Mehkar Singh vs Central Bureau Of Investigation
2011 Latest Caselaw 2731 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            Crl. Appeal No.746/2002


                                           Reserved On:        25.03.2011
%
                                        Date of Decision:      23.05.2011

Mehkar Singh                                           .... APPELLANT
                       Through: Mr.R.N.  Mittal, Sr.  Advocate  with
                                Mr.Manoj Kumar, Advocate

                                    Versus

Central Bureau of Investigation                .... RESPONDENT
               Through: Mr.Narender      Mann,  Special Public
                         Prosecutor for CBI.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


1.    Whether reporters of Local papers be                     YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                   YES

3.    Whether the judgment              should    be           YES
      reported in the Digest?


M.L. MEHTA, J.

*

1. This appeal is directed against the Judgment dated 20.09.2001

and Order of Sentence dated 24.09.2001, whereby, the

appellant/accused was convicted by learned Special Judge under

section 7 and 13(1)(d) of Prevention of Corruption Act, 1988

(hereinafter referred to as „the Act‟) and was sentenced to

undergo rigorous imprisonment for 4 years with a fine of `500/-

on each count. In case of default in payment of fine he was to

undergo rigorous imprisonment for 3 months each.

2. The prosecution case as set up in the complaint(Ex. PW3/A)

against the appellant/ accused in brief is that, Rakesh Kumar, s/o

Jugal Kishore, r/o Bapa Nagar, Karol Bagh, New Delhi (PW-3) was

accused vide FIR No. 304/93 and 435/94 P.S. Nizammuddin

lodged at the instance of his wife. The said cases were pending

before Ms.Sunita Gupta, the then MM New Delhi. The

appellant/accused ASI Mehkar Singh was posted in PS

Nizammuddin and was the Investigation Officer (IO) of FIR No.

304/93, whereas HC Padam Singh was the IO of FIR No.435/94.

The complainant got bail in FIR 304/93, but was allegedly put in

custody by the accused. He had even filed a contempt petition

against accused in that case, but the same was later dismissed

by the court after the compromise was arrived at between the

complainant and his wife.

3. On 20.10.1996 the complainant had gone to attend the case of

FIR 435/93 at Patiala House Court where he met HC Padam Singh

and also the accused. He was told by them to meet two days

before 28.10.96, the next date of hearing in the case when they

would tell him the weaknesses of case against him so that he

could be saved. On 25.10.1996, he went to meet accused at PS

Sriniwas Puri and not finding him there went to PCR Sarai Rohilla,

where he met HC Padam Singh and after some time accused also

reached there. Accused demanded `500 as bribe for each

hearing if he wanted to save himself from the case against him.

The complainant was also assured that the accused would get

the evidence weakened. The accused asked him to come to

Patiala House Courts on 28th October, 1996 and bring `500/-.

Based on this complaint, FIR (PW8/B) was registered. The

necessary arrangements for laying trap were done. Two

independent witnesses, namely, S.P. Gulati (PW-4) and Jai ram

(PW-7) were arranged to attend the trap party. The complainant

arranged `500/- in the currency notes of denomination of `100/-,

the numbers of which were noted down. PW-4 was to act as a

shadow witness, whereas PW-7 was to remain nearby to watch

the proceedings. Pre-trap proceedings were conducted by (PW-

8) the I.O., who was also the Trap Laying Officer (TLO). The

currency notes were given phenolphthalein powder treatment.

