about the whereabouts of D.S. Chauhan and Rajinder informed
him that appellant, D.S. Chauhan was in the room a few
moments back and he has just gone out of the room. As per PW-
6 this fact was also confirmed by the independent witness,
Mahinder, PW-2. PW-6 further stated that he along with
Mahinder came out in the corridor in search of appellant, D.S.
Chauhan, but he was nowhere to be seen. The staff of DESU
informed PW-6 that appellant, D.S. Chauhan, has gone away
from the office. Thereafter, PW-6 tried to contact the Executive
Engineer, In-charge, at the said office as well as the Assistant
Engineer, but they were unavailable. After sometime the said
persons arrived at the spot and from them the address of
appellant, D.S. Chauhan, was taken. PW-6 further stated that he
sent some members of the CBI team to the residence of
appellant, D.S. Chauhan, with a direction to arrest him.
Thereafter, he made a requisition to senior officers and seized
some records of DESU including the attendance register vide
Exhibit PW-3/A. Appellant, D.S. Chauhan, was later on arrested
on 24.04.1995 and was correctly identified by PW-6 in the Court.
The trial court discredited the entire evidence of PW-6, Inspector
Kaul, on the ground that certain allegations were pending
against PW-6. Even otherwise, merely because the trial Court has
come to the conclusion that the evidence of PW-6 is not reliable,
the entire case of the prosecution cannot be defeated. PW-2 has
also stated that while the search of Rajinder was going on,
appellant, D.S. Chauhan, slipped away. The officials of the CBI
searched for appellant, D.S. Chauhan, in the office, but in vain.
Thereafter, PW-2 along with other officials went to the residence
of Chauhan, but he was not found there.
39. It has also been argued before me that the appellant was not
present in the office on the day of the raid and in support thereof
the employee attendance register of the concerned DESU office
has been relied upon. Statement of the appellant D.S. Chauhan
was recorded under Section 313 of the Cr.P.C. wherein the
appellant has stated that on 28.03.1995 he was on leave and
that he did not meet the complainant. The appellant further
stated that the complainant had filed a false complaint against
him because of the fact that a few days prior to the alleged
incident, hot words were exchanged between the appellant and
the father of the complainant. Further the witnesses have
deposed against him under the pressure of CBI. Learned counsel
for the appellant has submitted before me that the appellant had
applied for leave for a period of ten days w.e.f. 28.03.1995. It
would be pertinent to point out that the appellant in his
statement under section 313 Cr.P.C. admitted that on
17.01.1995 one Shri Arun Kumar (complainant) proprietor of M/s
Garg Hosiery Works, applied for an electricity connection for his
factory premises at A-309, Shastri Nagar, vide his application
no.PW-1/C. The appellant has further admitted that in February,
1995, he visited the aforesaid factory premises for inspection
and asked the complainant to visit his office after ten days so as
to find out the progress of his application. The appellant has
further admitted as correct that ten days after the inspection
visit, the complainant visited his office at Shahzada Bagh, Daya
Basti, Delhi, and enquired about his electricity connection.
However, the appellant, denied having ever demanded any kind
of illegal gratification. I have carefully gone through Exhibit PW-
3/A, the attendance register of the concerned DESU office.
Perusal of the attendance register shows that the attendance of
no employee including D.S. Chauhan has been marked for the
date of 28.03.1995 and 29.03.1995. In the column for the name
of the employees, eight persons have been mentioned for the
month of March, 1995. It is seen that with respect to one Sh. P.D.
Singh, the columns from 17.03.1995 till the seizure of the
attendance register on 29.3.1995, no attendance has been
marked. Similarly, no attendance has been marked for Sh. V.P.
