Braham Pal vs State Nct Of Delhi
2011 Latest Caselaw 1565 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+           Crl. MB No. 410/2011 in CRL. A. No.312/2011

                                                  Date of Decision: 18.03.2011

IN THE MATTER OF :
BRAHAM PAL                                                    ..... Appellant
                          Through: Mr. S.C. Sagar, Advocate

                    versus

STATE NCT OF DELHI                                          ..... Respondent

Through: Mr. M.N. Dudeja, APP for the State

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

1. Whether Reporters of Local papers may No be allowed to see the Judgment?

     2. To be referred to the Reporter or not?                No

     3. Whether the judgment should be                        No
        reported in the Digest?

HIMA KOHLI, J (oral)

1. This application is filed by the appellant under Section 389 of the

Cr.P.C. praying inter alia for suspension of sentence during the pendency of

the accompanying appeal. By the impugned judgment dated 14.02.2011,

the appellant was found guilty and convicted by the learned Special Judge,

Anti Corruption Branch, of the offences under Section 120B IPC read with

Section 7 and 13(i)(d) of the Prevention of Corruption Act (hereinafter

referred to as `the Act') as also under Section 7 of the Act as well as

Section 13(i)(d) read with 13(2) of the Act. As per the order on sentence

dated 17.02.2011, the appellant was awarded a sentence of rigorous

imprisonment for a period of two years and a fine of `4,000/-, in default

whereof, simple imprisonment for a period of six months for the offence

under Section 120B IPC read with Section 7 and 13(i)(d) of the Act and

further sentenced to undergo rigorous imprisonment for a period of two

years and a fine of `4,000/-, in default whereof, simple imprisonment for a

period of six months for the offence under Section 7 of the Act and further

sentenced to undergo rigorous imprisonment for a period of two years and a

fine of `4,000/-, in default whereof, simple imprisonment for a period of six

months for the offence under Section 13(2) of the Act. All sentences were

directed to run concurrently.

2. The brief facts of the case are that the appellant was employed

as a Beldar with the MCD and as per the prosecution, he alongwith his co-

accused, Gulam Haider Zilani, who was employed as a Junior Engineer with

MCD, had asked for a bribe of `50,000/- from the complainant (PW4) for

allowing him to continue to carry out construction of the first floor in his

house, failing which they would have demolished the said construction. After

the complainant expressed his inability to pay the sum, the appellant and his

co-accused reduced their demand to `10,000/-. The complainant lodged a

complaint with the Anti Corruption Branch against both the appellant and the

co-accused, for demanding a bribe from him. On receiving such information,

a trap was laid for the appellant and his co-accused and on 8.03.2007, a

raiding party, including the Raid Officer (PW11), the Panch Witness (PW6)

and other members, apprehended the appellant and his co-accused, Gulam

Haider Zilani, from the first floor of the house, accepting the aforesaid GC

notes from the complainant as bribe money. When the hands and the pocket

of Braham Pal were washed with water, the same turned pink, indicating

that the aforesaid GC notes had been handled by him.

3. Charges were framed against the appellant and his co-accused,

who pleaded not guilty and claimed trial. In the trial, 13 prosecution

witnesses including the complainant (PW4), Raid Officer (PW11), and the

Panch Witness (PW6) were examined. Statements of the appellant and his

co-accused were recorded under Section 313 CrPC, however neither of them

led any defense evidence. On an examination of the evidence which came on

record, the trial court arrived at the conclusion that the prosecution had

placed sufficient evidence on record to hold that the appellant and his co-

accused, both public servants, were guilty of conspiring to accept illegal

gratification, from the complainant, thereby committing offences under 120B

IPC and Section 7, 13(i)(d) read with Section 13(2) of the Act.