With the help of Inspector B.K. Pradhan and PW4, the

demonstration of the manner in which said power will react when

brought in contact with the solution of sodium carbonate was

given to the members of the raiding party including the

complainant and the independent witnesses. All this was

recorded in handing over memo (PW-3/B). The treated notes

were given to the complainant with the instruction to handover

to the accused on specific demand. The trap party left for Patiala

House Courts at about 10am. Both the complainant and the

shadow witness PW4 were sent to the court. Other members of

the party took positions in the area. At about 10:15am, the

complainant contacted the accused whereafter both of them

went into court room No. 2 and PW4 followed them. The

complainant and the accused were seen moving towards the

lawyers chambers. The accused allegedly asked the complainant

to give the money which he had asked for. The money was given

to the accused, who accepted the same with his right hand. At

this, PW4 gave the pre appointed signal to the trap party

whereupon the members of the team rushed to the spot. The

accused was apprehended by his wrists. The complainant as well

as the shadow witness confirmed about accused having received

the tainted money from the complainant with his right hand. The

tainted Government Currency notes were recovered by PW-7 and

he also compared the numbers of notes with the numbers

already noted down in the handing over memo and found the

same tallying. The washes of both the hands of the accused were

taken separately which turned the solution pink. After the

completion of the formalities, the accused was arrested. On

completion of investigation the accused was challaned under

section 7 and 13(1)(d) read with 13(2) of the Act. The accused

denied the charges and pleaded not guilty. At the trial the

prosecution examined as many as 9 witnesses. The accused was

also examined under Section 313 Cr.P.C, wherein he denied all

incriminating evidence. He did not lead any evidence in defense.

4. At the outset, the learned defence counsel submitted that the

accused had arrested the complainant during the existence of

anticipatory bail which led to the filing of a contempt petition

against the accused by the complainant. He submitted that

though the contempt petition was ultimately dismissed by the

High Court and complaint against the complainant was also

dismissed on account of compromise with his wife in the said

case, but the complainant carried out a grudge and animosity

against the accused. The facts that complainant was arrested

during the subsistence of bail and his having filed contempt and

same getting subsequently disposed by High Court, are not in

dispute. These facts alone would not be enough to conclude

outrightly that the complainant was carrying any grudge or he

got planted the present case against the accused. It would be

seen subsequently after discussion of the case in entirety that

this reasoning of the learned counsel is not well founded and is

misconceived. It was submitted by the learned senior counsel

for the accused that the accused has been falsely implicated at

the instance of PW9, S.K. Peshin, in conspiracy with the

complainant. He submitted that the accused was a parokar in

the inquiry relating to death of a person in police lockup against

PW9, S.K. Peshin, and it was at his instance that the present case

was planted against the accused. With regard to the accused

being the parokar in the inquiry against PW9, S.K. Peshin, it may

be stated that though it was admitted by the PW8 to be correct

that he was aware of such an inquiry, but PW8 denied the

suggestion put to him that the present complaint was at the

instance of PW9, S.K. Peshin. Interestingly, nothing of this sort

was put to PW9, S.K. Peshin in his cross-examination. He was

not confronted with any question on this subject relating to

inquiry, nor he was put any suggestion. In fact, he was not

subjected to any cross-examination by the defence.

5. Learned senior counsel for the defence Mr. R.N. Mittal assailed

the impugned Judgment and Order as bad in law and wrong on

facts. Learned Counsel submitted that the learned Trial Court

failed to appreciate that the complainant was carrying grudge

against accused as he was aggrieved of his arrest, during

subsistence of bail by him, and so was not reliable. He

submitted that learned Judge also failed to appreciate that the

prosecution witnesses do not inspire any confidence as their

testimonies are full of doubts. He submitted that the learned

Trial Court failed to appreciate the fact that not only because

PW7 was a stock witness of CBI having appeared already in 4-5

cases, but both PW4 & PW7 were declared hostile and there were

inconsistencies and discrepancies in their statements and other

witnesses. The learned counsel further submitted that no public

witness was associated when the appellant/accused was

apprehended. He also submitted that the complainant PW-3

admitted in his cross-examination that an application was moved

by the Investigation Officer of case i.e. FIR No.435/94 in the court

of learned MM against the complainant for cancellation of his

bail, alleging that the complainant had threatened them to

involve in a false case of bribery

6. As against this, Shri Narendra Mann learned counsel for CBI

submitted that all the essentials, namely, demand, acceptance of

the bribe and recovery of the demanded money have been

proved by the testimonies of by PW-3, PW-5, PW-7 and PW-8. It

was submitted by the learned counsel that all the witnesses

mentioned herein have specifically stated in their examination in

the court that the bribe money was recovered from the right

hand fist of the Appellant/accused. There may be some

contradictions in their examinations, but these are minor and do

not go to the root of the case and minor contradictions are

natural and ought to appear where the witnesses are examined

after a long period of time. Learned Counsel relied on Bharwada

Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC 753

and State vs. Zakaullah, 1998 SCC (Cr.) 456.

