Delhi High Court
Ram Chander vs State (Govt. Of Nct Of Delhi) on 4 May, 2009
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.APP. 461/2007
% Date of reserve: 08.04.2009
Date of decision: 04.05.2009
RAM CHANDER ... APPELLANT
Through: Mr. Sunil Kumar, Sr. Adv. with
Mr.Atul Kumar, Adv.
Versus
STATE (GOVT. OF NCT OF DELHI) ...RESPONDENT
Through: Mr. Navin Sharma, APP for state
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed to Yes
see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
: MOOL CHAND GARG, J.
1. This order shall dispose of the aforesaid criminal appeal
preferred by the appellant who was sent for trial in case FIR No.
20/1999 registered at P.S. Anti Corruption Branch Delhi, under
Sections 7/13 of the Prevention of Corruption Act, 1988 (hereinafter
referred to as „the Act‟) on the complaint of Sh. Balwinder Singh.
In the complaint Ex. PW5/A it was alleged, that the appellant while
being posted as Resident Medical Officer in the Jail Hospital of Jail
No.3 of the Central Jail, Tihar, later posted as Resident Medical
Officer w.e.f. 21.06.1999, demanded bribe from the complainant
who was in judicial custody and was undergoing treatment in the
Jail Hospital as an Indoor patient, on the threats of discharging him
from jail hospital, unless and until the said complainant paid a sum
of Rs.10,000/- to the appellant and Rs.5,000/- to one Dr. Krishan
Kumar. Consequently, on 25.06.1999, the complainant met the Jail
Superintendent Sh. Yashpal Garg PW-5, to whom he is stated to
have given the aforesaid complaint.
2. On receipt of the complaint, Sh. Yashpal Garg, (PW5)
discussed the matter with Addl. Director General (Prison)
(hereinafter referred to as „ADG(P)‟) Sh. Ajay Aggarwal, who then
discussed the matter with Additional Commissioner of Police (Anti
Corruption) who deputed Inspector Niranjan Singh (PW10) of Anti
Corruption Branch, to get in touch with ADG (P). At that stage, the
complaint was also handed over by the Jail Superintendent to
Inspector Niranjan Singh beside informing him that, Balwinder
Singh will go to Tis Hazari Courts on 29.06.1999, which was the
next date in his case.
3. On 29.6.1999 Balwinder Singh came to Tis Hazari Courts Lock
Up, where Inspector Niranjan Singh met him and made enquiries
about his complaint. Mrs. Pramjeet Kaur, (PW8) the wife of the
complainant also met Balwinder Singh in Tis Hazari Courts Lock UP
on the same day when she was asked by the complainant to
arrange Rs.15,000/- for handing over the said amount to Jail
Superintendent. The Complainant is stated to have given another
communication to the Jail Superintendent on 30.6.99 informing
him, that his wife would be bringing the money at the gate of
Central Jail No.3 on 01.07.1999. This fact was also informed by PW-
5 to PW10. Paramjit Kaur after arranging the money handed over
the same to PW-5 on 1.7.1999 through a messenger sent by PW5.
4. Inspector Niranjan Singh then organized a raiding party
consisting of Panch Witness P. Sudhir Babu (PW7), Inspector Y.S.
Negi (PW11), SI S.N. Pandey, Ct. Ram Chander, SI Dal Chand under
the supervision of ACP Satyender Nath (PW12). The raiding party
reached the office of Sh.Yashpal Garg Superitendent Tihar Jail No.3
where complainant Balwinder (Ex. PW10/A) was also called. The
statement of the complainant Balwinder Singh Ex.PW10/A was then
recorded in presence of Panch Witness who attested the same.
The complainant, at that time also produced 30 GC notes each of
Rs.500/- denomination before the raid officer given to him by Jail
Superintendent after receiving it from PW8, who recorded number
of these 30 GC notes in the pre-raid report and applied
phenolphthalein powder on those notes. He also asked the panch
witness to touch these notes and to dip his fingers in a colourless
solution due to which the colourless solution turned pink. By giving
this demonstration, he told the complainant to hand over the GC
notes when demanded by Dr. Ram Chander. The complainant was
instructed to remain close with the panch witness and to have
conversation in such a manner that the panch witness could hear
the same. Panch Witness and Balwinder were directed to give a
signal after the transaction was over by rubbing head with hand.
All these proceedings were recorded in the post-raid report which is
Ex. PW10/B.
5. It is also the case of the prosecution that PW-7, Sh. Sudhir
Babu the Panch witness then went to the hospital alongwith the
complainant and positioned himself in the corridor of the hospital
outside the office of the appellant while complainant went to meet
Dr. Ram Chander. After 2/3 minutes, he came out and gave signal
indicating the completion of the transaction and then panch
witness gave the predetermined signal to the raid officer. It is then
the raid officer along with other members entered the room of the
accused and were informed by the complainant that Dr. Ram
Chander had accepted Rs.10,000/- from him as the bribe money.
The accused was seen by the raid officer having the GC notes in his
right hand who tried to keep the bribe amount in the drawer of his
table and at that moment the appellant was apprehended and 20
GC notes each of Rs.500/- recovered from the right hand of the
accused. The panch witness tallied the numbers of the recovered
GC notes with the numbers recorded in the pre-raid report and the
numbers of these recovered GC notes were found to be the same.
He prepared Post Raid report Ex.PW10/B. Those notes were then
taken into possession vide memo Ex.PW7/A. The raid officer took
the wash of right hand of the accused in colorless sodium
carbonate solution due to which the solution turned pink which was
transferred into two clean bottles and the said bottles were sealed
and labeled as RHW-I and RHW-II and seized vide seizure memo
Ex.PW-7/B and PW-7/C a rukka was prepared vide exhibit PW10/B
and on that basis FIR Ex.PW10/E was registered. Since, the raid
qua Dr. Krishan Kumar failed and the said amount of Rs.5,000/-
vide EX.PW7/C was then deposited by the complainant in the Jail.
Thereafter, Inspector Y.S. Negi, the Investigating Officer was called
at the spot and he was handed over one carbon copy of the raid
report, sealed exhibits, seizure memos etc. The I.O. also prepared
the site plan, collected the photocopy of the treatment record of
the complainant and the bio-data of the accused along with his
posting order. I.O. also took in possession the complaint EX.PW 5/A
dated 25.6.99 as well as the intimation dated 30.6.1999. The
exhibits were given to ACP Satender Nath for safe custody. The
sealed bottles and the recovered money etc. were deposited in
Malkhana.
6. After completing investigation Challan was filed after
obtaining sanction from the competent authority for prosecuting
the appellant under Section 7 and 13 of the Prevention of
Corruption Act of which cognizance was taken by the Special Judge.
After the charges were framed against the appellant under Section
7 and 13(2) read with Section 13(1)(d) of the P.C. Act. The
prosecution led evidence and examined 12 witnesses to prove their
case.
7. PW1 Sh. R. Mohan Kumar who accorded sanction for
prosecuting the appellant on the basis of a report received from
Anti Corruption Branch has proved Sanction order EX.PW1/A. He
has deposed that he granted the sanction after perusing the
documents of this case received from Anti Corruption Branch and
after satisfying himself and applying his mind to these documents.
PW2 Ct. Mahender Singh proved the deposit of 20 GC notes each of
Rs.500/- denomination and two sealed bottles Mark RHW-II and
LHW-II vide EX.PW4/A in the malkhana. He also appeared as PW-4.
PW3 is Sh. Brijesh Tiwari, Male Nurse, Central Jail Tihar who handed
over the treatment file of Balwinder Singh to the Investigating
Officer vide memo Ex.PW-3/A. PW5, Sh. Yashpal Garg,
Superintendent Tihar Jail No.3 has proved the complaint given to
him by Balwinder Singh and the subsequent communication as
Ex.PW5/A and Ex.PW5/B as well as the other circumstances leading
to the laying down of the trap recovery of money and arrest of the
appellant in this case. PW6 HC Surender Singh proved the deposit
of the sealed bottles, containing remnants of the washes received
from FSL after chemical analysis, in the malkhana P.S. Civil Lines.
