Brij Mohan vs Central Bureau Of Investigation
2014 Latest Caselaw 230 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       Judgment reserved on: 06.01.2014
                       Judgment delivered on:13.01.2014
+      CRL.A. 108/2007

       BRIJ MOHAN                                 ..... Appellant

                         Through     Mr. Yudhishter Kahol, Mr. Kunal
                                     Kahol, Mr. Manjeet Godora,
                                     Mr.Archit Arora and Ms. Aarushi
                                     Agarwal, Advs.

                         versus

       CENTRAL BUREAU OF INVESTIGATION ..... Respondent

                         Through     Mr. P.K. Sharma, standing
                                     counsel for the CBI along with
                                     Mr. A.K. Singh, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

of sentence dated 23.01.2007 and 29.01.2007 respectively wherein the

appellant had been convicted for the offence punishable under Section 7

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

Act, 1988 (hereinafter referred to as the 'said Act'); he had been

sentenced to undergo rigorous imprisonment for 2 years and to pay a

fine of Rs.25,000/- in default of payment of fine to undergo simple

imprisonment for 6 months for the offence punishable under Section 7

of the said Act; he had been further sentenced to undergo rigorous

imprisonment for 3 years and to pay a fine of Rs.25,000/- in default of

payment of fine to undergo simple imprisonment for 6 months for the

offence punishable under Section 13(2) read with Section 13(1)(d) of the

said Act.

2 On 07.3.2001, the complainant/Baljit Singh (PW-1) had made a

complaint to the Central Bureau of Investigation (CBI) to the effect that

Sub-Inspector Brij Mohan (hereinafter referred to as 'the appellant') had

called him to police station Adarsh Nagar on 06.3.2001 and demanded a

sum of Rs.5000/- for helping him in getting regular bail in proceedings

in FIR No.571/2000 which had been registered at the said police station

against PW-1 and his family members on the complaint of his wife

under Section 498A of the IPC. PW-1 being unwilling to pay the bribe

had accordingly filed this complaint.

3 A raiding party was constituted. Apart from PW-1 two

independent witnesses who were asked to join the raid were

S.P.S.Chauhan (PW-3) who was the shadow witness and Ashok Kumar

(PW-6) another independent witness. Inspector Surinder Malik (PW-9)

was the Trap Laying Officer; Sub-Inspector Raja Chatterjee (PW-10)

was another member of the raiding party.

4 In the pre-trap proceedings the sum of Rs.5000/- comprising of 10

GC notes of Rs.500/- each were coated with phenolphthalein powder;

the reaction of phenolphthalein with Sodium Carbonate was explained

to the members of the raiding party; PW-1 was directed to hand over

these notes to the appellant on his demand.

5 The CBI team left for police station Adarsh Nagar at 5.45 p.m.

PW-1 and PW-3 waited for the appellant; at 6.25 p.m. the appellant

reached the police station; on the appointed signal by PW-3 the raiding

party rushed to the room of the appellant which was located on the first

floor of the police station. PW-9 after disclosing his identity to the

appellant challenged the appellant that he had received the bribe amount

of Rs.5000/- from the complainant; at the first instance the appellant

made a denial; on query he stated that he had flushed the money into the

toilet; the toilet was searched but no money was found there. The room

of the appellant was searched and from underneath the mattress of the

bed the tainted money i.e. Rs.5000/- was recovered.

6 Right hand wash of the appellant as also his left hand wash were

taken; they were sealed into separate containers. The washes from the

right pant pocket of the appellant and of the mattress were also taken.

7 The CFSL vide its report Ex. PW-2/A proved through its Senior

Scientific Officer K.S.Chhabra (PW-2) after chemical analysis of the

washes opined positive test of phenolphthalein on the hand washes as

also on the piece of mattress. The wash of the right pant pocket had

given a negative reaction.

8 Charge sheet was filed and pursuant thereto charges under

Sections 7, 13(2) read with Section 13(1)(d) of the said Act were framed

against the appellant. Prosecution examined 10 witnesses. In the

statement of the accused recorded under Section 313 Cr. P.C., he

pleaded innocence; submission being that he was falsely implicated at

the behest of the complainant who had a grudge against him because he

had given an adverse report against him in FIR No.571/2000. In

defence 1 witness was examined and through him he sought to set up the

plea of alibi. His version was to the effect that he had accompanied the

appellant to the police station Adarsh Nagar on 06.3.2001 where

settlement talks between appellant and his wife were taking place; the

appellant had asked them to bring respectable persons from the village

in order that settlement talks could be recorded between PW-1 and his

estranged wife.

