State (Govt. Of Nct Of Delhi) vs Girdhari Lal Verma
2011 Latest Caselaw 2874 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Crl. Appeal No. 90/1999

%                                          Reserved on: 3rd February, 2011

                                           Decided on: 30th May, 2011

STATE (GOVT. OF NCT OF DELHI)                      ..... Appellant
                   Through: Mr. Manoj Ohri, APP for the State.

                       versus

GIRDHARI LAL VERMA                                            ..... Respondent
                 Through:               Mr. K.B. Andley, Sr. Advocate with
                                        Mr. M. Shamikh, Advocate
Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may        Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?               Yes

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

MUKTA GUPTA, J.

1. This is an appeal against acquittal filed by the State wherein the

Respondent after a trial by the learned Special Judge was acquitted for offence

punishable under Section 161 IPC and Section 5(1) (d) read with Section 5(2)

of the Prevention of Corruption Act, 1947(in short 'PC Act') in case FIR No.

33/1987 at P.S. Anti Corruption Branch, Delhi.

2. Briefly the prosecution case is that the Complainant PW3, Jaipal Singh

the Vice President of Yuva Janta Morcha on 4th December, 1987 lodged a

complaint Ex. PW3/A with the Anti Corruption Branch that during the

checking of votes from door-to-door by the supervisors of the election office,

one Girdhari Lal Verma (Respondent herein) who was the supervisor of the

Delhi Cantt area came to his office and told him that he had deleted 800 votes

of Naraina area. The Respondent also dismissed the objections filed by the

Complainant in respect of jhuggis situated in Kirby Place, Subroto Park and

Dhaula Kuan. When PW3 wanted the electoral rolls to be corrected, the

Respondent demanded `400/- for every polling booth. The Respondent also

told the Complainant that if the complainant filed a claim, he would correct

the votes deleted by him. PW3 alleged that even his name has been deleted

from the list of voters. On the complaint of PW3, PW4 Sh. J.L. Khanna was

associated as panch witness and pre-raid formalities by noting the numbers of

the four currency notes of `100/- denomination were prepared. The said notes

were treated with phenolphthalein powder. Since the appointed place of

giving the bribe amount was at Bus stand on Ridge Road near Dhaula kuan,

the raiding party reached at the spot. On reaching the appointed place, PW3,

the complainant told the raiding officer that he would be going towards old

secretariat in his vehicle bearing No. DBR 65 and, the transaction would take

place in the car on the way. The Maruti Van of PW3 bearing No. DBR 65

came at about 2:15 P.M. PW4, J.L. Khanna sat on the front seat by the side of

the driver and PW3 and the Respondent on the rear seat. At about 3:00 P.M.

the vehicle reached 5, Alipur Road at the office of Delhi Administration and

from there the Maruti Van went to the office of Food & Supply situated at

Under Hill Road. At 3:30 P.M. PW3 told the raiding party that the

Respondent would be taking the bribe at Begum Zaidi Market, Moti Bagh

where the office of Yuva Janta Morcha was situated and they would be

reaching at the spot about 6:30 P.M. The raiding party took position at the

said market. At about 6:30 P.M. Maruti Van reached the spot where PW3

again offered money to the Respondent and when PW4 gave the pre-

appointed signal, the raiding party rushed towards the Maruti Van and

apprehended the Respondent. `400/- were recovered from the left hand of the

Respondent. Numbers of the G.C. notes were tallied and the left hand wash of

the Respondent turned pink. The same were seized and sealed in a glass

bottle. The Respondent was arrested and FIR was registered. On completion

of investigation, charge-sheet was filed. After recording of the prosecution

witnesses, statement of the Respondent was recorded. The Respondent was

acquitted vide the impugned judgment dated 20th November, 1997.

3. Learned APP for the State contends that the date of incident is 4 th

December, 1987 and the Respondent was on leave on that day. The learned

trial court while acquitting the Respondent has laid a lot of emphasis on the

change of place of payment from Dhaula Kuan to Alipur Road to Moti Bagh

near the office of the Complainant. The change of place was only an over-

cautious approach of the Respondent and in no way belied the prosecution

case. The trial court failed to appreciate that PW 3 the Complainant was

cross-examined on the 9th February, 1996 after more than six years and thus

variations are bound to take place in his testimony. In his statement under

Section 313 Cr.P.C., the Respondent had admitted most of the facts except

saying that he has been falsely implicated. The testimony of PW3, the

Complainant is corroborated by the testimony of PW4 J.L. Khanna, the panch

witness who accompanied PW3 throughout in the van. The conduct of the

Respondent becoming nervous on seeing the raiding party is relevant under

Section 8 of the Evidence Act. Slight variations in the testimony of PW4 as to

how the Respondent was holding the bribe amount has been clarified in his

cross-examination by the learned APP. Moreover the testimony of this

witness was recorded after nine years of the incident and thus variations are

bound to occur in the said testimony. The contradiction between the

statements of PW3 and PW4 as to whether the post raiding work was done at

the office of Anti Corruption Branch or on the spot does not go to the root of

the prosecution case and thus the Respondent could not have been acquitted

on the said ground. The evidence of PW3 and PW4 is further corroborated by

the testimony of PW7 the raid officer Insp. Abhay Ram. The CFSL report Ex.