PW7 Sh. P. Sudhir Babu the panch witness deposed about the
recording of the report Ex.PW10/A. He also witnessed the pre-raid,
raid and post-raid proceedings. PW8 Paramjit Kaur the wife of the
complainant deposed about her conversation with her husband on
29.6.99 and about the arranging of money and handing it over to
PW-5. PW9 Sh. M.S. Meena, Superintendetn Jail No.3 proved that
he took charge on 2.7.1999 from Sh. Yashpal Garg. PW10 is the
raid officer Inspector Niranjan Singh and has deposed the entire
story of the prosecution. PW11 Inspector Y.S. Negi is the
investigating officer of the case and PW12 is ACP Satender Nath.
8. The incriminating evidence was put to the accused for his
explanation u/s 313 Cr.P.C. Accused admitted that in June/July
1999 he was posted as RMO in hospital of Jail No.3 while Sh.
Yashpal Garg was the Superintendent of Jail No.3. He also admitted
that the complainant Balwinder Singh was admitted in the Jail
Hospital and used to be taken to RML and Pant Hospital as he was a
heart patient and Sr. Resident Doctors Dr. Bir Singh and Dr. Krishan
Kumar in the jail Hospital of Jail No.3 were attending him.
9. According to the appellant, he was implicated falsely due to a
conspiracy between Yashpal Garg, complainant and Addl. Director
General (Prison) Sh. Ajay Aggarwal but has not been able to
substantiate his defence. He denied the prosecution case and
stated that he never accepted any money from the complainant.
He also stated that nothing was recovered from his hand and that
the money was lifted from the floor of the room and his table. He
also stated that wash of his hands was not taken at the spot but all
the proceedings were conducted in the AC Branch. He stated that
sanction for his prosecution was granted without application of
mind. He also stated that a board consisting of four members
admitted Balwinder in the jail, and only the board was competent
to discharge him from the hospital. He also stated that Balwinder
remained admitted in the Jail hospital throughout his detention
period. He stated that earlier he was SMO and as a part of
conspiracy he was promoted to the post of RMO though he was not
willing. He also stated that complainant was a man of bad
character and after his release from the jail he was murdered in
Gurgaon. He stated that he neither admitted the complainant in
jail hospital nor ever examined him and so there was no occasion
for him to demand the bribe as alleged.
10. In defence, appellant also examined two witnesses, namely,
DW1 Dr. Amitabh Bhasin, RMO, Central Jail Tihar who proved the
order No.F-5/RMO/CJH/99/2445-55 dated 14.06.1999 issued by Dr.
S.P. Barua, the then RMO Central Jail Hospital, Tihar, as Ex. DW-1/A
and DW2 Dr. S.P. Barua Dy. Medical Superintendent, DDU Hospital
who proved that earlier he was posted as RMO in the hospital of
Tihar Jail No.3. He also deposed that the post of RMO is the
administrative post and RMO does not attend patients. He
deposed that Sr. Medical Officer, Sr. Resident Doctor and Jr.
Resident Doctors are competent to admit or discharge the
patients and RMO is not to admit or discharge any patient.
He proved the order Ex.DW-1/A was issued by him.
11. The learned Special Judge, however, convicted the appellant
under Section 7, 13(2) read with Section 13(1)(d) of the P.C. Act
and sentenced him to undergo RI for 4 years and to pay a fine of
Rs.20,000/- in default to undergo RI for 1 years u/s 7 of the P.C. Act
and to RI for 5 years and to pay fine of Rs.30,000/- in default to
undergo RI for 1 ½ years u/s 13(2) PC Act read with Section
13(1)(d) of the P.C. Act. Both the sentences of imprisonment had to
run concurrently.
12. According to the appellant, the judgment of the Special Judge
is un-sustainable in law as the essential ingredients of the offence
under Section 7 and 13 were not made out. It is submitted that;
(i) There is no evidence of any previous demand or any
demand at the time when complainant visited the
appellant. And as such circumstances alone cannot be
relied upon to bring home the charge of accepting the
bribe also for the following reasons:-
a) The complainant is dead.
b) PW5 says that the complaint was neither written
nor signed in his presence. The letter dated
30.6.09 was also not written in his presence. No
one has proved the contents of complaint, Ex.
PW5/A.
c) The complaint was never put to the wife Paramjit
Kaur PW-8 to prove the veracity of the complaint
or to prove the handwriting of the Complainant.
d) PW10 says that the complaint was given to him
on the same day, i.e., 25.6.99 whereas PW5 says
that he only spoke to him on phone.
e) That there are;
i) No DD entry of complaint; ii) No handing
over memo of complaint; iii) NO entry in the
Register of Tihar Jail about the visit of PW10;
and iv) ADG(P) in whose presence complaint
was allegedly handed over has not been
examined.
f) The complaint dated 25.6.1999 is totally vague
and does not say how/when demand was made.
g) Letter dated 30.06.09 does not talk of any
demand. It talks about the visit of the
complainant‟s wife to Tis Hazari,but his wife PW8
says she went to Tihar Jail on 29.6.1999 and
contradicts herself.
h) PW10 Niranjan Singh who is alleged to have
talked/discussed the matter with complainant on
29.6.1999 did not make any record of the same.
i) There is material contradiction about the
handing over of the case property. PW8 says
that on 1.7.99 she informed PW5 to send
someone, and she handed over Rs.15,000/- to
the said person outside the jail. She could not
tell the details of the persons, her sister who had
accompanied her was not examined. The
tenants from whom she had collected money
were also not examined. She did not make any
entry in the Mulakat Register. PW5 says
Rs.15,000/- handed over by the lady at the
direction of the complainant to us.
ii) There is also no evidence of acceptance of bribe
money inasmuch as:
a) Insp. Y.S. Negi who was a member of the raiding
party and was made the I.O. has stated that
complainant was instructed to remain close to
Panch witness and have conversation in such a
manner that Panch Witness could hear. But the
complainant told panch witness to stay outside
near window. Complainant stays in the
accused‟s chamber for only 2/3 minutes then on
coming out gave signal to Panch witness. Panch
witness says he neither heard nor saw anything.
The evidence of Raid Officer about acceptance
of bribe is only hearsay.
b) PW10, the Raid officer says that he recovered
money from the right hand of accused. The
Panch Witness says that currency was on the
table and the floor and categorically contradicts
the evidence of the Raid Officer.
c) Inspector Y.S. Negi was a member of the raiding
party who was also made the I.O. This is against
the principles of justice and he falls in the
category of interested witness who could not be
relied upon. Thus, when demand and
acceptance is not proved no presumption can
arise. One cannot raise a presumption to prove
acceptance.
(iii) Regarding statement under Section 313 Cr.P.C.
the observation of the Court that it provides a missing
link in the chain of circumstances on the basis of the
alleged false denial by the accused in his statement
under Section 313 Cr.P.C. is illegal.
(iv) It is submitted that falsity of defence cannot take
the place of proof of fact, which the prosecution has to
establish in order to convict the accused. A false plea
may be considered as an additional circumstance, if the
other circumstances proved and establishes the guilt of
the accused. In this regard reliance has been placed
upon a judgment delivered in the case of (1997) 7 SCC
156. It is stated that there is no question of any false
denial. It is only when there is a proved fact that false
denial may provide an additional circumstance. Here
the fact regarding acceptance/recovery is not a proved
fact. The accused has never proved/shown having a
"consenting mind" for the alleged bribe.
(v) It is also stated that the question/circumstances
put forward to the accused were not proper. The
questions have been so formulated/made complex as if
to supplement the prosecution. The circumstance put
forward to the accused omits, what panch witness said,"
that the currency notes were recovered from the table
and the floor". He was not afforded any opportunity to
explain the same. The petitioner has referred to
Q.No.13 and Q. No.15/16 in this regard and submits that
these questions are so mixed up that the accused is
perplexed. Reliance has been made on Hari Ram Vs.
