Gireesan A. vs State Of Delhi
2012 Latest Caselaw 6739 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       CRL.A. 123/1998
+                            Date of Decision: 26th November, 2012

#      GIREESAN A.                                      ..... Appellant
!                                Through:Mr. N. Hariharan, Mr. Vaibhav
                                   Sharma & Mr. Amit Satija, Advocates

                                 versus

$      STATE OF DELHI                                  ..... Respondent
                             Through:Mr. M.N. Dudeja, APP for the State


      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN
                   JUDGMENT

P.K.BHASIN, J:

The appellant-accused was a traffic constable in Delhi Police and on 23rd April, 1993 while he was performing traffic duty alongwith one Sub-Inspector Vijender Pal Sharma both of them were arrested by the anti-corruption branch officials for their having demanded and accepted bribe of Rs.50/- from one truck driver Bhupinder Singh for not challaning him. The bribe was allegedly demanded by the said Sub- Inspector and on his direction was accepted by the appellant herein from the said Bhupinder Singh. Both of them were apprehended in a trap laid by the anti-corruption branch officials who were present near the place where bribe was demanded by the Sub-Inspector from Bhupinder Singh. They were positioned there as there were complaints

that traffic officials were indulging in corrupt practices and on noticing Bhupinder Singh to be in some problem they had asked him as to what was the matter and then he had complained to them that the Sub- Inspector on duty at that place had stopped his truck and was demanding bribe for letting him go without being challaned.

2. In due course the appellant was charge-sheeted for the commission of the offences punishable under Sections 7 and 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short „P.C. Act‟) while the Sub-Inspector was got discharged from the Special Judge. The appellant was then tried for the aforesaid offences and finally vide judgment dated 20th March, 1998 he was convicted also for both the offences and vide order dated 21st March, 1998 he was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/-, in default to undergo further rigorous imprisonment for three months u/s 7 of P.C. Act and rigorous imprisonment for one year and six months and to pay fine of Rs.2,000/-, in default to further undergo rigorous imprisonment for six months for the conviction under Section 13 (1)(d).Feeling aggrieved, the present appeal was filed by the appellant.

3. The detailed facts leading to the prosecution and conviction of the appellant-accused were noticed by the learned Special Judge in the impugned judgment and the relevant paras are re-produced below are as under:

" A complaint had been received by the D.C.P., Anti-Corruption Branch from the D.C.P. (Traffic) about corruption in the lower ranks of Traffic Police. This complaint was marked to Inspector Kanwal Singh for a secret watch on the traffic staff on duty at Outer Ring Road near Wazirabad bridge.

2. Inspector Kanwal Singh, Inspector Tola Ram Mirwani and other staff of Anti-Corruption Branch, along with an independent witness Man Singh (PW-2), stationed themselves on the Outer Ring Road near Wazirabad crossing at a distance of about 200 yards from the place where the traffic police was on duty.

3. On 23-4-1993, at 12.30 p.m., complainant Bhupinder Singh was seen coming from the side where the traffic staff was on duty. Inspector Kanwal Singh approached him and asked him his difficulty. Bhupinder Singh made a complaining statement Ex. PW2/A alleging that he was coming from Ludhiana with his truck No. HR 01 A-3395, which was loaded with grocery items, nut-bolts, cloth etc. When he reached Outer Ring Road near Wazirabad crossing, his truck was stopped by a Sub Inspector and a Constable of Delhi Traffic Police and they threatened to challan him. The complainant told them that he had already been challaned on G.T. Karnal Road, upon which, the Constable and the Sub Inspector demanded Rs.50/- as bribe and threatened that in case he did not pay the bribe, he would be challaned again.

4. A trap was organised. The complainant gave a currency note of Rs.50/-, which was treated with phenolphthalein powder. Demonstration about the effect of the powder on a colourless solution of sodium carbonate was given by touching the right hand of the witness and washing it in the solution which turned pink. Properties of the two chemicals were explained to the complainant and the panch-witness. The complainant and the panch-witness were directed to approach the Sub Inspector and the Constable of Traffic Police. The complainant was directed to talk to them in such a manner that the panch-witness was able to overhear their conversation, and to give money to them in the presence of the panch-witness. The panch-witness was directed to listen to the talks and to observe the transaction and when he was satisfied that the money had been paid as a bribe, to give signal by moving his hand over his head. These proceedings conducted before the raid, were reduced into writing and have been proved on record as Ex. PW2/B.

