Om Parkash vs State Nct Of Delhi
2013 Latest Caselaw 5075 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                     RESERVED ON : 29th August, 2013
                                     DECIDED ON : 6th November, 2013

+      CRL.A.765/2001

       OM PARKASH
                                                             ..... Appellant
                                Through :   Mr.K.B.Andley, Sr.Advocate with
                                            Mohd. Shamik, Advocate.

                                versus

       STATE NCT OF DELHI
                                                              ..... Respondent
                                Through :   Mr.Navin Kr.Jha, APP.


+      CRL.A.742/2001

       YOGENDRA SINGH BHARTWAL
                                                              ..... Appellant
                                Through :   Pramod Kumar Dubey with
                                            Mr.Shiv Chopra, Mr.Nitin
                                            Saluja and Mr.Saurav Upadhyay,
                                            Advocates.

                                versus

       STATE NCT OF DELHI
                                                              ..... Respondent
                                Through :   Mr.Navin Kr.Jha, APP.


CORAM:
MR. JUSTICE S.P.GARG
Crl.A.Nos.765/2001 & 742/2001                                         Page 1 of 8
 S.P.GARG, J.

1. Om Parkash (A-1) and Yogendra Singh Bhartwal (A-2)

challenge correctness and legality of a judgment dated 29.09.2001 in CC

No.10/93 arising out of FIR No.5/88 registered at Police Station Anti-

Corruption Branch (ACB) of Delhi by which they were held guilty for

committing offences punishable under Section 161 IPC read with Section

5 (1) (d) of POC Act and sentenced to undergo Rigorous Imprisonment

for one year with fine `100 on each count. The factual matrix of the case

are as under:

2. On 05.04.1988 Gulshan Lal (the complainant) looking after

the construction on plot No.A/2-439, Sector 8, Rohini, belonging to his

brother-in-law Ved Prakash moved an application in the office of DDA to

inspect the construction completed upto DPC level. The dealing clerk

gave the date of inspection as 07.04.1988 in between 10.30 a.m. to 1.30

p.m. The complainant requested A-2 to inspect it on 05.04.1988 itself to

avoid its stoppage. A-2 demanded `200/- as bribe to carry out the

inspection on the same day. The complainant agreed helplessly to make

the payment of `200 after making arrangement. A-2 asked him to give

money in between 2 to 5 p.m. The complainant approached ACB and

lodged complaint (Ex.PW-6/A). PW-8 (Yog Raj Sharma), Raid Officer,

carried out the pre-raid proceedings and associated NK Abraham as

'panch' witness. The raiding team after completing the formalities went

to the plot where the inspection was to be carried out. The complainant

was informed by the mason working on the plot that the surveyor has

visited the plot and had instructed him to ask Gulshan to come to DDA

office before 05.00 p.m. with `200. On that, the raiding team reached at

Project Office of DDA, Rohini and laid a trap. It is alleged that the

complainant paid `200/- as bribe to A-1 on the direction of A-2 and he

(A-1) accepted it. On getting pre-determined signal from the 'panch'

witness, the raiding party apprehended A-1 and recovered the tainted

money from the pocket of his pant. Post raid proceedings were conducted

and A-2 was arrested. During the course of investigation statements of

witnesses conversant with the facts were recorded. After completion of

investigation a charge-sheet was filed against A-1 and A-2 for committing

the aforesaid offences. The prosecution examined 12 witnesses to

establish their guilt. In their 313 statements, the appellants pleaded false

implication. DW-1 (Rakesh Kumar Sehrawat) was examined in defence.

After appreciation of the evidence and taking into consideration the

submissions of the parties, the Trial Court by the impugned judgment held

both of them perpetrators of the crime and sentenced them accordingly.

Being aggrieved, they have preferred the appeals.

3. I have heard the learned counsel for the parties and have

examined the record carefully. Gulshan Lal (PW-6) claimed to be Ved

Prakash's attorney to supervise the construction on his plot in question as

he himself resided in Gurgaon. He did not place on record any such

power of attorney executed in his favour. Application for inspection

moved on 04.04.1988 bears Ved Prakash's signature whereby a request

was made to the Project Officer to inspect the plot as construction upto

DPC level was complete. The dealing clerk gave the date as 07.04.1988.