9 On behalf of the appellant arguments have been addressed in

detail by Mr.Kahol, learned counsel for the appellant. It is pointed out

that the versions of PW-1, PW-3, PW-6, PW-9 and PW-10 on the

manner in which the recovery had been effected from the appellant are

all contrary and conflicting; reliance cannot be placed upon such

conflicting versions. Attention has been drawn to their testimonies; it is

pointed out that different witnesses have given different versions not

only on the recovered amount but also the place from where the

recovery had been effected. It is pointed out that both PW-3 and PW-6

i.e. the shadow witness and the so-called independent witness had also

been declared hostile by the learned public prosecutor as they were not

toeing the line of the prosecution; even in their cross-examination by the

learned public prosecutor they denied the suggestions which had been

put to them. It is pointed out that the handing over memo did not

contain the fact that the complainant had brought notes in the

denomination of Rs.50/- but he had got them exchanged from PW-9

who had handed over him to 10 notes in the denomination of Rs.500/-;

why this fact was not mentioned in the handing over memo as also the

fact that PW-9 in his testimony had denied the factum of a tape recorder

being used in the raid which otherwise stands admitted by the other

witnesses creates a doubt on the authenticity of the raid. Attention has

also been drawn to the various questions which have been put to the

appellant in his statement under Section 313 Cr. P.C. with particular

reference to question no.4,8, 14 and 37. It is pointed out that these

questions were against the versions set up by the prosecution; no motive

can be attributed to the appellant for making any demand as admittedly

in terms of the order dated 02.3.2001 (in FIR No.571/2000) PW-1 was

not to be arrested till 23.3.2001; thus the question of seeking bail did

not arise. There is also no explanation as to why the wash from the pant

pocket tested negative when as per the version of the prosecution the

appellant had put the tainted money in his right pant pocket. It is

pointed out that the entire recovery had in fact been planted; electricity

had admittedly gone out during the period when the raid was being

conducted; it was pitch dark and only one candle was used in the trap

proceeding and the investigating officer had used this opportunity to

plant the money upon the appellant; the recovery is doubtful. Counsel

for the appellant has placed reliance upon 2007(4) JCC 2715 Ganpathi

Sanya Naik Vs. State of Karnataka as also a judgment of this court

reported in 2005 III AD (Delhi) 41 Subash Chand Chauhan Ors. Vs.

C.B.I to support his submission that where serious doubts arose as to

the manner in which bribe was offered and receipt took place, appellant

was given benefit of doubt and he had been acquitted. Benefit of doubt

on the aforenoted counts must accrue to the appellant as well; he is

entitled for a consequent acquittal.

10 Learned public prosecutor has refuted the arguments submitted by

the learned counsel for the appellant. It is pointed out that on no count

impugned judgment suffers from any infirmity. It is submitted that

minor discrepancies in the versions of the witnesses are bound to arise

when they had deposed in the court after two years of the incident. The

evidence had been appreciated in the correct perspective by the learned

trial judge. There is also no answer by the appellant to the hand washes

of the appellant and mattress having tested positive for phenolphthalein;

this could be for no other reason but the fact that the tainted money had

been received by the appellant and had been put under the mattress by

him. Learned public prosecutor has placed reliance upon (2009) 6

SCC 462 Subbu Singh Vs. State , (2010) 14 SCC 453 Narayana Vs.

State of Karnataka and 1998 CRI L.J. 863 State of U.P. Vs. Zakaullah ;

submission being that the evidence of the trap officer even without

corroboration can in the given facts be relied upon; where the accused

was caught red handed with the tainted money the offence was clearly

made out. Further submission being that a hostile witness is not to be

ignored in toto and that portion of his testimony pointing out to the guilt

of the accused can be accepted.

11 Record has been perused. Submissions of the learned counsel for

the parties have also been appreciated.

12 Testimonies of PW-1, PW-3, PW-6, PW-9 and PW-10 apart from

PW-2 would be relevant to answer the submissions and the counter

submissions of the parties.