7. Before proceeding to embark upon the fact whether the learned

Special Judge erred in appreciating the evidence of the

prosecution, it must be kept in mind that while appreciating the

evidence of a witness one may come across certain

discrepancies in his deposition. These discrepancies are really of

no consequence as long as they don‟t go into the root of and

demolish the veracity of the case. These discrepancies can be

due to normal errors of observation, or loss of memory due to

lapse of time or due to mental disposition such as shock and

horror at the time of the occurrence and the like. It must be

remembered that the evidence given by a witness would very

much depend upon his power of observation and it is possible

that some aspects of an incident may be observed by one

witness while they may not be witnessed by another though both

are present at the scene of occurrence [vide Boya Ganganna

and Anr. v. The State of Andhra Pradesh AIR 1976 SC 1541].

In the case of Bharwarda Bhoginbhai Hirjibhai (supra), it was

held by the Supreme Court that much importance cannot be

given to minor discrepancies which did not go to the root of the

matter and shake the basic version of the witnesses, therefore

cannot be annexed with undue importance. It has been held

time and again by catena of judgments of Apex Court that

discrepancies do not necessarily demolish the testimony. The

proof of guilt can be sustained despite some infirmities

[Narottam Singh v. State, 1978 Crl.L. J. 1612 (SC)]. In the

case of Ramni v. State, 1999 (6) SC 247, it was held that all the

discrepancies are not capable of affecting the credibility of the

witnesses and similarly all the inconsistent statements are not

sufficient to impair the credit of a witness. I would like to advert

to the discrepancies pointed out by the learned defence counsel

a little later.

8. The learned counsel submitted that the complainant is an

interested person because of his carrying grudge and was not

reliable unless his testimony finds corroboration. In this regard,

reliance was placed on the cases Pyare Lal v. State, 149 (2008)

DLT 425; Jaswant Singh v. State of Punjab, AIR 1973 SC 707

and Sunil Kumar Sharma v. State, 139 (2007) DLT 407. In the

case of Pyare Lal (supra), appellant was the investigating officer

in the case registered against the complainant. The court found

that complainant wanted the appellant to hush up the case

against him and his family members and on his refusal to oblige

him, slapped false corruption case against the accused. This

was the case based on its own facts and circumstances which led

the court to record such a finding. In both the cases Jaswant

Singh (supra) and Sunil Kumar Sharma (supra), it was held

that in a bribery cases where complainant is an interested

witness, his evidence must be considered with great caution. I

am conscious of this fact that the testimony of such a witness

would require scrutiny with great caution. While noting so, it is

also relevant to note that the mere fact that complainant was

facing prosecution and was arrested at one point of time despite

bail by the accused, would itself may not be enough to throw

away the prosecution case or to discard the testimony of the

complainant. It is also not that in every case the court would

see independent corroboration of such a witness. It would all

depend upon the facts and circumstances of each case and the

nature of deposition made by such a complainant.

9. With regard to the testimony of complainant the Apex Court in

the case of State of UP v. Dr. G.K. Ghosh, AIR 1984 SC 1453

observed as under:-

"24. ...In the case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the conviction."

10. In the case of Rajender Kumar Sood v. State of Punjab 1983

Crl. LJ 1338 the Division Bench of Punjab and Haryana High Court

while dealing with the proposition whether testimony of

complainant required independent corroboration observed as

under:-

"We are of the opinion that there is no question of the Court insisting upon any such independent corroboration of the complainant in regard to the circumstances of the kind. When a given complainant first visits a public servant for doing or not doing some task for him he does not go to him as a trap witness. He goes there in a natural way for a given task. To require a witness to take a witness with him at that stage would amount to attributing to the complainant a thought and foreknowledge of the fact that the accused would demand bribe."

