Udai Singh vs State
2011 Latest Caselaw 1192 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                     Judgment delivered on: February 28, 2011

+      CRIMINAL APPEAL NO.224/2011 & CRL.M.(B) 283/2011

       UDAI SINGH                                      ....APPELLANT
                Through:        Mr. K.B. Andley, Sr. Advocate with
                                Mr. M.L. Yadav, Advocate and Mr. Mohd.
                                Shamik, Advocate

                          Versus

       STATE                                    .....RESPONDENT

Through: Ms. Fizani Husain, APP

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. This appeal is directed against the impugned judgment dated 31st

January, 2011 in corruption case CC No.22/2004, FIR No.55/2001 P.S.

Anti Corruption Branch, Delhi and the consequent order on sentence

dated 2nd February, 2011 whereby the appellant Udai Singh, Head

Constable, Delhi Police has been convicted for the offences punishable

under sections 7 & 13(2) read with Section 13(1)(d) of the Prevention

of Corruption Act, 1988 (for short P.C. Act) and sentenced to undergo

R.I. for a period of one year and 6 months, besides fine of `4,000/-, in

default to undergo imprisonment for a period of six months for the

offence under Section 13(2) read with Section 13(1)(d) of the P.C. Act.

2. Briefly stated, case of the prosecution is that on 10th October,

2001 complainant Mustafa (PW-4) visited Anti-Corruption Branch, Delhi

and complained that S.I. Praveen Kumar of Police Post Pitam Pura had

demanded bribe of `5,000/- from him to close the case pending against

his nephew Mohd. Shakir. He also stated that he could arrange only

`3,000/- and produced 6 GC notes of `500/- denomination each.

3. The complaint was reduced into writing and it was decided to

organise a trap. Pre-raid proceedings were completed. One Rakesh

Kumar (PW-7), LDC, Social Welfare Department was joined as a panch

witness to the raid party. Thereafter, raid party reached at Police Post

Pitam Pura. On that day, S.I. Praveen Kumar was not present and the

complainant and the panch witness met the appellant in the office

room at the police post. The appellant told the panch witness to go

out of the office room and asked the complainant to remain there.

Sometime later, the appellant told the complainant to come alone on

the next day, i.e. 11th October, 2001 at 9.00 a.m.

4. On 11th October, 2001, the trap was again organized, pre-raid

proceedings were conducted, a micro tape recorder with an ear phone

loaded with a blank audio cassette was given to the panch witness and

the complainant was given a micro phone. Panch witness was directed

to switch on the tape recorder and also hear the conversation between

the complainant and the appellant through ear phone.

5. The raid party reached at the police post at around 9.05 a.m.

The complainant was asked to go and contact the appellant and other

members of the raiding party took up strategic positions outside the

police post. The complainant contacted the raid officer at around

11.00 a.m. and told that he had gone to the office of the appellant on 3

or 4 occasions but the appellant had told him to wait, saying that he

would do the needful after the arrival of the girl who had lodged

complaint against Shakir and her mother. At around 12 noon, PW-3

Shabana and PW-1 Shabnam reached at the police post. They talked

with the complainant and thereafter they all went into the office room

and came out within 5 minutes. At about 2.00 p.m., those ladies and

the complainant again went into the room of the appellant and a signal

was given to the panch witness to switch on the recording system. At

2.30 p.m., panch witness told the raid officer that he had heard

through microphone that someone was saying "kitne hain" and

thereafter he heard a voice saying "asli hain ya nakli" from which it

appeared that some monetary transaction had taken place. Thereafter

the members of raiding party entered the office room of CAW Cell,

Police Post Pitam Pura. In the said room, they found two ladies,

complainant Mustafa and two other persons, namely the appellant and

PW-6 Head Constable Ram Niwas. The complainant, when asked, told

the Investigating Officer that he had given `3,000/- (tainted money) to

the appellant, out of which the appellant returned `2,000/- to him,

saying that he should give that money to the girl and her mother.