State, 1972 Crl.L.J. 961.
(vi) It is further submitted that the accused had put
forward a case of conspiracy involving the ADG(P) [ref.
Q.Nos.3, 8, 31]. It is submitted that the defence was
proabable because; (a) there are contradictions
regarding handing over complaint on 25.6.1999, (b)
there are also the contradictions regarding who was
handed over money; And also because the ADG Prisons
has not been examined as a witness besides that there
is Categorical statement of the appellant that cash was
not recovered from his right-hand which is corroborated
by the statement of the Panch Witness. Two DWs
examined in rebuttal says that accused was not
attending on the complaint and that he had no authority
to admit or discharge patients. Thus it is submitted that
the trial Judge has failed to consider that the explanation
offered by the accused was probable. He has relied
upon judgment delivered in 1979 SC 1455, as well as the
following judgments i.e.
(A) Statement under Section 313 Cr.P.C. falsely recorded.
i) Tanvi Ben Pankaj Kumar Divetia Vs. State
of Gujarat (1997) 7 SCC 156 (paras 44, 45)
(B) Material contradictions in statements
i) Suraj Mal Vs. The State (Delhi
Administration) AIR 1979 SC 1408
(C) The trial Court failed to consider the explanation offered
by the accused.
i) Man Singh Vs. Delhi Administration 1979
SC 1455 (para 2)
ii) Hari Ram Vs. State 1972 Crl.L.J. 961 (78)
240 (para-6)
(D) Prior demand to be proved by evidence
i) Trayambak Lilaji Binnar Vs. State of
Maharashtra 2002 Crl.L.J. 3059 (Para
10,11,16)
(E) Demand to be proved by person from whom it is made
i) Ram Swaroop Rathore Vs. State of M.P.
(paras 12-16)
13. The learned APP besides the written synopsis filed by him has
also relied upon the following judgments in support of his
submissions opposing the stand of appellant :
i) Kishan Chand Mangal Vs. State of
Rajasthan AIR 1992 SC 1511 (paras 11, 20)
14. I have given my thoughtful consideration to the submissions
made by the parties including their written submissions and have
also gone through the LCR and the judgments cited by both the
sides.
15. At the outset, I may observe that insofar as the plea taken by
the appellant that the sanction order has not been proved in
accordance with law, I find that the sanction order has been roved
by the sanctioning authority himself by appearing as PW-1, who
has categorically deposed that he granted the sanction after going
through the papers produced before him. Once the sanctioning
authority has been produced in the Court unless there is anything
brought on record which may vitiate the sanction order, the
sanction order has to be taken as proved. In this regard reference
can also be made to a judgment delivered by the Hon‟ble Supreme
Court in the case of R. Sundrajan Vs. State [2006 (12) SCC 749],
wherein it was held:
12. There is no dispute that the sanction order was passed by
the competent authority.
13. Dr. A. Chelliah, learned Counsel for the appellant, however,
submitted that the sanction order was vitiated as there was no
material on which it could have been passed. We do not agree.
14. In this connection, it may be
mentioned that we cannot look into the
adequacy or inadequacy of the material
before the sanctioning authority and we
cannot sit as a Court of appeal over the
sanction order. The order granting
sanction shows that all the available
materials were placed before the
sanctioning authority who considered the
same at great details. Only because some
of the said materials could not be proved,
the same by itself, in our opinion, would
not vitiate the order of sanction. In fact in
this case there was abundant material
before the sanctioning authority, and
hence we do not agree that the sanction
order was in any way vitiated.
There is no merit in this appeal. Hence it is dismissed.
16. Now coming to the other issues, at the outset, I may refer to
a judgment of the Madhya Pradesh High Court also relied upon by
the appellant, delivered in Ram Swaroop Rathore Vs. State of
Madhya Pradesh, 2000 Crl. L. J. 1882, where it has been held:-
12. For the purposes of proving a case under Sections 7 and 13 of
the Prevention of Corruption Act the prosecution is obliged to prove
that there was demand of money which was not legal or in other
words that the public servant was demanding illegal gratification in
respect of an official act and he in fact received or obtained the
money as an illegal gratification, by corrupt or illegal means or by
abusing his position as a public servant, or while holding office as a
public servant only then a person can be convicted. The recovery
de hors the demand would not be sufficient to convict the
accused.
17. In the aforesaid case reliance was also made on a judgment
of the Apex court delivered in Suraj Mal Vs. State (Delhi Admn.),
AIR 1979 SC 1408. In the said case while appreciating the
provisions of Section 5(1)(d) of the Prevention of Corruption Act,
1947, the Apex Court observed, that in a case of bribery mere
recovery of money de hors from the circumstances under which it
is paid is not sufficient to convict the accused when the substantive
evidence regarding demand is not reliable. In the light of the
aforesaid, the observation made by the Madhya Pradesh High Court
in Ram Swaroop Rathore (Supra) in paragraphs 14 to 16 becomes
relevant, which is reproduced hereunder:-
14. Undisputedly the complaint Ex. P.14 was made by C.
Bhhatacharya. The said C. Bhhatacharya has not been examined by
the prosecution. The learned trial Court has observed that number of
the summons were issued for C. Bhhatacharya to secure his
attendance but every time the Court was informed that his
whereabouts were not known. Similarly reports about Som Shekhar
were received that he had gone to Dubai. Similarly for witness
Ramesh Dhage, the Court was informed that the witness Ramesh
Dhage was not traceable. The learned trial Court without appreciating
the provisions of law that in absence of the examination of the original
complainant - the first information report which is a former statement
of the first informant does not stand proved. The person who received
the report can only prove that such report was submitted before him
but he would not be legally entitled to prove the contents of the
documents or the correctness of the statements made in the said
report. In my opinion, the Court was not justified in observing that in
absence of the examination of the complainant if the facts prove that
an offence was committed then the Court is competent to convict the
accused for an offence under the Indian Penal Code, therefore, in a
case like present accused could be convicted. The said principle may
be right in some cases where others can prove commission of offence
but in a case where the prosecution is required to prove the fact of
demand and acceptance of the money then the demand can only be
proved by the person from whom it was made. True it is that the other
witnesses have said that in presence of them C. Bhhatacharya stated
that the accused was demanding Rs. 700/- but the statement made by
C. Bhhatacharya that the accused demanded the money could only be
proved by C. Bhhatacharya. The person who received the information
either on the basis of the written report or from C. Bhhatacharya
cannot say that the information supplied to him was true or correct.
The fact of demand can only be proved by the person from whom it
was made................
15. It is trite to say that the complaint or the first information report
cannot be used as substantive evidence of the truth of the facts
stated therein. The statements can only be used to show that the
evidence of those witnesses given in the Court was false. The said
statement cannot establish that what was stated out of the Court in
the said complaint or in the first information report was true. In the
matter of Suresh Kumar (1994 Cri LJ 3738) (supra) the Court found
that as the complainant Phalwan Singh and other witness Kalyan
Singh turned hostile there was no evidence in support of the
prosecution story that accused Suresh Kumar demanded a sum of Rs.
200/-. In the case in hand, there is no evidence to prove that the
accused demanded the illegal gratification. True it is that the recovery
was made from the accused but the fact still remains that the
prosecution has failed to prove that any demand was made by the
accused.
16. In absence of positive, cogent and clinching evidence about the
demand, it would not be possible to hold that the accused made a
demand and in furtherance of the demand obtained the money from
the complainant.
18. The appellant has also assailed the approach of the Special
Judge who has drawn a presumption under Section 20 of the P.C.
Act by relying upon a judgment delivered by the Apex Court in the
case of Tanviben Pankajkumar Divetia Vs. State of Gujarat, (1997)
7 SCC 156, wherein it has been held:-
44. The Court has drawn adverse inference against the accused for
making false statement as recorded under Section 313 of the Code of
Criminal Procedure. In view of our findings, it cannot be held that the
accused made false statements. Even if it is assumed that the accused
had made false statements when examined under Section 313 of the
Code of Criminal Procedure, the law is well settled that the falsity of
the defence cannot take the place of proof of facts which the
prosecution has to establish in order to succeed.