4. The learned counsel for the appellant urges the court below

failed to consider the fact that the Panch Witness (PW6), had turned hostile

in his testimony before the Court, hence his testimony should have been

disregarded by the trial court. He further places reliance on the decision of

the Supreme Court in the case of Sudhir Kumar Jain v. State of Delhi

reported as 2008 [1] JCC 564 to submit that where the sentence is below

three years, the High Court should suspend the sentence of the appellant

during the pendency of the appeal. Counsel for the appellant has also urged

before this court that the appellant was on bail during the period of trial and

did not misuse the liberty granted to him at that time. He has also pressed

this court to consider the fact that the appellant is the is the sole bread

earner of his family which consists of aged parents and three small children,

who are entirely dependent on him. He, therefore, submits that there are

sufficient grounds taken in the appeal to entitle the appellant to suspension

of sentence during the pendency of the appeal.

5. The learned APP for the State on the other hand vehemently

opposes the application for grant of suspension of sentence on the ground

that acceptance of illegal gratification by a public servant is a grave offence.

He also urges that a perusal of the impugned judgment reveals that the trial

court has sifted through the evidence on the record and after examining the

same, rightly arrived at the conclusion that the appellant and the co-accused

had accepted bribe from the complainant. He further submits that if an

actual date for hearing the appeal is fixed, then there is no reason to grant

suspension of sentence.

6. This Court has heard the counsels for both the parties and has

perused the impugned judgment of conviction as well as the order on

sentence passed by the learned Special Judge, Anti Corruption Branch. On

the point that the Panch Witness (PW-6) had turned hostile and hence his

testimony ought to have been disregarded, the trial court observed that the

said witness had turned hostile only to the extent that he had stated that

Gulam Haider Zilani, the co-accused was not present on the first floor of the

house where the bribe was being accepted. However, he did not deny the

fact that the appellant herein was present on the first floor of the house and

he had been caught accepting the bribe from the complainant. It was held in

the impugned judgment that even if a witness is declared hostile, his entire

testimony need not be disregarded and that part of his testimony which

stands corroborated by other evidence and witnesses, should be accepted.

In the present case, the testimony of the Panch Witness (PW6) qua the

appellant was corroborated by the testimonies of the complainant (PW-4)

and the Raid Officer (PW-11), as also by the fact that when the appellant's

right hand and trouser pocket were washed with water, they turned pink

clearly indicating that the treated GC-notes were handled by him. In this

background, the trial court concluded that acceptance of the bribe stood

proved against the appellant.

7. The second argument of the counsel for the appellant was that

as per the Supreme Court decision in the case of Sudhir Kumar Jain (supra),

where the sentence is below three years, suspension of sentence should be

granted during the pendency of the appeal. A perusal of the aforesaid

decision shows that the view taken therein was in cases where it was felt

that the appeals against orders of conviction were not being disposed off

expeditiously by the Appellate Court. However, in the present case the

appeal has been fixed for hearing on an actual date, hence the principle laid

down in the aforesaid decision would have no application here.

8. The counsel for the appellant has further urged that this court

should show some leniency towards the appellant as he is the sole bread

earner of his family which is dependent on him. These submissions were

made before the learned Special Judge at the time of sentencing and were

duly considered in the order of sentence.

9. At the stage of suspension of sentence, this court cannot

conduct a roving enquiry into the evidence on record, rather it is required to

see if in its prima facie opinion, there is such patent illegality, arbitrariness

or perversity in the impugned judgment as to warrant grant of suspension of

sentence. In the present case, on a prima facie assessment of the facts and

evidence on record as analyzed in the impugned judgment, this Court does

not find any such patent illegality or perversity, which would warrant

suspension of sentence.

10. The application is therefore dismissed as being devoid of merits.

11. Needless to state that the aforesaid prima facie view is

expressed only for the purpose of disposing the present application and is

not a conclusive view of the court, which shall be arrived at only after

hearing the appeal on merits.

12. The appellant is directed to surrender before the Jail authorities

on or before 21.03.2011.

                                                          (HIMA KOHLI)
MARCH        18, 2011                                        JUDGE
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