Sharma from the date of 07.03.1995 to 29.03.1995. The entries
with respect to one Sh C.D. Sharma are also blank for the entire
month of March. Even the attendance column of Smt. Sushila
Devi is blank at several places. It is seen that of the eight
employees mentioned in the said register, there are incomplete
entries with respect to as many as five employees. I am in
respectful agreement with the opinion of the learned trial Court
that the attendance register is an unreliable document inasmuch
as PW-3 (the official time keeper at DESU) has also deposed that
the attendance of employees was not marked in the attendance
register, EX. PW-3/A after 27.03.1995. In view of the fact that the
said attendance register, Exhibit PW-3/A contains incomplete
entries with respect to several employees at the said DESU
office, the same is held to be unreliable as holding any
evidentiary value before this court.
40. Although it is settled position of law that Defence Witnesses are
entitled to the same level of reliability and protection and are to
be treated at par with prosecution witnesses, however, in the
facts of this case, I find the evidence of DW-1 to be unreliable.
Ex. PW3/B is the leave application dated 03.04.1995, Agra,
addressed by the appellant, D.C. Chauhan to the Assistant
Engineer, Zone 422, (D) SKN, DESU, Shahzada Bagh, Delhi.
Relevant portion of the said letter is reproduced as under:
―Respected Sir,
In continuation of my previous leave
application sent through my father but not
received in your office for the reason best
known to them.
I am sad to say that on 29.03.95, I had
to leave my office in haste on receipt of
massage (sic message) about the serious
illness of my younger brother at Agra. My
brother has still not recovered from illness
and my physical presence at Agra is
essential to look after him.
I may kindly be granted leave for ten
days w.e.f. 29.3.95 with permission to leave
the station.
Yours faithfully
- sd -
D.S. Chauhan
Inspector - 2 - 422 (D) SKN‖
41. A bare perusal of Exhibit PW-3/B shows that the appellant had
sought leave for a period of ten days w.e.f. 29.3.1995. This letter
is dated 03.04.1995 and has been sent from Agra. In the said
leave application, the appellant has himself stated that on
29.3.1995 he had to leave his office in haste on receipt of
message of his younger brother at Agra. Thus it is the
appellant's own version that he was present in the office on
29.3.1995, contrary to what he has stated in his statement under
Section 313 of Cr.P.C. Ex. PW3/B clearly falsifies the stand taken
by the appellant that he was on leave on 29.03.1995 (the day of
the raid by CBI). I find no force in the contention of learned
counsel for the appellant that DW-1 is a reliable witness or that
the version of Rajinder (co-accused before the Trial Court) is
correct. On the contrary, in view of Ex. PW-3/A (attendance
register) relied upon by the appellant himself; Ex. PW-3/B (leave
application of the appellant), it can be safely said that the
appellant was present in his office on 29.3.1995. I have no doubt
in my mind that the said appellant was present in his office at
Shahzada Bagh, Delhi, on 29.3.1995 at the time of the raid and
that he sneaked away from his office as soon as he got to know
that a raid was underway.
42. In view of the totality of the facts and circumstances of this
case, I find that the appellant is guilty of having demanded and
accepting illegal gratification in terms of money from the
complainant (PW-1). PW-1 has clearly deposed against the
appellant and established that repeatedly illegal demands were
made by the appellant. PW-2, an independent witness, has also
stated that the appellant is responsible for his illegal design of
having demanded and accepting bribe from the complainant.
The appellant has been unable to show before this court as to
why should the testimony of PW-2 be not taken into account.
The presence of the appellant in his office on 29.3.1995 at the
time of raid stands affirmed by the testimony of PW-1; PW-2; PW-
6; attendance register (EX. PW3/A) and the leave application (Ex.
PW3/B) dated 03.04.1995 written by the appellant himself from
Agra, placed on record. Accordingly, I find no infirmity in the
judgment and order on conviction dated 31.05.2001 passed in
C.C. No. 53/95 and R.C.No. 25(A)/ 95-DLI/ CBI/ ACB/ New Delhi.
43. The appeal stands dismissed. In case the appellant is on bail, he
be taken into custody, so as to serve the remaining portion of his
sentence.
G.S. SISTANI, J.
July 20, 2009
‗msr//'