However in that case the apex court also observed that," A false plea
may be considered as an additional circumstance if other
circumstances proved and established point out the guilt of
the accused. In this connection, reference may be made to the
decision of this Court in Shankarlal Gyarasilal Dixit v. State of
Maharashtra (1981) 2 SCC 35".
19. Some other portion of the judgment delivered in the case of
Suraj Mal (supra) is also relevant, which is reproduced hereunder; -
2. The defence of the appellant was that he was falsely implicated and
nothing was recovered from him nor did he make any demand for
bribe. The Special Judge on the basis of the evidence led before the
Court held that the evidence was extremely shaky and unconvincing
and was not sufficient to convict Ram Narain but nevertheless the trial
court convicted the appellant on that very evidence. In upholding the
conviction of the appellant the High Court completely overlooked the
fact that the very evidence on which the conviction of the appellant
was based, had been rejected with respect to the same transaction
and thus if one integral part of the story given by witnesses was not
believable, then the entire case failed. In other words, the position was
that while P.Ws. 6, 8 and 9 were disbelieved both in regard to the
factum of payment of the bribe and the recovery of the money,
regarding Ram Narain, the very same witnesses were believed so far
as the appellant was concerned. It is well settled that where witnesses
make two inconsistent statements in their evidence either at one stage
or at two stages, the testimony of such witnesses becomes unreliable
and unworthy of credence and in the absence of special circumstances
no conviction can be based on the evidence of such witnesses. For
these reasons, therefore, when the Special Judge disbelieved the
evidence of P.Ws. 6, 8 and 9 in regard to the complicity of Ram Narain,
it was not open to him to have convicted the appellant on the same
evidence with respect to the appellant, which suffered from same
infirmities for which the said evidence was disbelieved regarding the
complicity of Ram Narain. If the witnesses drew no distinction in the
examination-in-chief regarding acceptance of bribe by Ram Narain and
by the appellant and the witnesses were to be disbelieved with respect
to one, they could not be believed with respect to the other. In other
words, the evidence of witnesses against Ram Narain and the
appellant was inseparable and indivisible. Moreover, there is an
additional circumstance which throws a serious doubt on the complicity
of the appellant Suraj Mal. Although, in his statement at p. 71 of the
paper-book, the complainant has clearly stated that all the three
accused including the appellant had met him and demanded bribe of
Rs. 2,000, the appellant having demanded Rs. 100, yet in the report
which he lodged before Mr. Katoch, there is no mention of the fact that
the appellant at any time demanded any bribe at all. Even the
presence of the appellant at the time when the demand was made by
Devender Singh has not been mentioned, in this document. This
report, undoubtedly contains reference to a demand having been
made by the S.H.O. Devender Singh on behalf of the appellant, but
there is no statement in this report that any demand was made by
Suraj Mal directly from the complainant. If, in fact, the appellant would
have demanded bribe from the complainant just on the previous
evening, it is not understandable why this fact was not mentioned in
the report which the complainant submitted to the D.S.P. Katoch and
which is the F.I.R. constituting the evidence. We have perused the
statements of P.Ws. 6, 8 and 9 and we find that while in the
examination-in-chief they have tried to implicate all the three accused
persons equally without any distinction, in their cross-examination,
they have tried to save Ram Narain and made out a different story so
far as Ram Narain is concerned and have even gone to the extent of
stating that he did not demand any money and that he refused to
accept the money which was offered to him. In this state of the
evidence, we feel that the High Court was not right in convicting the
appellant. Mr. Lalit appearing for the State vehemently submitted that
whatever be the nature of the evidence in the case, it is an established
fact that money had been recovered from the bush-shirt of the
appellant and that by itself is sufficient for the conviction of the
accused. In our opinion, mere recovery of money divorced from the
circumstances under which it is paid is not sufficient to convict the
accused when the substantive evidence in the case is not reliable.
Moreover, the appellant in his statement under S. 342 has denied the
recovery of the money and has stated that he had been falsely
implicated. The High Court was wrong in holding that the appellant had
admitted either the payment of money or recovery of the same as this
fact is specifically denied by the appellant in his statement under S.
342 Cr. P. C. Thus mere recovery by itself cannot prove the charge of
the prosecution against the appellant, in the absence of any evidence
to prove payment of bribe or to show that the appellant voluntarily
accepted the money. For these reasons, therefore, we are satisfied
that the prosecution has not been able to prove the case against the
appellant beyond reasonable doubt. We, therefore, allow the appeal,
set aside the conviction and sentences passed against the appellant.
The appellant will now be discharged from his bail bonds.
20. The learned Additional Public Prosecutor has also contended
that the submissions made by the appellant are not tenable as the
circumstantial evidence available on record, proves that the
appellant did make a demand of bribe under the threats of
discharge of the complainant from the jail hospital, where he was
admittedly being treated an indoor patient. The circumstances also
shows that PW8 had brought the money of which numbers were
recorded in the pre-raid proceedings, which notes were also treated
with the phenophthalein powder and those very notes were
recovered from the appellant after the raid. The hands of the
appellant also turned pink when treated with the sodium carbonate
solution. The statement of PW-5, Shri Yashpal Garg proves that not
only the complaint was given to him alleging demand of bribe, but
the same was also endorsed by him to the other senior officers and
ultimately to the Anti Corruption Branch, Inspector Shri Niranjan
Singh. Insofar as the acceptance of the demand is concerned, it is
contended that once the money has been recovered from the
appellant, it was for the appellant to explain as to why did he
receive the tainted money and how did it reach to him and even if
it was scattered on the floor and on his table but no cogent
explanation has been given by the appellant rather he has given
false explanation which permits drawing of an adverse inference
against him. It is thus contended that presumption was rightly
drawn under Section 20 of the Act. In this regard, he also referred
to paragraph 11 of the judgment reported in Kishan Chand Mangal
Vs. State of Rajasthan AIR 1982 SC 1511, which reads as under:-
11. It was next contended that once Rajendra Dutt is not
available for evidence there is no evidence as to the demand of
bribe on Nov. 20, 1974, and it is not open to the Court to spell
out the demand from the contents of Ext. P-12. It is
undoubtedly true that Rajendra Dutt was dead before the
commencement of trial. It is equally true that the F.I.R. lodged
by him on Nov. 22, 1974, cannot be used as substantive
evidence nor the contents of the report can be said to furnish
testimony against the appellant. Such an F. I. R. would not be
covered by any of the clauses of Ss.32 and 33 of the Evidence
Act and would not be admissible as substantive evidence. The
question still remains whether there is any evidence of
demand of bribe on Nov. 20, 1974, in this case. A fact
may be proved either by direct testimony or by
circumstantial evidence. If the appellant did not visit the
Factory of Rajendra Dutt on Nov. 20, 1974, and made no
overtures demanding the bribe, on what rational hypothesis can
one explain the visit of Rajendra Dutt to the office of Dy. S.P., A.