11. In the case of State vs. Zakaullah (supra), it was held by the

Supreme Court that evidence of the bribe giver cannot be

rejected merely because he is aggrieved by the conduct of the

accused. It was further held that nobody over-heard the demand

made by the accused for bribe or the amount was found in the

left pocket of the accused and not in the right pocket, are

flippant grounds which should never have merited consideration.

12. The learned senior counsel, Mr.Mittal, took me through some of

the facts in support of his submission that there was no

allegation of demand of any money by the accused from the

complainant in the meeting which allegedly took place on 22nd

October, 1996. In this regard, he submitted that in fact there

was no occasion or reason for the accused to have demanded

any money from the complainant inasmuch that the case in

which the complainant appeared before the court on 22nd

October, 1996 was FIR No.435/94 in which accused was not the

Investigating Officer. Since he was not the IO in the said case,

he was not required to appear in the case before the

Metropolitan Magistrate, Sunita Gupta, on this date. He

submitted that in fact the accused had gone to Tis Hazari Courts

on 22nd October, 1996 and from there he came back to the Police

Station and so there was no question of his meeting with the

complainant in the Patiala House Court on 22.10.1996 at 11.30

AM.

13. Learned counsel relied upon the decision of Banarasi Dass v.

State, 2010 Crl.LJ 2419; Gopal Krishan v. State, 18 (1980) DLT

11 (SN) in support of his submissions that the mere recovery of

bribe money from the accused was not sufficient to prove

offence and that no presumption of guilt should be raised under

the Act in the absence of proof of demand and acceptance of

money by the accused as a motive or reward. There is no

dispute with regard to the proposition of law as laid down in

these judgments that mere recovery of money, divorced from

the circumstances under which it is paid, is not sufficient to

convict the accused when the substantial evidence in the case is

not reliable. Reliance in this regard is placed on the decision of

the Hon‟ble Supreme Court in the case of M. Narsinga Rao v.

State of A.P., 2001 (1) SCC 691, which has been followed in

catena of judgments. However, in the present case, it would be

seen that there is ample evidence on record to corroborate the

statement of the complainant on the essentials of demand,

acceptance and recovery.

14. It is a fact that the accused was not the I.O. of the case FIR

435/94 and so was not required to be present in the Patiala

House Courts on 22.10.1996. However, it stands proved from

the statement of PW-5, Additional S.H.O., Sriniwas Puri, that the

accused went out of the Police Station to attend the date of

hearing at Tis Hazari along with SI Bansidhar. It is also proved

from the statements of PW3 and PW6 that PW3 complainant

attended the hearing of case FIR 435/94 at Patiala House court

on 22.10.1996 and this case was adjourned to 28.10.1996. PW3

also said that he had met the accused and HC Padam Singh on

this date in the Patiala House Courts and was asked by them to

meet two days before the next date of hearing, i.e., 28.10.1996.

As per DD (Ex.PW5/B) the accused and SI Bansidhar left the

police station at about 8.15 AM for Tis Hazari Courts and Patiala

House Courts respectively. DD (PW5/C) shows the return of

accused back to the police station at 3.31 PM. The fact that he

was not to appear in the Patiala House Courts on 22.10.1996 but

was to go to Tis Hazari Courts would not be sufficient enough to

record that he in fact did not go to Patiala House Court on that

date. Notice can be taken of the fact that Patiala House Court is

on the way to Tis Hazari Courts and while going to Tis Hazari

Courts one can easily stop at Patiala House Court for onward

move to Tis Hazari. SI Bansidhar and the record of the case of

Tis Hazari court where the accused was supposed to appear on

22nd October, 1996, could have thrown some light, but, however,

the accused did not choose to make any effort to lead evidence

in this regard.