Thereafter, he took out 2 GC notes of `100/- denomination each and

gave them to the complainant, saying that he should not tell anyone

about the transaction and kept 2 tainted GC notes of `500/-

denomination in the pocket of his shirt. Thereafter, the appellant

obtained his signatures as also the signatures of those ladies on some

documents and told him to pass on `2,000/- to Noor Jahan, PW-1 which

he gave to her. Noor Jahan then remarked "asli hain ya nakli" and

passed on said money to PW-6 Ram Niwas, who after checking those

currency notes said that GC notes were genuine and gave the money

back to Noor Jahan. Complainant also produced `200/- given to him by

the appellant.

6. It is further the case of the prosecution that the appellant was

searched but remaining `1,000/- were not recovered from his

possession. His drawer etc. was searched and even the files lying in

the room were searched but the money could not be recovered. It is

further the case of prosecution that after keeping `1,000/- in his

pocket, the appellant had gone outside the room for some time and

perhaps he had concealed those GC notes somewhere outside the

room.

7. Thereafter, respective hand washes of the appellant and his shirt

pocket wash were taken in sodium carbonate solution, which turned

pink and those washes were transferred into clean bottles and sealed

with the seal of `sk'. Similarly, hand washes of Head Constable Ram

Niwas were taken and those also turned pink which were also

transferred into clean bottles and sealed with the seal of `sk'. Noor

Jahan, when asked, told that Head Constable Udai Singh had got their

matter settled and pursuant to the settlement, she had received

`2,000/- from the complainant. She produced those four currency

notes and the numbers of those GC notes were tallied with the

numbers of GC notes recorded in pre-raid proceedings. Hand washes

of Noor Jahan were also taken which also turned pink and were seized.

8. It is further the case of prosecution that the transcript of the

recording and audio cassette could not be prepared as it was inaudible.

9. On completion of the investigation proceedings, the appellant

was challaned and sent for trial. Learned Special Judge charged the

appellant for the offences punishable under Section 7 and 13(2) of the

P.C. Act. The appellant pleaded not guilty to the charge and claimed to

be tried.

10. In order to bring home the guilt of the appellant, prosecution has

examined das many as 15 witnesses. Out of them, PW1 Noor Jahan,

PW3 Shabana, PW4 Mustafa and PW6 Ram Niwas are claimed to be eye

witnesses and PW7 Rakesh is the panch witness, who according to the

prosecution remained outside the office room and heard the

conversation through the earphone provided to him.

11. The appellant, when examined under Section 313 Cr.P.C., denied

the prosecution evidence in totality. He claimed that he neither

demanded nor accepted illegal gratification from the complainant

Mustafa. Appellant explained that he was looking into the complaint of

PW3 Shabana pending with CAW Cell police post Pitam Pura. Shabana

and the complainant Mustafa, who is the uncle of Shakir Ahmed had

entered into a settlement and pursuant to that Mustafa had paid

`2,000/- to Shabana which money was recovered from Noor Jahan,

mother of Shabana and `2,000/- which was recovered from Noor Jahan,

mother of Shabana. He also stated that he remained in his office room

throughout till the arrival of the raiding party.

12. Learned Special Judge, on consideration of the evidence on

record, found the appellant guilty of the offences punishable under

Section 7 and 13(2) read with Section 13(1)(d) of P.C. Act, 1988. Thus,

he convicted the appellant on aforesaid charges and sentenced him

accordingly.

13. Learned Shri K.B. Andley, Sr. Advocate appearing for the

appellant has submitted that the conviction of the appellant is based

upon wrong appreciation of the facts. He contended that the trial court

failed to appreciate that the original complaint Ex.PW4/A was against SI

Praveen Kumar and not against the appellant. Therefore, there was no

occasion for the trap officer to organise a raid against the appellant.