C. D. on Nov. 22, 1974; his producing currency notes worth Rs.
150/-; a superior officer like the Dy. S.P., A. C. D., making all
arrangements for the trap and the raiding party going to the
house of the accused on Nov. 22, 1974? The visit of Rajendra
Dutt followed by the raiding party at the louse of the accused
on November 22. 1974, is admitted. Coupled with this, the fact
that Keshar Mal, P. W. 2 in his evidence stated that after
Rajendra Dutt entered the room in which appellant was sitting,
Rajendra Dutt on entering the room asked the appellant, "Hallo,
how do you do'. He further stated that the appellant replied, 'I
am sick and suffering from cold'. He deposed that thereafter the
appellant asked, 'Have you brought the money', whereupon
complainant Rajendra Dutt replied, 'Yes, I have brought the
money'. He further stated that thereafter Rajendra Dutt took
out the amount of currency notes from his diary and give the
same to the appellant who took the amount and kept it under
the pillow on the cot. If there was no prior demand the
subsequent events remain unexplained as also the demand as
deposed to by P. W. 2 Keshar Mal. But Mr. Anthony urged that
this part of the evidence of Keshar Mal cannot be accepted
because he has not stated this fact in his statement recorded in
the course of investigation. Simultaneously it was pointed out
that the other motbir Ram Babu is totally silent in his evidence
about this conversation between the appellant and the
complainant. Undoubtedly, the omission in the police
statement of Keshar Mal and non-mentioning all these
facts by the motbir would raise some doubt in the mind
of the Court about this conversation but as pointed out
earlier there are tell-tale circumstances which do
indicate that there must have been a demand and,
therefore, these circumstances as hereinbefore set out
will render support to the statement of Keshar Mal that
the demand at the time of visit of Rajendra Dutt must be
pursuant to earlier demand by the appellant. Therefore,
it is not proper to say that there is no evidence of the
demand of bribe as on Nov. 20, 1974.
21. Thus it is apparent that merely because the complainant has
not been examined, the complaint filed by the complainant cannot
be ignored. Even in the case of Trilok Chand Jain Vs. Delhi, 1997
Cr.L.J. 254 delivered under Section 4(1) of the Prevention of
Corruption Act as existed in the earlier statute and which is similar
to Section 20 the present Act, the following observations have been
made:-
8. Section 4(1) of the Prevention of
Corruption Act reads:
"Where in any trial of any offence punishable under
Section 161 or Section 165 of the Indian Penal Code (or
of an offence referred in clause (a) or clause (b) of
Section (1) of Section 5 of this Act is punishable under
sub-section thereof). It is proved that an accused
person has accepted or obtained or has agreed to
accept or attempt 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 obtain, 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 the said Section 161, or, as the case may
be, without consideration or for a consideration which
he knows to be inadequate."
From a reading of the above provision it is clear that its
operation, in terms, is confined to a trial of an offence
punishable under Section 161 or Section 165. Penal
Code or under clause (a) or (b) of Section 5(1) read with
sub-section (2) of that section of the Act. If at such a
trial, the prosecution proves that the accused has
accepted or obtained gratification other than
legal remuneration, the trial court has to
presume the existence of the further fact in
support of the prosecution case, viz, that the
gratification was accepted or obtained by the
accused as a motive or reward such as mentioned
in Section 161. Penal Code. The presumption
however, is not absolute. It is rebuttable the
accused can prove the contrary. The quantum
and the nature of proof required to displace this
presumption may vary according to the
circumstances of each case. Such proof may
partake the shape of defence evidence led by the
accused, or it may consist of circumstances
appearing in the prosecution evidence itself, as a
result of cross examination or otherwise. But the
degree and the character of the burden of proof
which section 4(1) casts on an accused person to
rebut the presumption raised thereunder, cannot
be equated with the degree and character of
proof which under Section 101, Evidence Act
rests on the prosecution. While the mere plausibility
of an explanation given by the accused in his
examination under Section 342 Cr.P.C. may not be
enough, the burden on him to negate the presumption
may stand discharged, if the effect of the material
brought on the record in its totality renders the
existence of the fact presumed, improbable. In other
words, the accused may rebut the presumption by
showing a mere preponderance of probability in his
favour, it is not necessary for him to establish his case
beyond a reasonable doubt.
9. Another aspect of the matter which has to be
borne in mind is that the sole purpose of the
presumption under Section 4(1) is to relieve the
prosecution of the burden of proving a fact which is an
essential ingredient of the offences under Section
5(1)(2) of the Prevention of Corruption Act and Section
161, Penal Code. The presumption therefore can be
used in furtherance of the prosecution case and not in
derogation of it. If the story set up by the prosecution
inherently militates against or is inconsistent with the
fact presumed the presumption will be rendered sterile
from its very inception. If out of judicial courtesy it
cannot be rejected out of hand as still-born.
22. Section 20 of the present Act is also reproduced hereunder:-
20. Presumption where public servant accepts
gratification other than legal remuneration.
(1) Where, in any trial of 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 from 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, without
consideration or for a consideration which he knows to
be inadequate.
(2) Where in any trial of an offence punishable under
Section 12 or under Clause (b) of Section 14, it is proved
that any gratification (other than legal remuneration) or
any valuable thing has been given or offered to be given
or attempted to be given by an accused person, it shall
be presumed, unless the contrary is proved, that he
gave or offered to give or attempted to give that
gratification or the 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.
(3) Notwithstanding anything contained in sub-sections
(1) and (2), the court may decline to draw the
presumption referred to in either of the said sub-
sections, if the gratification or thing aforesaid is, in its
opinion, so trivial that no inference of corruption may
fairly be drawn.
23. Thus the legal position which emerges regarding appreciation
of evidence in a trap case can be summarized as under:
(i) To succeed in such a case, the prosecution
is obliged to prove the previous demand of bribe,
its acceptance and the recovery of tainted money;
(ii) The demand can be proved by the
testimony of the complainant as well from the
complaint made by him if proved in accordance
with law;
(iii) However if the Complainant is unable to
appear for whatever reason such as his death, the
demand can be also proved by way of
circumstantial evidence;
(iv) A presumption as to the demand of bribe
can also be drawn if the tainted money i.e. the
money tendered as bribe money is recovered from
the possession of the accused, which presumption
of course is rebuttable;
(v) However, if the explanation given by the
accused about the recovery of such money is
false, it may be taken as an adverse circumstance
against the accused;
(vi) If the accused gives some defence that can
be scrutinized by the test of preponderance of
probability while the prosecution must prove its
case beyond reasonable doubt; and
(vii) However if the explanation given is false it
may be used adversely against the accused and
may strengthen the presumption under Section 20
of the Act.
24. The evidence led by the prosecution thus can be scrutinized
in the light of the aforesaid principles, by also taking note of the
following facts:-
(a) The Complainant Balwinder Singh is no more and has
not come in the witness box.
(b) The complainant was a jail inmate at the relevant
time and was being treated as an indoor patient for
several years.
(c) The appellant was earlier working as SMO in the
said Jail and later was promoted as RMO.
(d). PW-5 was posted as Jail Superintendent in the said
Jail at the relevant time.
(e) The defence put forward by the appellant has not
been substantiated by him as the two defence witnesses
examined by the appellant have not said anything about
any enmity between the appellant and the Jail
Superintendent or ADG (P).
(f) Appellant admits that the bribe money was
recovered from his room on the date of laying down the
trap. He has failed to give any plausible explanation of
the said amount having been found from his office.
(g) The CFSL report proves that the hand wash of
both the hands of the appellant had turned pink on being
dipped in the sodium carbonate solution on the date of
the raid.
(h) The money recovered comprises of the same GC
Notes which were given to the Complainant for being
offered to the appellant as is borne out form the pre-raid
and post-raid proceedings Ex.PW10/A, B and C.
25. At this juncture, I may also take note of the reply given by the
appellant of three questions put to him while recording his
statement under Section 313 Cr.P.C., which have also been referred
by the appellant. These questions and answers are reproduced
hereunder:-
Q3. Yashpal Garg discussed the subject matter of the
complaint of Balwinder with Addl. D.G. Prison and then
Addl. D.G. Prison talked to Addl. Commissioner of Police
AC Branch and consequent t this discussion Inspector
Niranjan Singh met Yashpal Garg in June 1999 and
Mr.Garg told him about the allegation of demand of bribe
by you and Dr. Krishan Kumar. What have you to say?
A. I do not know. However it was a conspiracy
between Yashpal Garg, complainant and Addl. Director
General Prison Ajay Aggarwal and because of this
conspiracy I was implicated falsely.
Q8. On 1.7.99 at about 11:15 AM Paramjit Kaur went
to Tihar Jail No.3 met Jail Superintendent and handed
over Rs. 15000/- to him which were comprising 30 GC
notes each of Rs. 500/- denomination in an envelope and
handed over to the official who had been sent by
Superintendent Jail. What have you to say?
