Rajinder Prasad Sharma vs State
2014 Latest Caselaw 1312 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on: 06.03.2014.
                                  Judgment delivered on:11.03.2014.
+      CRL.A. 85/2006
       RAJINDER PRASAD SHARMA                   ..... Appellant
                      Through Mr. K.B. Andley, Sr. Advocate
                              with Mr.M.L.Yadav, Adv.

                         versus

       STATE                                      ..... Respondent
                         Through        Mr.Varun Goswami, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

of sentence 01.02.2006 & 02.02.2006 respectively wherein the appellant

Rajinder Prasad Sharma has been convicted under Section 12 of the

Prevention of Corruption Act, 1988 (hereinafter referred to as the PC

Act) and has been sentenced to undergo RI for a period of 2 years and to

pay a fine of Rs.20,000/- and in default of payment of fine, to undergo

SI for 4 months.

2 On 27.09.1999 ACP Arjun Singh (PW-1) had made a complaint

to the Anti-Corruption Branch which was to the effect that the

appellant/accused Rajinder Prasad who was working as Inspector in the

State Transport Department (STD) had offered to pay a bribe to PW-1

on account of the fact that since he was illegally extorting money from

drivers while checking the vehicles at Rajokri Chowk and this activity

had been brought to the notice of PW-1 and in order that PW-1 would

not report the matter to the higher officers of the appellant, bribe of

Rs.15,000/- had been offered by the appellant to PW-1. Complaint to the

said effect was filed before the Anti-Corruption Branch. This complaint

has been proved as Ex.PW-5/A. It was recorded by the raid officer ACP

Niranjan Singh examined as PW-5. PW-1 has admitted his signatures on

this complaint but has stated that these signatures were obtained on this

complaint without his knowing the contents of the complaint; his

submission on oath being that some persons from the Anti-Corruption

Branch had come to his house in the early morning hours of 27.09.1999

where he had signed 10-12 documents at their asking without reading

their contents.

3 Pursuant to this complaint (Ex.PW-5/A), a raiding party had been

constituted and on 27.09.1999 since it had been agreed that the appellant

would visit the house of the complainant on that date, the panch-witness

Y.P. Talwar (PW-3) had been apprised of the proceedings and he had

been directed that on appropriate signal being given, the raiding party

would reach the spot. The panchnama recorded at the spot has been

proved as Ex.PW-3/A. As per this panchnama, the appellant (Inspector

Rajinder Sharma) along with HC Mahender Singh had visited the house

of PW-1; bribe money amounting to Rs.6,000/- had been given to PW-1

which was in the presence of PW-3; on the appointed signal being given

i.e. "Savita Campa Lao", the raiding party including PW-5 reached the

spot. PW-5 challenged the accused stating that he had taken the bribe

money. The tainted money i.e. the sum of Rs.6,000/- comprising of 60

notes in the denomination of Rs100/- each were seized vide seizure

memo Ex.PW-1/D.

4 On the basis of the aforenoted evidence, the challan was filed;

prosecution has examined 6 witnesses; in his statement under Section

313 of the Cr.PC, the appellant had denied offering any bribe money to

PW-1; submission being that although he had gone to the house of PW-

1 on the fateful day i.e. on 27.09.1999 which was in connection with

some work of PW-1 and on his asking; there was no occasion for the

appellant to offer any bribe to PW-1 as they were both from different

departments and the appellant had no connection with PW-1.

5      No evidence has been led in defence.

6      On behalf of the appellant, arguments had been addressed in

detail. It is submitted that PW-1 the complainant has not supported the

version of prosecution and has categorically stated that sum of

Rs.6,000/- which had been recovered from his house had been put on the

table by HC Mahender Singh; in fact the appellant was not present at

that time; he had gone to purchase sweets from the market; it is pointed

out that PW-3, the panch witness is also hostile and he has also given

the same version as PW-1. It is further submitted that the judgment of

the Sessions Judge convicting the appellant on the sole testimony of

PW-5 is clearly an illegality for the reason that PW-5 had admittedly

reached the spot after the transaction was over and although

undisputedly the bribe money was recovered from the house of PW-1 on

the fateful day when both the appellant and HC Mahender Singh were

present; the version of PW-1 and PW-3 who were the only eye witnesses

to the incident is consistent and which is to the effect that it was HC

Mahender Singh who had offered this bribe money and not the

appellant. In such a scenario, the trial Judge relying upon the version of

PW-5 has clearly committed an illegality. To support this argument,

learned counsel for the appellant has placed reliance upon a judgment of

the Apex Court reported as AIR 2010 SC 1589 Banarsi Dass Vs. State

of Haryana; submission being that in the absence of proof of any

acceptance or demand and until and unless the prosecution has proved

all the essential ingredients necessary for the offence, conviction of the

appellant cannot be sustained. For the same proposition, reliance has

also been placed upon another judgment of this Court in Crl. Appeal

No.95/2006 Rajinder Kumar Narang Vs. State.

7 Arguments have been refuted by the learned public prosecutor for

the State. It is pointed that on no count, does the impugned judgment

call for any interference. It is pointed out that the version of the raid

officer, if credible, is by itself sufficient to nail the accused and for this

proposition reliance has been placed upon 2009 VII AD (Delhi) 390

Ram Chander Vs. State (NCT of Delhi). For the same proposition

reliance has also been placed upon a judgment of this Court in Crl.

Appeal No.58/1999 decided on 29.09.2008 Samay Singh Vs. State of

Delhi. Learned public prosecutor has also relied upon the provision of

Section 114 of the Indian Evidence Act; submission being that the

common course of natural events and human conduct has to be followed

for which proposition reliance has been placed upon 188 (2012) dLT

661 Parmanand Kansotia and Seetha Lath & Anr.; submission being

that it would be difficult to imagine that an educated Inspector would

sign blank documents.