15. Learned defence counsel also submitted that the visit of the PW3

complainant to PCR Sarai Rohilla was doubtful inasmuch firstly

because there was no occasion for him to visit PCR Sarai Rohilla

and secondly, it was not possible to reach Sarai Rohilla from

Police Station Sriniwas Puri. In this regard, PW3 stated that on

25.10.1996, he had gone to PS Sriniwas Puri to meet the

accused, but as he did not find him there, he within 15 minutes

reached PCR Sarai Rohilla. The learned Special Judge recorded in

this regard that the complainant seems to be making general

statement about time taken in the journey which involved the

distance of about 20 kilometers. It appears that the complainant

made such a casual statement and tried to exaggerate in this

regard. But, that may not be enough to conclude that he did not

visit PCR Sarai Rohilla. The complainant was very categorical in

his visit to PCR Sarai Rohilla. While observing that one may not

reach in 15 minutes from PS Sriniwas Puri to PCR Sarai Rohilla as

claimed by complainant, it can also be observed that during

noon period the traffic is comparatively less and such distance

could be covered by two wheeler in about 20-30 minutes.

16. At PCR Sarai Rohilla, complainant remained for about 1½ hours

and met the accused and HC Padam Singh. If it was not so, why

would he introduce this as a story. He stated that the money

was demanded in the presence of HC Padam Singh. In such fact

situation, some light could have been thrown on this subject by

HC Padam Singh, who has not been chosen to be examined by

the accused, though, at one point of time, he so desired to

examine him as a witness. In fact, this part of statement of the

complainant that the conversation with Mehkar Singh took place

in presence of HC Padam Singh has not been assailed. The

complainant categorically stated and maintained that the

accused demanded `500 for each date of hearing to ensure that

the evidence gets weakened.

17. The testimony of PW3 on demand by the accused become

reliable when we analyse the entire evidence including the

conduct of the accused to be discussed hereafter. PW3

categorically stated and maintained that on 25.10.1996 at PS

Sarai Rohilla, Mehkar Singh during conversation told him that he

will tell about the loopholes and for that he would have to pay

`500/- for each date of hearing and that he would also ensure

that the evidence in the court gets weakened. Thereafter, he

directed him to meet him in Patiala House Courts on 28.10.1996

so that he can introduce him to the witnesses. He also directed

him to bring the money of `500/-. On 28.10.1996, when he

reached the court of Ms.Sunita Gupta, MM, the accused Mehkar

Singh came there. The testimony of the witness in this regard is

worth noting and is reproduced as under:-

"When we reached at the door of the court of Smt.Sunita Gupta, M.M. accused Mehkar Singh came there, and following conversation took place between us:-

Mehkar Singh:- HA BHAI RAKESH, PAISE LAYA HAIN.

               Myself:-         HA JI JO AAPNE BATAYE THE UTNE PAISE
                                LAYA HU.

Thereafter accused went into the court room and signaled me to accompany him. He took me to the seat of the naib court, where police files are kept.

We both sat on the bench and accused read the police file of my case sometime. SP Gulati also came inside the court and sat at a distance of 4-5 paces from us. Shri BK Pradhan also came into the court and sat at some distance. After reading the file for sometime, accused said "CHAL AA BAHAR CHALE". Thereafter, we both came out of the court room. SP Gulati also followed us at some distance. While walking accused said "MAIN TUMHE CASE KI KHAMIYO KE BARE MEIN BATAOONGA, JO PAISE LAYA HAIN, MUJHE DE". On this I took out aforesaid treated GC notes of Rs.500/- from my pocket and passed on to the accused. Accused accepted said money in his right hand."

18. PW4 S.P. Gulati though turned hostile, also deposed to the effect

that though he could not hear the conversation which took place

with the accused in front of the court room, but he heard the

accused asking complainant if he had brought the money and

the complainant confirming that he had brought `500/- as

desired. He corroborated the complainant that the accused took

him in the court room where the accused took the police file from

Naib Court and started reading it. He also testified that he (PW4)

had also gone into the court room and sat at a distance of 4-5

feets and after sometime accused asked the complainant to

come out and further that he followed the complainant and the

accused. He said that while walking accused asked for the

money and thereupon the complainant took out the tainted

money and gave to him, who accepted the same in his right

hand and at this stage he gave pre-determined signal whereupon

CBI officials came and apprehended the accused. He further

stated that when the accused was confronted by Inspector Ved

Prakash, the accused threw the tainted money on the floor which

was later recovered by PW-7 Jai Ram from the fist of the accused.