A. It is also incorrect. The bribe money was
arranged by the Jail Authorities.
Q.31 Do you want to say anything else?
A. I am innocent. I never demanded or accepted
any bribe from the complainant and there was no
occasion for the same. I did not admit him in the jail
hospital nor examined him. He was admitted by the
Board consisting of four members and the board was
competent to discharge the complainant from the
hospital. I was not competent to discharge him from the
hospital. Since the time he was admitted in the jail he
remained in the hospital throughout. I was SMO in Tihar
Jail No.3 as a part of conspiracy I was promoted to the
post of RMO inspite of my unwillingness because a
separate chamber is provided to RMO and SMOs are
required to sit in their respective jail dispensaries. The
complainant is a bad character and after his release
form the jail he was murdered by his opponents and I
was falsely implicated in this case. I tender the copy of
the FIR, copy of my promotion letter and copy of my
charge as a part of my explanation for consideration by
the court which are collectively mark X.
None of these answers have been substantiated.
26. The ld. Special Judge accepted the case of the prosecution,
relying upon the testimony of PW-5 the Jail Superintendent, PW-7
Shri Sudhir Babu the Panch witness, PW-8 Smt. Paramjit Kaur and
PW-10 Inspector Niranjan Singh the raid officer besides the report
of FSL as well as by drawing an adverse influence against the
appellant for the reasons as specified in para 29 and 30 of the
judgment, which are reproduced hereunder:
29. The discrepancy pointed out by the defence
counsel in the testimony of the raid officer and the
panch witness regarding the position of the bribe
amount shows that the discrepancy crept in due to the
missing link because the bribe amount could find place
on the table of the accused and on the floor of his room
only when the accused had after handling the bribe
amount by both of his hands and thrown the bribe
amount on seeing the members of the raiding team in
his room. The settled law is that it is not for the Courts
to supply the missing links. However, the Apex Court in
a Judgment reported as Geetha vs. State of
Karnataka: 2000 1 AD (S.C.) 344 has held that false
denial by the accused under Section 313 Cr. P.C.
assumes importance as it would supply a missing link in
the chain of circumstances. In another Judgment
reported as Swapan Patra vs. State of West Bengal:
(1999) 9 SCC 242 the Apex Court held that it is a well
settled principle that in a case of circumstantial evidence
when the accused offers an explanation and that
explanation is found to be untrue then the same offers
an additional link in the chain of circumstances to
complete the chain. In the present case accused had
denied the presence of the bribe amount in his hand.
This denial by the accused is untrue in view of the FSL
result Ex. PW-11/C. There is no explanation of the
accused as to how both of his hands got tainted with
phenolphthalcin. By relying upon the Judgments of the
Apex Court referred in this para, I hold that the false
denial by the accused supplies the missing link in the
chain of the circumstances in this case. I, therefore,
hold that it stands established beyond reasonable doubt
that the accused was found in possession of the bribe
amount. In my considered view this discussion also
meets the contention of the Ld. Defence Counsel that
recovery of bribe amount is of no consequence if
demand of bribe is not proved.
30. When it stands established that accused was
found in possession of the bribe amount then it was for
him to explain the possession of the bribe amount. He
could explain the possession of the bribe amount either
through his explanation U/s 313 Cr. P.C. or by leading
evidence in defence. In his statement u/s 313 Cr.P.C.
accused has stated that he never demanded or accepted
any bribe from the complainant. As observed in the
foregoing paragraphs this explanation of the accused
has been found to be untrue as the wash of his right
hand and left hand clearly prove that he consciously
handled the phenolphthalcin treated GC notes. Accused
also stated that he was falsely implicated due to
conspiracy between ADG (Prison), Jail Superintendent
Yashpal Garg and the complainant but this alleged
conspiracy does not stand proved even by
preponderance of the possibility as discussed in the
foregoing paragraph numbers 14,15,16 & 17 of this
judgment. In my considered view the accused has failed
to explain the possession of the bribe amount through
his statement U/s 313 Cr.P.C. The evidence led by the
accused in his defence also does not explain the
possession of the bribe amount as DW1 Dr. Amitabh
Bhasin and DW2 Dr. S.P. Barua did not depose about this
fact. I, therefore, hold that accused has failed to explain
the possession of the bribe amount. Under these facts
and circumstances proved on record and by relying upon
the judgments of Apex Court reported as State of
Madhya Pradesh vs. Awadh Kishore Gupta & Ors. :
2003 X AD (SC) 170 and State of Andhra Pradesh
vs. C. Uma Maheshwara Rao & Anr. : 2004 V AD
(SC) 176, I hold that this court can presume u/s 20(1)
P.C. Act that the accused demanded gratification of Rs.
10,000/- from complainant as a motive ore reward which
was a gratification other than legal remuneration for
keeping the complainant as admitted patient in the
hospital of Tihar Jail No. 3 and for not discharging him
from the hospital in exercise of his official functions and
so the offence U/s. 7 of the P.C. Act stands established
against the accused beyond reasonable doubt. For the
foregoing discussion I further hold that accused obtained
a pecuniary advantage of Rs. 10,000/- from the
complainant Balwinder Singh by misusing his position as
a public servant and this was a gratification other than
legal remuneration as reward for keeping the
complainant as admitted patient in the hospital of Tihar
Jail No. 3 and for not discharging him from the hospital
and he thereby committed the criminal misconduct as
defined by sec. 13(1)(d) P.C. Act which is punishable u/s
13(2) P.C. Act and so in my considered view the offence
u/s 13(2) read with sec. 13(1)(d) P.C. Act also stands
established beyond reasonable doubt. In view of the
foregoing findings I convict accused Dr. Ram Chander
u/s 7 & 13(2) read with sec. 13(1)(d) P.C. Act.
27. It has been rightly observed by the trial court that the genesis
of a trap case lies in the previous demand of bribe by the accused
from the complainant which becomes the basis of laying a trap by
the Investigating Agency. Then it is for the Investigating Agency
to again prove the demand at the time when the trap was laid and
thereafter the question of acceptance and recovery of bribe money
also is required to be proved beyond reasonable doubt.
28. I would analyse the evidence which has come on record to
appreciate, as to whether the statements of PW 5, 7, 8 and 10
coupled with three documents, that is, Ex.PW5/A, Ex.PW5/B and
Ex.PW10/A makes out a case of previous demand or not.
27. PW-5 Yash Pal Garg, was admittedly the Jail Superintendent of
Jail No. 3, where the complainant Balwinder Singh was undergoing
treatment in the Jail Hospital while in judicial custody and where
the appellant Ram Chander was earlier working as SMO and at the
relevant time was working as RMO. This witness had interaction
with Balwinder Singh, the complainant, his wife PW-8 Smt.Paramjit
Kaur as well as with PW-10 Inspector Niranjan Singh, who appeared
as raid officer.
29. According to the prosecution, the complaint given by the
complainant was handed over by this witness to Inspector Niranjan
Singh who on that basis laid a trap after recording pre-raid
proceedings vide Ex.PW10/A. It was thereafter the trap was laid
down and money was recovered from the appellant which is the
basis of registration of FIR in this case.
30. About his interaction with the complainant, PW-5 has deposed
that the complaint Ex.PW5/A was handed over by the complainant
to him on 25.6.99 and he made the following endorsement on it:-
"Top Secret. The accused appeared before me while he
was going to hospital. The matter discussed with ADG (P)
personally who informed Addl. C.P. Anti Corruption for
further N/G".
31. Ex.PW5/A with endorsement is reproduced hereunder:-
To,
The Jail Superintendent
Jail No.3
Sir,
I am confined in Jail No. 3 due to some involvement in a
murder case from Police Station Janagkpuri. I am heart
patient for the last 8/10 years. I have taken treatment
from various hospitals and still suffering from hear
problem. I am admitted in Jail Hospital Jail No. 3. Dr.