Learned Sr. Counsel further contended that as per the case of the

prosecution, `3,000/- i.e. 6 GC notes of `500/- denomination each were

used for trap. According to the testimony of PW4 Mustafa, at the time

of trap, he gave those `3,000/- to the appellant, who counted the

money and kept `1,000/- in the pocket of his shirt and gave him

`2,000/- to be passed on to Noor Jahan and Shababa. Mustafa also

stated that the appellant thereafter gave him `200/- from his pocket

and told him not to tell anybody about the aforesaid transaction.

Learned Sr. Counsel argued that if aforesaid version is true, then there

should have been recovery of `3,000/- at the spot i.e., `2,000/- from

Noor Jahan and `1,000/- from the appellant. However, it is admitted

case of the prosecution that `1,000/- was not recovered either from the

possession of the appellant or from his office drawers or from any of

the files lying in the office. From this, learned Sr. Counsel for the

appellant has urged this Court to infer that complainant Mustafa is not

telling the truth and it is not safe to rely upon his version to conclude

that the appellant accepted the tainted money. Learned Sr. Counsel

for the appellant further submitted that it is admitted case of the

prosecution that before the money was passed on to Noor Jahan, the

appellant had handled the same. Therefore, there is nothing surprising

in the hand wash of the appellant turning pink and this cannot be taken

as an incriminating circumstance against the appellant to presume that

he had accepted illegal gratification of `1,000/- from the complainant.

Learned Sr. Counsel for the appellant has thus summed up that in the

instant case, the prosecution has failed to establish the initial demand

or subsequent demand or acceptance of illegal gratification by the

appellant. Even the recovery of tainted money is not established, as

such, the appellant is entitled to acquittal.

14. Learned Ms. Fizani Husain, APP, on the other hand, has argued in

support of the impugned judgment. She has submitted that it has

come in evidence that on 10.10.2001, when the complainant visited

the office of the appellant, the appellant became uncomfortable on

seeing PW7 Rakesh Kumar along with him and he told the complainant

to send PW7 Rakesh Kumar back home. Learned APP submitted that

from the aforesaid conduct of the appellant, is can be inferred that he

is guilty of receiving the tainted money. She further argued that as per

the evidence, the shirt pocket wash of the appellant also turned pink,

which is indicative of the fact that the appellant had accepted the

tainted money and kept it in his shirt's pocket. As regards non

recovery of `1,000/-, learned APP submitted that it has come in

evidence of the complainant that during the raid proceedings, after

taking `3,000/- from him, the appellant had gone outside his office

room for some time. Therefore, it is possible that the appellant

concealed `1,000/- somewhere outside his room and this explains non-

recovery of the tainted money from the possession of the appellant.

Thus, learned APP has urged for dismissal of the appeal.

15. I have considered the rival contentions and gone through the

ocular and documentary evidence on record. On perusal of the

complaint Ex.PW4/A, it is apparent that the complaint was lodged

against SI Praveen Kumar and no role has been ascribed to the

appellant Udai Singh so far as initial demand is concerned. Now the

question which needs determination is whether or not on the day of

raid, i.e. 11.10.2001, the appellant demanded and accepted `1,000/-

from the complainant.

