Hari Kishan vs State
2011 Latest Caselaw 5041 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                 Crl. Appeal No. 964/2010 & Crl.M.B. 1143/2010

%                                           Reserved on: 2nd August , 2011

                                            Decided on: 13th October, 2011

HARI KISHAN                                                ..... Appellant
                                Through:   Mr. Raj Kumar, Adv.

                       versus

STATE                                                       ..... Respondent
                                Through:   Mr. C.L. Gupta, APP for State.

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. By this appeal the Appellant lays a challenge to the judgment dated 21st

July, 2010 convicting him for offences punishable under Section 7 and

Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act

(in short P.C. Act) and order on sentence directing him to undergo Rigorous

Imprisonment for a period of four years and a fine of Rs. 20,000/- on each

count and in default of payment of fine to further undergo Simple

Imprisonment for a period of six months on each count.

2. Learned counsel for the Appellant contends that the initial demand has

not been proved in the case. The most important witness that is the

complainant has not been examined. PW4 is a shadow witness and PW5 a

panch witness. PW4 Kashmir Singh has nowhere stated as to when they met

and where they met. PW4 does not even say that they went to meet in the

office of the accused on the 31st January, 2006 along with complainant Hukam

Singh where the alleged bribe amount was settled. It is contended that the

testimony of this witness is not reliable as he retracted and changed his

statement. In inquiry he has stated that it was 30th January, 2005 when he and

Hukam Singh met the accused after knowing that the Appellant was on leave

on 31st January, 2005. As per the statement of the raiding officers and others

it was PW7 Kalyan Singh in whose presence the demand was made and

money was given. However, in his cross-examination PW7 has stated that the

Appellant did not demand and accept any bribe in his presence. The version

of PW4 cannot be believed as the site plan Ex.PW6/A does not show his

presence. According to PW8 Inspector Sunil Kumar the proceedings were

completed by 7.15 PM whereafter the rukka was sent. However the most

material witnesses Ct. Kishan Pal and driver of the vehicle have not been

examined who could prove the sequence of events. PW5 SI Om Prakash has

however stated that Ct. Kishan Kumar reached by 8.00 PM along with the

Rukka sent by Inspector Sunil Kumar and it took about 2 hours to write down

the FIR. He has further stated that no one asked about the FIR number from

him by means of telephone. Thus, it is apparent that the entire team would

have waited for Ct. Krishan Kumar till 10.30 PM. PW8 has stated in his

cross-examination that Hukam Singh did not give him any papers. He also

did not try to ascertain the identity of Hukam Singh and Kashmir Singh from

any independent source before proceeding for raid. PW6 Inspector Jai

Prakash has stated that he along with Inspector Sunil Kumar and panch

witness left the Anti-corruption office at about 1.30 PM. This testimony of

the witness is contrary to that of the other witness. Thus, the testimony of

three witnesses i.e. the PW4, PW6 and PW8 is not reliable and two important

witnesses have been withheld by the prosecution. The Appellant be acquitted

of the offences charged.

3. Learned APP on the other hand contends that the demand and

acceptance has been proved by the prosecution. PW4 Kashmir Singh has

clearly deposed about the incident and the accused demanding bribe. The

presumption under Section 20 of the P.C. Act comes into operation as accused

was found in possession of the notes. The Appellant has not discharged the

onus put on him to prove his innocence. In his statement under Section 313

Cr.P.C. he has simply denied the alleged incident. Even though the

complainant has not been examined, the case of the prosecution has been

proved beyond reasonable doubt by the clear and cogent testimonies of other

witnesses.