Ram Chander is demanding Rs.10,000/- and Dr. / Krishan
Kumar who is known as K.K. is demanding Rs.5000/-
Both are regularly harassing me and are competing to
bring/arrays bribe money. Not only me Doctor‟s are
harassing and demanding bribe other persons. I am
making this complaint against them and I want that both
should be taken to task for demanding bribe and
harassing me to discharge from the hospital.
Kindly action may be taken against both the
doctors.
-sd-
P. Sudhir Babu
1.7.99
Top Secret dated 25.6.1999
The accused appeared before me -sd-
While he was going to hospital (BALWINDER PAL SINGH)
The matter discussed with ADG(P) JAIL NO.3
Personally who informed Add. C.P. TIHAR
Anti Corruption for further N/a.
-sd-
Yash Pal Garg
25.6.99
32. This endorsement also bears the signatures of PW-7 P. Sudhir
Babu dated 1.7.1999, which substantiates the existence of this
document at the time of raid. On the aforesaid point, PW-5 has not
been cross-examined by the appellant.
33. Another communication dated 30.6.1999 was also handed
over by the complainant to this witness, who again made an
endorsement on the said complaint. The signatures of PW-7 P.
Sudhir Babu dated 1.7.1999 are also there on this document. This
document Ex.PW5/B reads as under:-
To,
The Jail Superintendent
Jail No.3
Sir,
With reference to my complaint against Dr. Ram
Chander and Dr. K. K. dated 25.6.88 it is submitted that
yesterday when I want to be produce before DCP my wife
contacted me at Tis Hazari lock up.
I have discussed with my wife. She will bring the
money which will be given at Jail Gate on 1.7.99 at about 10
to 11 AM. It is requested that my money may be received
from my wife on my behalf. The money/this amount will be
used for giving to Dr. Ram Chander and Krishan Kumar. It is
requested that it should be ensure that I get back my
money after completion of the work.
Thanking you,
Dated 30-6-99
-sd-
P.Sudhir Babu
1.7.1999
Top Secret
Discussed with ADG(P). -sd-
Complaint will be handed over (BALWINDER PAL SINGH)
To Anti Corruption Branch
-sd-
Yash Pal Garg
30.6.1999
34. Even on this aspect of the matter, there is no cross-
examination of PW-5.
35. According to the appellant, PW-5 admitted in his cross-
examination that the complaint Ex.PW5/A had already been written
by Balwinder Singh before producing the same to him and that he
was not aware as to who wrote the same for Balwinder Singh.
However, in the cross-examination, no suggestion was given to this
witness that the said complaint had been fabricated by PW-5.
Similarly, with respect to second communication dated 30.6.1999
Ex.PW5/B I do not find that there is any cross-examination that
such complaint was not given to him by the complainant.
36. PW-5 also deposed that he had a talk about the complaints
given by the complainant with Inspector Niranjan Singh (PW-10) in
the last week of June, 1999 when he also narrated the allegations
of Balwinder Singh to him and that he also sent a message to
Inspector Niranjan Singh that the complainant would be sent to Tis
Hazari Courts Lock Up on 29.6.1999 where he can have a talk with
Balwinder Singh. Even on this aspect there is no cross-examination
of PW-5 by the appellant. He also deposed that after the receipt of
the sum of Rs.15,000/- through PW-8, Parmajit Kaur, he handed
over the same to Inspector Niranajan Singh when he came inside
the jail along with panch witness, PW-7 at about 12.30 PM on
1.7.1999 in his office where Balwinder Singh, the complainant was
also called inside the room and his statement was recorded by
Inspector Niranjan Singh in the presence of panch witness and
phenolphthalein powder was applied by Niranjan Singh on the GC
notes produced by Balwinder Singh to him. Right hand of the
panch witness was got touched and dipped into the solution of
sodium carbonate which turned pink. Necessary
demonstration/instructions were also given by Inspector to the
complainant as well as panch witness. The phenolphthalein treated
G.C. notes were returned back to Balwinder Singh who kept the
same in left as well as right side pocket of Kurta. Thereafter, the
member of the raiding party i.e. Inspector Niranjan Singh,
complainant and panch witness went inside the jail for doing the
trap. After completion of the raid around 2.30 PM Inspector
Niranjan Singh returned back the amount of Rs. 5000/-,
phenolphthalein treated GC notes, which this witness deposited
with the account of the prisoner maintained in the jail. The details
of the returned GC notes is also prepared which is Ex.PW5/C signed
by this witness at Point A.
37. The entire discussion of PW-5 with Inspector Niranjan Singh
stands corroborated by the statement of PW-10 and gives credence
to his deposition, including the question of receiving complaint
from the complainant and handing over the same to Inspector
Niranjan Singh before the raid was conducted.
38. It will also be appropriate to take note of statement of PW-10
about the execution of document Ex.PW10/A which is a statement
of the complainant, Balwinder Singh recorded by PW-10 and bears
his signatures as also the signatures of PW-7. In this regard, PW-10
has stated that,
"The statement of Balwinder Singh Ex.PW10/A was
recorded by me, the same was read over to him in the
presence of panch witness. Balwinder put his signatures
at point A and panch witness at point B and I signed at
point C. I also recorded pre raid proceedings Ex.PW10/B
after the demonstration and briefing of the complainant
as well as panch witness which were also signed by
complainant at point A, panch witness at point B
respectively."
39. The document Ex.PW10/A is reproduced hereunder:
Bayan Ajane Shri Balwinder Pal Singh S/o Shri Nalha Singh R/o
D-117, Fateh Nagar, Delhi Umar 43 kareeb.
Bayan kiya hain ki mein pata uprokt ka rehne wala hoon
aur mukadama number 1241/98 u/s 302/120B/34 IPC P.S.Janak
PUri, Delhi mein Special Staff ne giraftan kiya tha. 3.3.99 se
Central Jail No.3 Tihar mein bandh hoon. Main lagbhag 7/8 saal
se dil ki bimari (heart patient) se pidit hoon. Mene apna ilaaj
Natonal Heart Institute, Ganga Ram aadi hospital me jail aane
se pehle apna treatment karata raha hoon. Isi bimari is wajah
se mein dinank 3.3.99 jail mein daakhil hone wale din hi jail ke
haspatal meian daakhil ho gaya tha. Mein 15/20 din jail ke
haspatal mein daakhil raha phir discharge ho gaya. Meri
tabiyat jyada kharab ho gayee. Mujhe DDU Hospital ke CCU
ward mein daakhil kiya gaya. Lagbhag 10 din mein waha
daakhil raha uske baad jail aa gaya. DDU hospital ne Pant
Hospital ke liye refer kiya aur mera Pant Hospital se ilaaj chal
raha hain aur DDU hospital se aane ke baad Regular Jail NO. 3
ke hospital mein hoon. Meri 19.6.99 ko Pant Hospital mein
angiography honi thi lekin nahi ho saki. Dr. Ram Chander jo
RMO hain. Dr.Krishna Kumar jinhe K.K. kehte hain mujhe
lagatar pareshan kar rahe hain ki tujhe haspatal se discharge
kara denge warna 10000/- rupaya D.r. Ram Chander ko aur
5000/- rupaya Dr.Krishan Kumar (K.K.) ko dena hoga. Yeh
doctor log mujhse pehle bhi paise lein chuke hain. Meine inki
shikayat jail superintendent ko kar di thi aur meine jail
Superintendent sahib se is babat ki Dr.Ram Chander va Dr. K.K.
10000/- va 5000/- rupye apne apne liye bataur rishwat maang
rahe hain. 1.7.99 aaj ka din dono ko jail ke andar aspatal mein
Ram Chander ko 10000/- rupye va Dr.K.K. ko 5000/- rupye jo
inhone bataur rishwat manga hain maine jail authorities ke
madhyam se 10000/- rupaye jo Dr. Ram Chander ko dene hain
va 5000/- rupaye jo Dr.K.K. ko dene hain ka intazaam kar liya
hain mein rishwat lene va dend ke khilaf hoon. Meri Dr.Ram
Chander va Dr. K.K. @ Krihna Kumar se koi dushmani nahi hain.