PW6/B further corroborates the testimony of the witnesses as it opined that

the solution gave positive test for phenolphthalein and sodium carbonate.

Referring to a decision of this Court in Sri Chand Gaur vs. CBI Crl. Appeal

No. 252/2001 it is contended that when witnesses are examined after a long

time, variations are bound to occur and accused cannot be granted benefit of

those minor variations which do not go to the root of the matter.

4. Per Contra learned counsel for the Respondent has placed reliance on

State of Andhra Pradesh vs. S. Swarnlatha & Ors. 2009 (4) C.C.C. (SC) 168

to contend that in an appeal against acquittal if two views are possible and the

view taken by the learned trial court is probable then the Appellate Court will

not interfere. It is contended that the trial of the Respondent was conducted

under the PC Act, 1947 where unlike the Act of 1988 presumption was not

available. Thus, the evidence of the prosecution has to be examined in the

light of these two legal principles. PW1 Ram Kishan, Food and Civil Supply

Officer in his cross-examination has stated that SDM alone was competent to

uphold the objection and rectify the list. Thus, it was not in the competence of

the Respondent to rectify the list or make additions/alterations to the same. In

the absence of such a power vested in the Respondent, he could have neither

demanded the bribe nor would have been given the bribe for this work. PW 3

the Complainant himself in his examination-in-chief has given the reason for

false implication of the Respondent. PW3 has admitted that he was an active

worker of a political party and his vote has been deleted from the list of voters

from the polling booth No. 41. The conduct of the Respondent declining the

money after being offered four times is not in consonance with demand and

acceptance of bribe. No evidence has been led to show that PW3 had filled

the claim forms and no such document supporting the claim has been

exhibited. Only photocopies were placed on record which were not accepted

and were only marked by the learned Trial Court. Thus, the same cannot be

read in evidence. Even, the complaint Ex. PW3/A does not indicate the date,

month and the year of initial demand and thus this fact being stated for the

first time in the examination in chief shows that it was a clear improvement in

the testimony of PW3. PW3 has been duly confronted on this count. There are

material improvements in the testimony of PW3 i.e. his having stated that the

money was to be paid at Ridge Road, Dhaula Kuan and stating in his cross-

examination that he does not know which of the worker had filled up the

claim forms. In regard to the original document, he has stated that the original

documents must be in the party office and no verification of the claim form

has been done by the investigating agency. There are contradictions in the

testimony of PW4, the Panch witness also who has further stated that the

money was kept by the respondent in his front pocket which was recovered by

the Inspector. This witness has further stated that the Seizure memo of the

papers recovered from accused was also prepared by the Police officials. PW

4 who was sitting in the front seat has in his cross-examination stated that the

Respondent did not demand any money at any stage. In the absence of

demand, no case for conviction under PC Act is made out. There is also

discrepancy as to the place where the writing work i.e. the seizure memo etc.

were filled and the hand wash of the respondent was taken. PW4 has stated

that the hand wash was taken at the office of Anti Corruption Branch whereas

the other witnesses have stated that the same was done at the spot and thus

showing total manipulation. This part of the cross-examination has not been

challenged by the prosecution and no re-examination of the witness has been

conducted to clarify on the aspect that where the proceedings took place. All

the witnesses have admitted that the Respondent did not make any demand

throughout and PW3 was clearly instructed to give the money only when the

demand was made. Thus, in the absence of the demand, no money could have

been paid to the Respondent. PW7 Inspector Abhey Ram in his cross-

examination has admitted that he did not seize any objections or any

photocopies thereof and thus the photocopies of the said documents placed on

record have been planted. The decision of the trial Court acquitting the

accused as the prosecution has failed to prove its case beyond reasonable

doubt is correct. Thus, there being no illegality or perversity in the impugned

judgment the present appeal be dismissed.

5. I have heard learned counsel for the parties and perused the record.

Conscious of the limitation of interference in an appeal against acquittal, I

would now proceed to examine the evidence on record and examine whether

the judgment on the basis of said evidence falls in any of the categories laid

down by the Hon'ble Supreme Court in case of Ganpat vs. State of Haryana,

2010 (10) SCALE 237 i.e. whether the learned trial court has ignored material

evidence or material legal aspect. In case two views are possible, this Court

will not interfere in this appeal against acquittal.