He also stated that he along with PW7 Jai Ram compared the

tainted money with the numbers of notes already noted in the

handing over memo and found the numbers tallying.

19. Both PW-4 and PW-7 were also cross-examined by the learned

prosecutor. They both have supported the case of the

prosecution in entirety and have identified the accused present

in the court. They are also witnesses to the handing over memo

(Ex.PW3/B) detailing pre-raid proceedings. PW8 also

corroborated the witnesses of recovery stating that he also

followed the complainant, accused and others and noticed that

the complainant took out the tainted money from the pocket of

his shirt and gave to accused Mehkar Singh who accepted the

same in his right fist. He also stated that he challenged the

accused after he had taken the bribe money from the

complainant to which the accused kept mum and thereafter he

directed PW7 Jai Ram to recover the money from his right fist

and that after counting, the numbers of the tainted money were

compared with the numbers mentioned in the handing over

memo. This witness denied the suggestion that the accused

neither demanded nor accepted the money nor did he see the

accused taking money from the complainant. When the

accused was apprehended, he remained mum and became

nervous. The conduct of the accused is also one of the relevant

and admissible piece of evidence, the aid of which is available in

corroboration of the testimony of a witness. In fact remaining

mum or getting perplexed or throwing the money when caught

are significant factors pointing towards the guilt of the accused.

In the normal circumstances, no one behaves in such a manner.

In the case of Rao Shiv Bahadur v. State of Vindhya

Pradesh, AIR 1954 SC 322 and State of Madras v. A.

Vidyanatha Iyer, AIR 1958 SC 61, the Apex Court relied on the

evidence relating to the conduct of the accused when confronted

by the police officials with the allegation that he had received

bribe. In the case of Rao Shiv Bahadur (supra) the evidence

relating to conduct on which reliance was placed was to the

effect that the accused was confused and could not furnish any

explanation when questioned by the officer. Likewise, in the

case of Vidyanatha (supra) also evidence to the effect that the

accused was seen trembling and that he silently produced the

notes was acted upon for recording conviction.

20. In the present case, there is ample evidence on record to prove

the factum of demand, acceptance and recovery of the bribe

money from the accused. In fact PW3, PW4, PW7 and PW8 have

corroborated each other with regard to the pre-raid and post-raid

proceedings and they have stood lengthy cross-examinations by

the defence. Nothing could be elicited in their cross-

examinations to doubt their testimonies. They have deposed on

the lines of the prosecution case as narrated in the handing over

memo PW3/B.

21. Having gone through the testimony of PW3 cautiously, I could

not see anything coming on the record to substantiate the plea

of the accused that it was because of any grievance of the

complainant that the present complaint was made by him

against the accused. Here it is also noted that a plea was also

taken by the learned counsel that an application was also filed by

HC Hukum Singh, IO in FIR No.435/94 before the MM against the

complainant alleging threats to involve them in a false case. In

this regard also, nothing could be brought on record to

substantiate this plea. During the course of arguments, when it

was put to the learned defence counsel as to the time of making

of such an application to see as to whether it was before or after

the trap, the learned defence counsel expressed ignorance and

stated that in any case the timing of such an application would

have no relevance. I am afraid, the timing of making such an

application before the MM was all the more relevant and it

appears that the application came to be filed by HC Hukum Singh

after the trap of the accused. If it was before, the same could

have been so conveniently brought on record by the accused.

The same having not been done, the logical inference would be

that it was got filed after the trap to create defence of the trap

and recovery from accused.

22. Now coming back to the discrepancies as pointed out by the

learned counsel that PW3 stated that money was passed on to

the accused at a distance of about 20-25 yards and PW4 Mr.S.P.