13 PW-1 was the complainant. He had filed his complaint (Ex.PW-

1/A) before the CBI on 07.3.2001. On oath he stated that a demand of

Rs.5000/- had been made by the appellant from him in order to dilute his

case i.e. proceedings in FIR No.571/2000; he was ensured that the

appellant would not oppose the anticipatory bail which was being

pursued by PW-1. Pursuant to his complaint a raiding party had been

constituted. His further testimony is to the effect that on reaching police

station Adarsh Nagar the appellant was not available; he reached after

about ten minutes. PW-1 was accompanied by PW-3 when they entered

the room of the appellant who accepted the money in his both hands and

after counting the same he confirmed "PURE PAISE HAI". PW-3 had

given the appointed signal; pursuant to which the other members of the

raiding party reached the room of the appellant. Further version of

PW-1 being that on search from the right side pant pocket of the

appellant the tainted money was recovered; some currency notes were

also on the bed; his room was searched and thereafter the money was

also recovered from underneath the bed. Hand wash as also pant pocket

wash and wash of the mattress were taken. In a further part of his

testimony PW-1 admitted that he had brought a packet of currency notes

of the denomination of Rs.50/- which were deposited with the CBI and

they were exchanged for notes of Rs.500/- denomination which had

been given to him by PW-9. He reiterated that the appellant had

received the trap money in his right hand and after counting it with both

hands he put it in the right side pocket of his trouser. He also admitted

that when PW-3 was asked to recover the trap money from the right

pocket of the trouser of the appellant no money was recovered and the

money was later on recovered underneath the bed. In his cross-

examination, he admitted that before the raid was conducted the light

had gone out; it was a pitch dark; only one candle was arranged which

was fixed on the table to conduct the proceedings; the bath room was

also searched but no money was recovered there; the entire money of

Rs.5000/- was then recovered from underneath the mattress of the bed.

He admitted that a tape recorder had been given to him by PW-9 to

record the conversation but he switched on a wrong button. He denied

the suggestion that the bribe money had been planted on the appellant

in the garb of darkness or that the accused had been falsely implicated

because PW-1 was annoyed with him on account of the adverse report

which had been filed in the court in the proceedings of FIR

No.571/2000.

14 Version of PW-1 is conflicting and contrary on various counts;

not only in the manner in which the trap amount had been recovered but

also the place from where the recovery had been effected. In one part of

his version PW-1 had consciously stated that a part of the tainted money

was recovered from the right trouser pocket of the appellant; some

money was lying on the bed and some was recovered underneath the

bed. Assuming for the sake of argument that this part of his version

that a part of the money was recovered from under the bed and not the

mattress was a typographical error but this position has been repeated by

him three times over; in a fourth part of the version he had stated that

the money was recovered from underneath the mattress. Learned public

prosecutor had declared the witness hostile but even then he was unable

to elicit from him the version set up by the prosecution which was to the

effect that the entire sum of Rs.5000/- was recovered from underneath

the mattress of the bed. Even in the cross-examination by the learned

public prosecutor PW-1 stated that the money was recovered from

underneath the bed and not from under the mattress.

15 From this version it is also clear that PW-1 had initially brought

notes in the denomination of Rs.50/- but PW-9 had exchanged them for

notes in the denomination of Rs.500/-. This fact did not admittedly find

mention in the handing over memo (Ex.PW-1/B). PW-1 in his

examination-in-chief also concealed the fact that a tape recorder was

used in the raid proceeding. PW-3 and PW-6, however, admitted that a

tape recorder was used in the raid proceeding. The tape recorded

conversation was admittedly not brought on record. Submission of the

learned counsel for the appellant that an adverse inference for

withholding the tape recorded conversation should be drawn against the

prosecution in view of the provisions of Section 114 (g) of the Indian

Evidence Act is not bereft of force.

16 PW-3 was the shadow witness. He had accompanied PW-1 to the

room of the appellant. He categorically stated that when PW-1 offered

money to the appellant he refused to accept it; they had hardly walked 5

to 6 steps when the electricity went off. Appellant was thereafter

apprehended from his hands i.e. from his shoulder. He was searched.

Appellant stated that he had thrown the tainted money in the bath room

but no recovery was effected from there. Further version of PW-3 being

that some money was recovered from the bed and some from the pocket

of the appellant. This witness was also permitted to be cross-examined

by the learned public prosecutor. He admitted that the notes which had

been brought by PW-1 had been exchanged by PW-9 for a different

denomination but he did not remember the details. He denied the

suggestion that any demand was made by the appellant in his presence.

He also denied the fact that the trap money had been taken by the

appellant in his presence and put into his right pocket. In another part of

his version he admitted that the tainted money was recovered from

underneath the mattress.

17 Testimony of this witness also does not help the prosecution.

Submission of the learned public prosecutor is that this witness was

declared hostile; testimony of the hostile witness cannot be effaced

completely and that part of his version which is in conformity with his

statement recorded under Section 161 Cr.P.C. can be read.

18 There is no doubt to the proposition that a witness once declared

hostile, his testimony is not washed off completely. However, greater

care and caution has to be attached while scrutinizing the testimony of

such a witness. Even while accepting the submission of the learned

public prosecutor and even if the testimony of this witness is ignored or

only that part of his version is read which is in conformity with his

version under Section 161 Cr.P.C., the question is whether the version

of the next independent witness i.e. PW-6 can be reconciled with the

conflicting stand taken by PW-1.