5. The complainant and the panch-witness approached the Sub Inspector and the traffic constable who were standing near a traffic motor-cycle No. DL2S D-8641. Immediately, on seeing the complainant, accused Grison asked the complainant to give Rs.50/- as entry fee and take his truck. The complainant gave the tainted currency note to accused Girison A. in the presence of the panch-witness and Sub Inspector V.P. Sharma. Accused Girison took the currency note in his right hand and kept it in the back pocket of his pants. Panch-witness Maan Singh (P.W.2) gave the pre-appointed signal, upon which Inspector Kanwal Singh challenged accused Girison that he had accepted Rs.50/- as bribe from complainant Bhupinder Singh at the directions of V.P. Sharma, Sub Inspector. The money was recovered from the back pocket of his pants. His right hand wash and pants pocket wash turned pink indicating the presence of phenolphthalein on his right hand and on the right side back pants pocket. The C.F.S.L. report confirmed the presence of phenolphthalein and sodium carbonate in the bottles containing the hand wash and pants pocket wash."

4. During the trial the complainant Bhupinder Singh was not examined as a prosecution witness since he was not traceable. The learned Special Judge, however, convicted the appellant on the basis of evidence of the panch witness(PW-2) and the raid officer(PW-4).

5. The relevant portions from the examination-in-chief of panch- witness Man Singh which were brought to my my notice by the learned prosecutor are re-produced below:-

"On 23.4.1993, I had come to anti-corruption branch on duty. We had gone to near Wazirabad bridge on Outer Ring Road. One truck driver Bhupinder Singh came to that place after seeing our police vehicle and made a complaint.......................................................................................

The complainant gave a GC note of Rs.100/- before the inspector. Power was applied to it after noting down its number. Demonstration was given by touching my hand to the treated note and then dipping it in the solution prepared from another powder. The solution turned pink. The currency note was then given back to the complainant.

I was instructed to remain with the complainant and to give signal by moving my hand on my head when the money was accepted by the accused. Pre-raid proceedings were recorded which are Ex. PW2/B and signed by me at point „A‟. We then went to the place where the traffic police was standing. The complainant went to the traffic constable. The S.I. was standing at some distance. The complainant gave the currency note of Rs.50/- to the accused. The accused took the currency note in his right hand and kept it in the back pocket of his pants.

Q: What talk took place between the complainant and the accused? Ans. The accused had told the driver/complainant to give Rs.50/- and take his truck.

When the accused accepted the money, I gave signal by moving my hand over my head. The members of the raiding party reached the spot. They appended the accused. The raiding officer disclosed his identity to the accused and challenged the accused that he had accepted bribe money from the complainant. The accused became nervous and denied that he had accepted any money. We all then went to the Sub Inspector.

The money was taken out from the back pocket of pants of Grison accused present in the Court. There are some other money in his pocket besides the currency note of Rs.50/-. The number of that note tallied with that already recorded in the raid report. The Sub Inspector was also challenged but he denied having accepted any bribe.

The currency note of Rs.50/- recovered from Grison was seized. The right hand of the accused was washed and the solution turned pink. I was transferred into one glass bottle. The bottle was sealed.

Then the right side back pocket of the accused was washed in another solution which also turned pink.

6. The relevant portions from the chief-examination of the raid officer,PW-4, which were also specially brought to my notice by the prosecutor are also re-produced below:-

"On 23.4.93, I was posted as Inspector in the A.C. Branch Delhi. On that day, I along with Inspector Tola Ram of other staff of A.C. Branch

was present at Outer Ring Road near Wazirabad crossing. Public witness Man Singh, Superintendent, was also with us. We were present there in connection with verification of secret enquiry/secret watch. Complainant Bhupinder Singh met us at about 12.30 p.m. and gave his statement Ex. PW2/A which was recorded by me. He gave me one GC note of Rs.50/-. I noted down its number. Applied phenolphthalein powder to it and then gave demonstration by touching hand of the panch witness and then washing it in the solution of sodium carbonate. The colourless solution turned pink. In this way it was explained that whoever would touch the said note and his hand was washed, in the solution would likewise turn pink. The currency note was given back to the complainant.

The complainant was instructed to give money demanded by the accused on specific demand. Panch witness was asked to stay close to the complainant, listen his talk with the accused and give signal by moving his hand over his hand when satisfied that the money was accepted as bribe. Pre raid proceedings were recorded which are Ex. PW2/B. We all washed our hands.