Gulati heard the conversation and saw the whole incident,

whereas Mr.Gulati stated that he could not hear the

conversation. In his cross-examination, he also stated that the

accused threw the money on the floor. It is true that there is

some variance in the testimony of PW4 as pointed out by learned

counsel, but it is noted that this witnesses immediately after his

so stating, stated that PW7 Jai Ram recovered money from the

right fist of the accused and that they both [he and Jai Ram

(PW7)] compared the numbers of the tainted money with the

numbers noted on the handing over memo and found the same

to be correct. So this would hardly be discrepancy of any value.

23. It was next pointed out by the learned counsel that as per PW4,

accused was arrested in the verandah of the court at his signal,

whereas PW8 (TLO) stated about the apprehension of the

accused at the distance of 75 yards from the court room and

PW3 stated about 25 yards. In this regard, he also submitted

that as per the site plan from the position of some members of

the raiding party team they could not have seen and heard

anything between the complainant and the accused except PW4.

I have considered the submissions in this regard very seriously

and do not find any of these to be amounting to a glaring

discrepancy or infirmity. This was natural course of observation

of different persons of different situations in different ways and

particularly when they depose in the court after lapse of long

period of three to five years.

24. It was submitted by the learned counsel that PW7 being a stock

witness of CBI and also hostile was not reliable. I have noted

above that the testimony of PW7 is trustworthy and reliable

though he was not able to identify the accused and was allowed

to be cross-examined by the prosecution. He, however, in his

further statement identified the accused as appearing to be the

same person who was arrested at the spot for taking bribe. May

be that he had appeared as a witness in 4/5 other cases

investigated by the CBI, but that alone would not be enough to

discard him. It is not clear as to in how many years he appeared

in 4/5 earlier cases. Having cautiously scrutinized his evidence, I

do not see any reason to discard him on this ground alone.

25. It was lastly submitted by the learned counsel that no

independent witness was joined by CBI whereas there were

several available in the office of the accused and also in the hall

where the appellant was allegedly caught receiving the money.

Learned counsel in this regard relied upon the judgments of Som

Parkash v. State of Punjab, 1992 CRl. L.J. 490; Ved Prakash

v. State of H.P., II (1998) CCR 317; G.V. Nanjundiah v. State

(Delhi Administration), 1988 Crl.L.J. 152; Gulam Mahmood

A. Malek v. The State of Gujarat, AIR 1982 SC 1558 and

Satbir Singh v. State of Haryana, 2000 (1) C.C. Cases HC

195.

26. There is no dispute with regard to the proposition regarding

desirability of association of independent witnesses by the police

so as to lend more credence and authenticity to the case, but

there is also no dispute that non-association of the independent

witnesses per se for any reason whatsoever was in itself not

enough to discard the prosecution witnesses or throw away the

case as a whole. In the present case, CBI associated two

independent witnesses on the written requisition made in this

regard. Since the prosecution/CBI already had two independent

witnesses, who had been informed and apprised about the

technicalities involved in the procedure during the trap

proceedings, it was not necessary for the IO to have joined other

public witnesses at the time of apprehension.

27. In the case of Som Prakash (supra), there was no independent

witnesses associated and so that case was entirely

distinguishable from the present case. Similarly, the case of Ved

Prakash (supra) is also distinguishable. In that case the

independent witness who was associated was the one who was

brought by the complainant and was already in contact with him

and therefore, was not regarded as independent. In the case of

Gulam Mahmood A. Malek (supra), the testimony of the

complainant was not reliable inasmuch as he himself was an

accused in four cases and though the independent witness was

available, none was joined. The case of G.V. Nanjudiah (supra)

was also on its peculiar facts where the testimony of the

complainant contractor was also found to be not trustworthy and

there was no evidence establishing the factum of acceptance of

bribe. Similarly, in the case of Satbir Singh (supra) also there

was no proof of initial demand of illegal gratification beyond

reasonable shadow of doubt and there was no other evidence to

corroborate the statement of the complainant, that the failure to

join the independent witnesses was held to be an infirmity in the

prosecution case.