6. PW3 Jaipal Singh is the Complainant of the case. According to him,

the Appellant told him to pay `400/- per polling booth and on the

Complainant giving fresh objections thereafter he would set everything right.

There were number of polling booths and number of discrepancies in the voter

lists. In was finally agreed with the Respondent to pay him `400/- only on 4th

December, 1987 for one polling both. However, as per the complainant it was

not decided for which polling booth this money was to be paid. The same

sounds highly improbable. When the money was agreed to be paid, the

polling booth for which it was being paid would have also been decided. This

part of the testimony of PW3 is also not supported by the documents which

were allegedly given in the form of list and objections. It has also not been

proved for which polling booth the same related to. There is no doubt that

during elections, the time available with the political parties is short and the

Complainant would not wait to pay in installments and get the list corrected

for one polling booth when it is not even decided for which one it is. I do not

find the testimony of PW3 to be reliable on this count.

7. The next issue that arises is whether the prosecution has proved the

demand by the respondent at the time of trap. PW3 Jaipal Singh was

accompanied by PW4, the panch witness and the driver. PW 3 does not

depose in his testimony that the Respondent demanded money while sitting on

the rear seat of the car along with him. According to PW 3, he stated to the

Respondent that he had brought the papers relating to one public booth as also

the money and requested him to correct the voters list for one polling booth.

The Respondent told him that he had some work at his office at 5, Alipur

Road regarding the transfers and that he would do the work first and then

accept the papers and the money. The Respondent then enquired about PW4

Mr. Khanna, to which PW 3 replied that PW 4 wanted permit for cement and

he had to get him the permit. PW3 again offered money to the Respondent but

he was reluctant and he took the car to the office of Food & Civil Supply,

Under Hill Road. PW3 again offered him the money at the Food & Civil

Supply Office, but the Respondent told him that they had to go to the office at

Begum Zaidi Marg and he would accept the money there. On the pretext of

going to the office of the Civil supplies PW3 and PW4 came out of the car

and informed PW7 that the Respondent would take money only in Zaidi

Market. He also told the Inspector that they would reach the Market by

6.30P.M. whereas, the Respondent remained seated in the car. They came

back and got into the car. On reaching Begum Zaidi Market, PW3 got down

and went to the office for 2-4 minutes while PW4 and the Respondent

remained seated in the car. PW3 came back. He again offered the money to

the Respondent while sitting in the car and gave money and papers. The

Respondent took the money in his left hand and list in the right hand on which

PW4 gave the signal to the raiding party. It is thus evident that in the entire

testimony of PW3 it is nowhere stated that the Respondent demanded money.

This evidence of PW3 is also corroborated by PW 4 who also in his testimony

does not state that the Respondent demanded money rather has stated that at

no stage money was demanded by the Respondent either initially or at the

time of trap. Though, it is stated that money was given to the Appellant along

with the voters list for correction and objections however, no documents have

been seized from the right hand of the Appellant. No explanation has been

offered by the prosecution as to why these papers were not recovered from the

right hand of the Appellant by the raiding officer.

8. It is now to be examined that in the absence of any demand, would

mere acceptance of money implicate the Respondent for offence punishable

under Section 161 IPC and Section 5(1) (d) read with Section 5(2) of the PC

Act, specially when the corroboration evidence of post raid proceedings is not

authentic. Demand is an essential ingredient for an offence punishable under

Sections 161 IPC and 5 (1) (d) read with 5 (2) of the PC Act. Section 4 of the

PC Act lays down a statutory presumption that in any trial for offence

punishable under Section 161 of the IPC or 5(1) (a) or (b) punishable under

Section 5(1) the Court is duty bound to raise a presumption after it is proved

that an accused person has accepted or obtain or admitted to obtain for himself

or any other person any gratification or any valuable thing. This presumption

is not available for offence punishable under Section 5(1) (d) read with

Section 5(2) of the PC Act. Hon'ble Supreme Court in Banarsi Dass Vs.

State of Haryana (2010) SCC 450 has held that to constitute an offence under

Section 161 IPC & Section 5(1)(d) of the PC Act it is necessary that there is a

demand of money and the same is accepted for doing a favour. Demand of

Money is a sine qua non for the conviction of the accused. Thus, in the

absence of demand and the presumption, the offence punishable under

Sections 161 and 5(1) (d) read with 5(2) of the PC Act has not been proved

beyond reasonable doubt by the prosecution in the present case.

9. In the light of the facts elaborated above, I find that there is neither any

illegality nor perversity in the view taken by the learned Trial Court. The

impugned judgment does not warrant any interference. Appeal is dismissed.

(MUKTA GUPTA) JUDGE

MAY 30, 2011 dk