19 PW-6 had joined the raid. He deposed that after about five

minutes of their reaching the police station PW-3 had given the

appointed signal when the other members of the raiding party reached

the first floor i.e. the room of the appellant. While they were just going

to mount the stairs the electricity went off; a candle was lit on the

instructions of PW-9. PW-9 then apprehended the appellant from his

wrists and challenged him that he had taken the bribe. The appellant in

the first instance denied this but thereafter admitted that he had thrown

the trap money in the toilet. Further version of PW-6 being that four

notes of Rs.500/- were recovered from the pocket of the appellant i.e.

Rs.2000/- ; six notes of Rs.500/- i.e.Rs.3000/- were recovered from

underneath the mattress. This witness was also permitted to be cross-

examined by the learned public prosecutor. He denied the suggestion

that the entire amount of Rs.5000/- was recovered from underneath the

mattress. In his cross-examination, he admitted that the complaint of

Baljit Singh was got written by CBI officer from him in their presence.

He further reiterated that when the candle was lit he saw PW-9 holding

the hands of the appellant. He reiterated that Rs.2000/- was recovered

from the pant pocket of the appellant and Rs.3000/- from underneath the

mattress. He also admitted that a tape recorder was used in the raid.

20 This testimony of PW-6 also cannot be reconciled with the

version of PW-1 and PW-3. All of them have given different versions.

Not only are the shadow witness (PW-3) and the independent witness

(PW-6) giving conflicting stands but the testimony of PW-1

(complainant) when examined as a whole also suffers from glaring

infirmities. PW-1 is also not sure of his stand.

21 In this background whether the money was recovered from the

trouser pocket of the appellant; from the bed; from under the mattress or

beneath the bed is not clear. To hold the appellant guilty on these

varying stands which are not only natural to go to the root of the issue

would not only be unsafe but would amount to a travesty of justice.

22 PW-9 was the trap laying officer. He had prepared the handing

over memo (Ex.PW-1/B). Admittedly there was no mention in this

document that initially notes of Rs.50/- were brought by PW-1 but had

been exchanged for notes in the denomination of Rs.500/-. There was

also no mention that a tape recorder was used in the raid. PW-9 had in

fact specifically denied that any tape recorder/micro phone was used in

the raid whereas all other members of the raiding party i.e. PW-3 and

PW-6 including PW-10 (whose testimony shall be discussed later) have

admitted this fact. It is also admitted that there was no electricity in the

police station between 6.30 p.m. to 7.30 p.m. i.e. during the period of

time when the raid was on. Raid was conducted under light of a single

candle.

23 PW-10 also a member of the raiding party but in his cross-

examination had given several evasive answers; he also did not

remember if there was darkness in the room at the time when the raid

was conducted.

24 In terms of Ex.PW-2/A (report of the chemical analyst) the right

pant pocket wash of the appellant tested negative. There is little answer

of the prosecution on this count. As per the explanation furnished by

PW-2 even if the colour fades over a period of time, phenolphthalein

powder could be detected if the solution contains 5 micro grams in 100

ml. of sodium carbonate solution; further if the hand wash of the

appellant had tested positive, the phenolphthalein coated wad of 10

notes when put in the pant pocket would have had a greater quantity of

phenolphthalein coated upon them; the negative report of the pant

pocket wash, in this background is highly suspect. It has also come on

record in the version of PW-1, PW-3 and PW-6 that the appellant had

been apprehended by PW-9 from both his wrists i.e. he was caught hold

of only his hands. Electricity had also gone off; as per PW-1 it was

pitch dark and there was only light from one candle in these

proceedings. In this background, the submission of the learned counsel

for the appellant that the money was planted upon the appellant in this

intervening period by the Investigating Officer (PW-9) for the success of

his case also cannot be ruled out. The judgments relied upon by the

learned public prosecutor are distinct on their own facts. It is also not

the case of the prosecution that the tainted money was in the physical

possession of the appellant.

25 The aforenoted discussion shows that the prosecution has failed to

prove its case to the hilt against the accused. A conviction against the

appellant in these circumstances is clearly not sustainable. Impugned

judgment is accordingly set aside. Appellant being entitled to a benefit

of doubt is granted a consequent acquittal. He is accordingly acquitted

of the charges.

26     Appeal is allowed in the above terms.



                                       INDERMEET KAUR, J

JANUARY 13, 2014/ndn