16. It is significant to note that as per the case of the prosecution,

during pre-raid proceedings, arrangement was made for recording the

conversation between the complainant Mustafa and the appellant

which might take place during raid proceedings. PW7 Rakesh Kumar

was given the tape-recorder loaded with empty cassette and he was

directed to switch on the same at the appropriate time. He was also

given an earphone for hearing the conversation which might take place

in the room of the appellant and the complainant was made to carry a

concealed microphone. On perusal of testimony of PW5 Inspector

Rajender Singh, it is obvious that during investigation, he called the

complainant and the panch witnesses and in their presence he played

the aforesaid audio cassette, but the cassette was inaudible. Thus, it

is obvious that no incriminating evidence was recorded in the tape-

recorder. So, I am left with the ocular testimony of the complainant

Mustafa, PW1 Noor Jahan, PW3 Shabana and PW6 Head Constable Ram

Niwas. PW1 Noor Jahan and PW3 Shabanna have not supported the

prosecution story regarding `1,000/- having been retained by the

appellant. They were declared hostile by learned APP, but nothing

incriminating came out in their cross-examination. Similarly, PW6 Head

Constable Ram Niwas has also not supported the prosecution story so

far as retaining of ` 1,000/- out of the tainted money by the appellant is

concerned. Thus, I am left with the sole testimony of complainant

Mustafa.

17. Complainant Mustafa has testified that on 11.10.2001 after the

pre-raid proceedings, the raiding party reached at police post Pitam

Pura. He was directed to go into the office of the appellant and start

conversation with him. He was also directed that in the event of

demand, he should pay the tainted money to the appellant. PW4

Mustafa has stated that the appellant had demanded ` 3,000/- tainted

money from him and after counting, he returned `2,000/- to him to be

given to Shabana and Noor Jahan and kept `1,000/- in his pocket. The

appellant also gave him `200/- and instructed that he should not

disclose about the aforesaid transaction to anyone. Thereafter, Noor

Jahan and Shabana came inside his room and he handed over `2000/-

to them. He further stated that in the meantime, members of raiding

party came and the appellant was challaned by the officer. It is

admitted case of the prosecution that `2,000/- out of the tainted

money was recovered from Noor Jahan but remaining `1,000/-, which

as per complainant Mustafa was kept by the appellant in his shirt

pocket, was not recovered. The Investigating Officer Inspector Sudesh

Kumari (PW3) has testified that she searched the appellant as well as

his room, but remaining 2 GC notes of `500/- each could not be

recovered. She also testified that she even searched PW6 Ram Niwas

who was sitting in the room, but money was not found in his

possession. From this, it is evident that tainted money `1,000/-, which

according to the prosecution were wrongfully obtained by the appellant

from the complainant, were not recovered either from the possession

of the appellant or from his room. It is not understandable when the

tainted money was not found in possession of the appellant as well as

Head Constable Ram Niwas, why the Investigating Officer did not

search the complainant Mustafa. A possibility cannot be ruled out that

complainant Mustafa might have retained `1,000/- with him and paid

only `2,000/- to Noor Jahan and Shabana. Thus, under the

circumstances, I do not find it safe to rely upon the sole testimony of

PW4 Mustafa regarding acceptance of illegal gratification by the

appellant.

18. Learned APP also contended that as per the evidence on record,

the shirt pocket wash of the appellant turned pink, but there is no

explanation from the appellant as to how the phenolphthalein powder

came into the pocket of his shirt if he had not kept the tainted `1,000/-

in his pocket. On the first blush, this argument appears to be

attractive. However, merely on the evidence of shirt pocket wash

turning pink, the appellant cannot be held responsible for demand of

illegal gratification, particularly when the tainted `1,000/- allegedly

kept by the appellant in his pocket were not recovered and also the

Investigating Officer has not cared to search the complainant Mustafa

to find out if he had not retained said money with himself with a view

to falsely implicate the appellant.

19. In view of the above, I am of the considered opinion that in

absence of recovery of `1,000/- from the possession of the appellant or

his room, it is not safe to find the appellant guilty of charge under

Section 7 and 13(2) read with Section 13(1)(d) of P.C. Act. Thus, I find

it difficult to sustain the impugned judgment of conviction and the

order on sentence.

20. The appeal is, therefore, accepted and the appellant is acquitted

of charges under Section 7 and 13(2) read with Section 13(1)(d) of P.C.

Act, giving him benefit of doubt.

21. The fine, if any, deposited by the appellant be returned to him.

(AJIT BHARIHOKE) JUDGE FEBRUARY 28, 2011 ks/pst