4. I have heard learned counsel for the parties and perused the records. In

the present case the complainant Hukam Singh died before he could enter the

witness box, thus his testimony could not be recorded. However, the

testimony of PW4 Kashmir Singh who is the relative of Hukam Singh and had

accompanied him on 2nd February, 2006 to the Anti-corruption Branch has

proved the initial demand, the demand at the time of raid and the acceptance

of the money. He has stated that on 2nd February, 2006 he had gone to the

Anti-corruption Branch along with his relative Hukam Singh. Hukam Singh

had got his statement recorded to one Inspector vide Ex.PW4/A which bears

his signatures at point 'A' and handed over 20 GC notes of Rs. 5,000/- each to

him who recorded their serial numbers. Thus, the complainant having alleged

the initial demand as set out in the complaint has been proved by this witness

as he has stated that the statement was made in his presence and he has signed

at point 'A' on the Ex.PW4/A.

5. PW4 Kashmir Singh has further stated that after completion of the pre-

raid formalities by 1.30 PM he along with Hukam Singh, the panch witness

raid team officers and other members of the raiding party left Anti-corruption

Branch and reached Vikas Bhawan ITO at about 2.15 PM. The Government

vehicles were left at some distance and he along with Hukam Singh and panch

witness went to the Land and Building Department, Vikas Sadan. When they

reached the office of Tehsildar they came to know that he had gone

somewhere. They waited outside the office up to 3.30 PM. When they again

went to the office of the Tehsildar they came to know that he had arrived. He

along with panch witness and Hukam Singh were in his office where the

Appellant while sitting on his chair asked them to wait for some time outside

and also asked to come in the office of L.A. Branch after 15 minutes. They

went after 15 minutes to the office of L.A. Branch at about 4.30 PM. The

Appellant enquired about the presence of the person who had accompanied

him i.e. the complainant and panch witness and he introduced PW7 Kalyan

Singh (the Panch witness) as his son. Thereafter, the Appellant enquired from

Hukam Singh whether he had brought money, on which Hukam Singh replied

that he had brought Rs. 10,000/-. The Appellant told him that he had to give

Rs. 20,000/- on that day on which the complainant replied that he would give

him Rs. 10,000/- on the next Friday. Thereafter, the complainant gave the

treated currency notes in the right hand of the Appellant. The other panch

witness went outside the room and gave a pre-determined signal on which the

raiding party rushed and apprehended the Appellant. Despite extensive cross-

examination the testimony of this witness could not be discredited.

6. Despite the fact that the panch witness PW7 has turned hostile, however

his testimony corroborates the testimony of PW4 to the extent of the

complainant and PW4 coming to the Anti-Corruption Branch and giving

complaint. Also he has deposed that on the relevant date he joined his duty as

Panch witness and accompanied complainant and PW4 to the office of

Tehsildar and they went to the L.A. Branch. This witness has stated that he

could not hear the conversation between the complainant and the accused as

the voice was low. PW7 has admitted that the Raiding Officer seized the GC

notes and took the right hand wash of the accused and it turned pink. He has

also admitted his signatures on the post raid proceedings. Thus the recovery

of notes from the accused stands proved by the testimony of the witnesses.

Merely because PW7 has not completely supported the prosecution case and

turned hostile on the aspect of demanding the bribe the same will not belie the

otherwise convincing and cogent testimony of PW4.

7. Further the testimony of PW4 is corroborated by the CFSL report

wherein one set of wash solution sent to CFSL gave positive test for

phenolphthalein powder. Also the right hand wash and pocket wash of the

accused's pant gave positive result for the presence of phenolphthalein

powder. Thus, in the present case the demand and acceptance stands proved

by the cogent testimony of PW4 and there is recovery of currency notes from

the accused person. Hence presumption under Section 20 of P.C. Act comes

into play for offence under Section 7 of the P.C. Act and the onus shifts on the

accused to prove his innocence. The case of accused is of total denial and

nothing has been placed on record to discharge this onus. Hence the

prosecution has well established its case beyond reasonable doubt against the

accused.

8. I find no illegality in the impugned judgment. The appeal and

application are dismissed being devoid of merit.

(MUKTA GUPTA) JUDGE October 13, 2011 'ga'