28. Learned counsel also challenged the validity of the sanction of

the prosecution of the accused stating that there was no valid

sanction by the competent authority. In this regard, it is seen

that the sanction for the prosecution of the accused was

accorded by PW2, Dharmender Kumar, DCP, vide order

Ex.PW2/A. He affirmed on oath that he had perused the relevant

documents including the statement of witnesses etc. before

according the sanction. Though he did not remember some of

the details of the prosecution file, but he denied that the

sanction was accorded mechanically without going through the

record. The mere fact that he did not remember some of the

details could not create any doubt. The sanction order speaks

for itself and shows that the requisite material had been gone

into before according sanction. There is no reason to disagree

with the finding of the learned Special Judge in this regard.

29. Section 20 of the Act provides that where at the trial it is proved

that an accused has accepted or obtained or agreed to accept or

attempted to obtain any gratification (other than legal

remuneration), it shall be presumed unless the contrary is

proved, that he accepted or obtained or agreed to accept or

attempted to obtain such gratification as a motive or reward as

mentioned in Section 7 or, as the case may be, without

consideration or for a consideration which he knows to be

inadequate. The requirement of this Section is only that it must

be proved that the accused has accepted or obtained or agreed

to accept or attempted to obtain gratification. It may be proved

by direct evidence as in the present case it has been proved

from the direct evidence of testimonies of PW-3 and PW-4 that

the gratification was accepted as a motive or reward for helping

the complainant in the criminal case pending against him and

other co-accused persons. In the case of Madhukar

Bhaskarrao Joshi v. State of Maharashtra (2000) 8 SCC p.

571, the Apex Court held as under:-

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

the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."

30. In the case of C.M. Girish Babu v. CBI, Cochin, High Court of

Kerala (2009) 3 SCC 779, it was held as under:-

"21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification."

31. Though, the burden of proof on the accused to rebut the

presumption under Section 20 is not akin to that of the burden

placed on the prosecution to prove the case beyond reasonable

doubt, but the same, in any case, was required to be discharged

at least by preponderance of probability. The accused did not

lead any evidence in defence and also could not elicit anything

from the cross-examination of prosecution witnesses and thus

could not rebut the presumption of guilt under Section 7 against

him. Insofar as Section 13(1)(d) is concerned, it stand proved

that accused demanded and accepted bribe money for doing of

favour in the exercise of his official function.

32. From the above discussion, the case of the prosecution stands

proved beyond any reasonable doubt. Nothing could be pointed

out by the defence to interfere or find fault with the impugned

judgment or the order of the Special Judge. I have noted at

different places in the preceding discussion that in certain areas

some light on the subject as discussed would have been thrown

by leading some evidence by the accused, but nothing of the sort

was even tried to be done by him. This would lead to draw an

inference that there was nothing in store in defence of the

accused to cause any dent in the prosecution case. There was

no denial of the fact that the corruption by the public servants

and particularly the law enforcers like the accused is an alarming

menace to the society and which is spreading its tentacles in all

walks of life. With regard to the quantum of sentence, nothing

specific was pointed out by the learned defence counsel except

for praying for leniency in view of the protracted pendency of the

case. This was no ground to mitigate the gravity of the offence

as per the catena of judgments of the Hon‟ble Supreme Court

and reference here can be made only to the case of State of

A.P. v. V. Vasudeva Rao, (2004) 9 SCC 319.

33. In the given factual matrix, I am not persuaded to impose the

minimum sentence as prayed by the learned defence counsel. In

the overall circumstances, while maintaining the conviction as

awarded by the learned Special Judge, I am of the view that ends

of justice would be met by sentencing the accused to two years

of rigorous imprisonment on each count. Consequently, the

order of sentence stands modified in the sense that the accused

shall stand sentenced for two years rigorous imprisonment each

under Section 7 and also under Section 13(2). The rest of the

order shall remain unchanged. Both sentences shall run

concurrently. The period of imprisonment already undergone

shall be set off. The accused shall be taken into custody to

undergo the imprisonment as awarded. The appeal stands

dismissed.

                                                   M.L.MEHTA
MAY 23, 2011                                        (JUDGE)
„Dev‟