The Investigating Officer did not examine the dealing clerk who has

received the application and has given the specific date for inspection.

The complainant did not explain as to how the application for inspection

was signed by Ved Prakash when he was not available and the entire

construction was being supervised by him. During the course of

investigation, no attempt was made to contact Ved Prakash or to examine

him as a witness. Apparently, Gulshan Lal had no authority to visit the

office to insist inspection of the plot in the absence of any authorization

by the owner. Application to carry out inspection was moved on

05.04.1988 and it was not expected by the officials to inspect the plot on

the same day. PW-6 (Gulshan Lal) admittedly working as Junior

Intelligence Officer in IB insisted to get the inspection carried out on the

same day. There was no occasion for the complainant not to wait till

07.04.1988 and to get the inspection carried out on the same day on

payment of `200/-. The complainant approached the ACB on 05.04.1988

and trap proceedings were conducted the same day. In the complaint

(Ex.PW-6/A) A-1's name does not figure though in the cross-

examination, the complainant admitted his acquaintance with him as he

had taken the measurement of the plot. Additions and alterations at point

'X' and 'Y' on Ex.PW-6/A remained unexplained. The complaint does

not reveal as to at which specific place bribe amount of `200/- was to be

accepted by A-2. When the raiding team went to the 'plot' at the

appointed time, neither A-1 nor A-2 was present there to receive the bribe

amount. It is alleged that 'mason' present at the spot informed the

complainant about the visit of surveyor and gave direction to the

complainant to visit the office before 05.00 P.M. The raid officer

admittedly did not visit the plot and examine the mason. He was unaware

if any such information was conveyed by the mason to the complainant.

Complainant and panch witnesses have given completely contradictory

statements in this regard. Panch witness PW-7 (N.K.Abraham) deposed

that when the complainant inquired from the labourers working on the

plot if anybody had come to meet him, the reply was given in the

negative. The Investigating Officer did not attempt to ascertain the name

of the mason or the labour who had conveyed the information. Thereafter,

the raiding team went to the office where `200/- were allegedly accepted

as bribe by A-1 on A-2's directions. All the witnesses have contradicted

each other on this aspect and have given inconsistent version. PW-7 did

not implicate A-2 at all and asserted payment of `200/- by the

complainant to A-1 only. He denied that he had given any predetermined

signal to the raiding team. He was cross-examined by learned Additional

Public Prosecutor after court's permission as he resiled from the previous

statement recorded under Section 161 Cr.P.C. He elaborated that A-2 was

arrested after he was named by A-1 who disclosed that money was to be

given to him. PW-7 did not adhere to the prosecution's case that on

specific demand by A-2 from the complainant in the office, A-1 was sent

out to collect and accept the bribe amount on his behalf. The complainant

did not offer any plausible explanation as to why the alleged bribe amount

which he was supposed to offer to A-2 was not given in the office and

why he opted to come out of the office to give the bribe amount to A-1.

In the examination-in-chief he did not depose that A-2 had directed him to

pay the bribe amount to A-1 outside the office. Apparently, there was no

demand by A-1 and no acceptance by A-2. PW-6-complainant, PW-7-

panch witness and PW-8-raid officer were unable to narrate the entire

facts completely in their examination-in-chief and were able to recollect

after they were given specific suggestions in cross-examination by Addl.

Public Prosecutor.

4. In the light of conflicting versions and suspicious features on

crucial aspects, complainant's version does not appear to be wholly

reliable. Neither the demand nor the acceptance alone is sufficient to

establish the offence. Mere recovery of tainted money divorced from the

circumstances under which it was paid is not sufficient to convict the

accused. The complainant's testimony is lacking to prove that A-1

accepted the bribe amount with the tacit approval of A-2. No other

independent public witness was associated in the investigation from the

office of the accused where the alleged transaction took place. The

prosecution was unable to establish that both A-1 and A-2 shared common

intention to demand and accept the bribe amount from the complainant.

Conviction of the appellants cannot be founded on the basis of inference.

5. In the light of the above discussion, the impugned judgment

cannot be sustained and is set aside. The appeals are allowed. Benefit of

doubt is given to the appellants and they are acquitted in this case.

6. Trial Court record along with a copy of this order be sent

back forthwith.

(S.P.GARG) JUDGE November 06, 2013 sa