Karyawahi ki jaye. Bayaan sun liya.
-sd- -sd- -sd-
Balwinder Pal Singh P.Sudhir Babu Inspector
S/o Nalha Singh LDC/Edu Deptt. ACB
Jail No.3, Tihar Jail Old Sectt.
40. On this point also, there is no cross-examination of this
witness.
41. PW-8 Smt. Paramjit Kaur, wife of the complainant, who is also
an important witness and supports the statement of PW-5
regarding transfer of money brought by her which was handed over
by her to the representative of the Jail Superintendent, who
ultimately gave the money to the Jail Superintendent for handing it
over to the complainant for the purpose of giving the bribe to the
complainant. She has deposed that she met her husband on
29.6.1999, who was admitted in a Jail Hospital. On being informed
that Jail Doctor wanted bribe of Rs.15,000/- otherwise they would
discharge her husband from the jail hospital, she arranged Rs.
15,000/- on 1.7.99 and came in Tihar Jail with the said money and
informed the Jail Superintendent to send some one to whom she
can hand over the aforesaid amount. In her cross-examination by
the learned APP, this witness reiterated that she was asked by her
husband to bring an amount of Rs.15,000/- for making the payment
of bribe money to the appellant and Dr.Krishan Kumar and she paid
that money to Yash Pal Garg, Jail Superintendent, Jail No.3 on
1.7.1999. In her cross-examination by the appellant, she reiterated
that she met her husband in jail hospital on 29.6.1999. No cross-
examination has been done of this witness that she has not
arranged the money or that she had not taken the money for giving
it to Jail Superintendent on 1.7.1999 or that the said money was not
handed over to a nominee of the Jail Superintendent or the Jail
Superintendent on 1.7.1999 before the raid was conducted. The
suggestion given to her that she had not gone to jail on 1.7.1999
had been denied by this witness.
42. The testimony of PW-10 has also been supported by PW-7
P.Sudhir Babu who has stated that on 1.7.99 when he was posted
as LDC in Directorate of Education, Old Secretariat, Delhi he was
called by Inspector Niranjan Singh in Anti Corruption Branch as a
panch witness. Inspector Niranjan Singh told him that a raid was to
be conducted in Central Jail No.3, Tihar where the complainant
would met them who was in judicial custody in some other case.
Inspector Niranjan Singh organized a raiding party and they left for
Tihar Jail in an official vehicle. At about 12.30 PM they reached at
Tihar Central Jail No.3 and after seeking permission they entered in
the jail where Balwinder Singh, who was in custody in some murder
case, met them while sitting in the office of Jail No.3. In his
presence, Balwinder Singh made a statement to Inspector Niranjan
Singh stating that he was suffering from heart ailment and he
remained admitted in DDU hospital and presently he was under
treatment in Pant hospital. He also stated that an angiography was
already fixed in Pant Hospital. He further stated that the doctor of
the jail was demanding money from him. Thereafter, in his
presence, Inspector Niranjan Singh made a demonstration of
Rs.10,000/- which was demanded by the doctor from Balwinder
Singh. There were total twenty currency notes of Rs.500/- each.
All the currency notes were smeared with the phenolphthalein
powder after noting down the distinct number of each note.
Thereafter, the currency notes were touched by him with his right
hand and the same were washed in a fluid and the colour of the
liquid turned into pink. Inspector Niranjan Singh also gave the
instructions to the complainant to keep the aforesaid notes in his
right pocket for giving the same to Dr.Ram Chander. He also
instructed him to overhear the conversation between the accused
and Balwinder Singh. He also gave instructions to Balwinder Singh
to give a signal after handing over the bribe money to the accused
by rubbing his head with his hands. The statement of Balwinder
Singh was recorded by Inspector Niranjan Singh is Mark A bearing
his signatures at Point A. He also recorded the pre-raid
proceedings Mark B, the same also bears his signatures at Point A.
The document which the witness states in which the statement of
Balwinder Singh was recorded has been proved by Inspector
Niranjan Singh as Ex.PW10/A. A perusal of that document goes to
show that the same bears the signatures of Balwinder Singh and
P.Sudhir Babu. Again, on this aspect that the statement was
recorded and the same was also got signed by this witness or that
money was handed over to Inspector Niranjan Singh by Balwinder
Singh and Balwinder Singh then treated those notes with
phenolphthalein powder, there is absolutely no cross-examination
on behalf of the appellant. Rather in his cross-examination also he
has reiterated that the statement of the complainant was recorded
by PW-10 when Rs.10,000/- were given to Inspector Niranjan Singh
for the purpose of preparing the pre-raid proceedings, there is no
suggestion that the document Ex.PW10/A was not prepared in his
presence or it was not bearing his signatures or the signatures of
the complainant. In view of the deposition made by PW-5 Yash Pal
Garg as discussed above and the deposition of PW-8 Paramjit Kaur,
PW-10 Inspector Niranjan Singh and PW-7 P. Sudhir Babu, the
previous demand made by the appellant from the complainant is
proved beyond reasonable doubt.
43. It is a matter of record that about the entry and exit of the
raiding party, there is an endorsement in the jail register which
shows that six persons entered the jail along with Y.S. Negi and
came out on 1.7.1999, which again gives credence to the
prosecution story.
44. As far as the acceptance part is concerned, I am in
agreement with the learned counsel for the appellant that no
evidence has come on record insofar as the acceptance is
concerned inasmuch the complainant is not before us and so far as
PW-7 is concerned, admittedly, he had not entered the office of the
complainant at the time when the raid was conducted. In his
deposition, PW-7 states that,
"As per instructions of the complainant I remained
standing near the window outside the office of Dr.Ram
Chander because the complainant had told me that in
my presence doctor would not accept the bribe money.
Since I was standing outside I could not hear the
conversation between the doctor and the complainant.".
45. However, as far as the recovery of bribe money is concerned,
it has been proved by PW-7 P.Sudhir Babu, the panch witness, PW-
10 Inspector Niranjan Singh, the raid officer as well as by the report
of FSL. Since the explanation furnished by the appellant about the
recovery of money from him which was in the form of the same GC
notes which were given to the complainant for the purpose of
handing over the bribe and which were recovered by the raid
officer from the hand of the appellant and coupled with the fact
that his hand turned pink when dipped in sodium carbonate
solution also corroborates that the bribe was handed over to the
appellant and it was recovered from him. Moreso, when the
defence sought to be pressed in service by the appellant alleging a
conspiracy to falsely implicate him in this case by the Jail
Superintendent and ADG (P) has not even been substantiated
inasmuch as the appellant has neither produced any defence
evidence in this regard, nor has stated anything in his statement
under Section 313 Cr.P.C. as to what was the conspiracy and as to
why such a conspiracy was hatched for falsely implicating him in
this case.
46. In these circumstances, while accepting the statement made
by the appellant that in this case there was no evidence of
acceptance of bribe by the appellant, the judgment of the learned
Special Judge which is based upon a presumption drawn because of
Section 20 of the Prevention of Corruption Act in view of the
demand having been proved by the prosecution and recovery of
the money also proved from the appellant, soon after the raid was
conducted by the raid officer coupled with the report of FSL and for
the reasons stated by the Special Judge in paragraphs 29 and 30 of
the impugned judgment as quoted above, I do not find any reason
to set aside the judgment of the Special Judge convicting the
appellant. Accordingly, it is upheld.
47. However, the sentences awarded to the appellant under
Section 7 as well as under Section 13(2) r/w Section 13(1)(d) of the
Act are reduced to RI for two years while maintaining the fine as
imposed upon the appellant and by conferring the benefit of
Section 428 Cr.P.C. to the appellant. It is made clear that subject
to payment of fine, the appellant would be released from the jail
after he completes the substantive sentence as stated above.
48. With these observations, the appeal stands disposed of. Trial
court record be sent back forthwith.
MOOL CHAND GARG, J.
May 04, 2009
anb/dc