The raiding party took positions and complainant and the panch witness were sent ahead to contact the accused where the traffic police was present about 200 yds away on Outer Ring Road.

At about 12.50 p.m. on receipt of signal from panch witness, we apprehended accused present in the Court. The complainant told us that he had given the money to accused Grison on the direction of S.I. V.P. Sharma. I disclosed my identity and challenged both of them. They became perplexed. I offered my personal search to the accused but he refused to take my search. I then recovered the currency note of Rs.50/- from the right side back pocket of the pants worn by the accused Grison. The number of the currency note was tallied with the pre-raid report and found to be the same.

Currency note Ex.P-1 was seized vide memo Ex. PW2/C. Right hand of Grison was washed in the freshly prepared solution of sodium carbonate and the solution turned pink................ The right back side pant pocket of the accused was also washed and the solution turned pink..........................................................................................................."

7. It was contended by the learned Additional Public Prosecutor that from these statements of the panch witness and the raid officer it was clear that there was recovery of the phenolphthalein treated currency

note of Rs.50/- from the pant pocket of the appellant-accused and that evidence could not be shattered in the cross-examination of these two witnesses and, therefore, it was for the appellant-accused to explain as to why did he take that money from the complainant and he having failed to do that the trial Court was perfectly justified in holding him guilt of demanding and accepting bribe from the complainant.

8. However, I do not find merit in this submission of the learned prosecutor. There is no doubt that there was reliable evidence of recovery of the currency note of Rs.50/- from the appellant-accused and even the learned counsel for the appellant had not even attempted to challenge the reliability of that evidence but when cross-examination of the panch witness as well as the raid officer is read it becomes clear that the appellant-accused had not demanded any bribe from the complainant nor he had accepted Rs.50/- on his own but it was on the asking of his superior officer on duty with him at the time of the trap, (the discharged accused). In cross-examination on behalf of the appellant-accused, PW-2 Man Singh had stated that when the raid officer had reached the spot the complainant had told him that the appellant-accused had taken Rs. 50/- on the asking of Sub-Inspector V.P. Sharma (the discharged accused) and the raid officer had also told the appellant-accused that he had taken Rs.50/- from the complainant on the asking of Sub-Inspector V.P. Sharma. Similarly the raid officer PW-4 Kanwal Singh had also stated in his cross-examination that the

complainant had told him that he had given the money to the appellant- accused on the direction of Sub-Inspector V.P. Sharma. There is thus no reliable evidence adduced by the prosecution to show that the money which according to the statement of PW-2 in his chief- examination was demanded by the appellant-accused from the complainant and had told him to take away his truck after making the payment was on account of illegal gratification and there is also no evidence to the effect that the appellant-accused knew that Sub- Inspector V.P. Sharma had already demanded bribe of Rs.50/- from the complainant Bhupinder Singh. So, if on the asking of his superior the appellant-accused had taken money from the complainant it cannot be inferred from that that he himself had demanded and accepted bribe from the complainant and since the complainant himself was not examined even the original demand of money from him as bribe, as was the prosecution case, did not get established which was an essential ingredient of the offence in question. This was held to be so by the Apex Court in its judgment reported as (2009) 6 SCC 587, "A. Subair Vs. State of Kerala".

9. It was rightly contended by the learned counsel for the appellant that even otherwise since undisputedly the complainant was to be challaned so there was nothing unusual in the appellant asking him to pay money as fine and in any event that possibility could not be ruled out in the facts and circumstances of the case and no presumption

alone could be raised against the appellant that he had obtained bribe only from the complainant. I am also in agreement with the submission of the counsel for the appellant that the fact that the complainant straightaway approached the anti-corruption officials standing on the road raises a suspicion about the credibility of the trap itself as there is nothing on record to suggest that the complainant knew that traffic police officials were being kept under surveillance by anti-corruption branch officials.

10. Considering all the facts and circumstances, in my view the conviction of the appellant-accused cannot be sustained and he is entitled to be acquitted by giving him the benefit of doubt. This appeal is accordingly allowed. The judgment dated 20th March, 1998 of the learned Special Judge and the order on sentence dated 21st March, 1998 are set aside. Consequently, the appellant-accused stands acquitted of both the charges for which he was tried. During the pendency of this appeal the sentence of imprisonment awarded to the appellant-accused was suspended and he was released on bail and now that he stands acquitted his bail bonds stand discharged.

P.K. BHASIN, J NOVEMBER 26, 2012