8 Arguments have been heard. Record has been perused.

9 The version of the prosecution was that PW-1 had made a

complaint (Ex.PW-5/A) which was to the effect that he was being

offered a bribe by the appellant Rajinder Prasad who was posted as an

Inspector in the State Transport Department and was checking vehicles

at the Rajokri Chowk and on the fateful evening of 25.09.1999 and

26.09.1999, PW-1 who had been deputed by the seniors in the Anti-

Corruption Branch to keep a vigil had noted these illegal activities of the

appellant which had led the appellant to offer a bribe to PW-1 pursuant

to which the aforenoted complaint (Ex.PW-5/A) had been recorded.

10 The star witness of the prosecution was PW-1 who is the

complainant himself. He has not toed the line of prosecution. His

version is that on 24.09.1999, he was called by V.V. Chaudhary, DCP,

Anti-Corruption Branch and was directed to go for surveillance in the

STA in the morning of 25.09.1999 at the G.T. Karnal Road; he

proceeded for his job towards Murthal; there was a long queue of traffic

being checked by the STA staff at the crossing; he sent his driver to find

out why there was such a long queue; he was informed that some drivers

were being challaned unnecessarily. PW-1 alighted from his vehicle and

went to the In-Charge who was the appellant Inspector Rajinder Prasad

whom he identified from his name plate. PW-1 also recognized the

appellant as he had met him on earlier occasion of 26.06.1999 at

Gurgaon at the shagun ceremony of his friend‟s son; further version of

PW-1 being that the appellant has offered him a cup of tea on

25.09.1999 which was refused; PW-1 told the appellant that he must do

his job honestly; on 27.09.1999 at 08:15 am, he received a telephone

call from the appellant who expressed his desire to visit him. PW-1

refused the courtesy but had an apprehension that the appellant would in

fact visit him and accordingly he informed his senior V.V. Chaudhary;

the earlier incidents of 25.09.1999 & 26.09.1999 were also informed to

him. Further version of PW-1 being that V.V. Chaudhary thereafter

dictated a report addressed to the Additional C.P., Anti-Corruption

Branch wherein he had got recorded that the appellant had offered a

bribe of Rs.10,000/- to PW-1; PW-1 categorically denied that any such

offer was made by the appellant who had only offered him a cup of tea;

this report was kept to V.V. Chaudhary. Further deposition of PW-1

being that on 27.09.1999 his door bell rang; on opening the door, he saw

HC Mahender Singh of STA Branch standing there; he was informed

that Inspector Rajinder Sharma wants to buy some sweets; there upon

HC Mahender Singh took out a packet wrapped in a piece of newspaper

and placed it on the centre table of drawing room of PW-1; PW-3 who

was a member of the raiding party and who had been deputed to give the

appointed signal at the appropriate time given the signal of „Savita

Campa Lao‟; PW-5 entered the scene; he saw the packet of money lying

there. PW-3 opened the pack. There were 60 currency notes of Rs.100/-

denomination totaling to Rs.6,000/-. The door bell rang again and at that

point of time, the appellant walked in. This stand further continued in

his cross-examination when he was declared hostile and even in his

cross-examination, his continuous stand being that the sum of Rs.6,000/-

had been brought in a packet of HC Mahender Singh and put it on the

centre table of his room at the time when the appellant had gone to the

market to purchase sweets; the packet of money had been opened by

PW-3 on the asking of PW-5 containing the amount of Rs.6,000/- and it

was only thereafter that the appellant entered the scene. In further part of

his cross-examination, PW-1 has stated that although he had signed the

document (Ex.PW-5/A) yet it was signed at the time when he had

consumed liquor on 27.09.1999 and he had gone to sleep; sometime at

03:00 am SI Kanwar Singh had come to his house and had asked him to

sign 8-10 papers which he had signed without reading them; at that time,

he was under the influence of liquor; he stated that he should not have

taken excessive drink; he reiterated that the report given by V.V.

Chaudhary to the Additional C.P. contained false facts and PW-1 had in

fact not read the report but he did this only at his asking and under

pressure of V.V. Chaudhary. He admitted that he was forced to sign

papers in which false allegations have been made; his submission was

that he did not want to report the matter to his senior A.A. Farooqi as he

was not on good terms with him. PW-1 further admitted that on

27.09.1999, he had received a telephone call from the appellant at his

residence where he was told that he wishes to do some "sewa paani" and

for that purpose he wanted to meet him. He admitted that apart from the

incidents of 25.09.1999 & 26.09.1999, he had no contact with the

appellant.

11 The panch witness Y.P. Talwar was examined as PW-3. He also

did not toe the line of prosecution. His version was same as that of PW-

1. He had joined the raid proceedings on 27.09.1999. He admitted that

HC Mahender Singh from the STA had come to the house of PW-1

where he had taken out a packet and put it on the centre table of drawing

room of PW-1 and he told the complainant that "yeh paise aap key liye

hain"; at that time the appellant had gone to buy sweets from the market.

It was thereafter that the appellant reached there and informed the

appellant that these sweets are for his children; PW-1 had refused to take

them. Further version of PW-3 being that as per instructions given to

him by the Anti Corruption Branch officials, he thereafter gave the

signal of "Savita Coke Lao". PW-5 entered the room. The packet of

newspaper lying on the table and Rs.15,000/- was lying wrapped in that

packet. Currency notes were seized vide seizure memo Ex.PW-1/D.

PW-3 admitted his signatures on the aforenoted seizure memo. PW-3

was also declared hostile and was permitted to be cross-examined by the

public prosecutor. He however stuck to his stand. He admitted that he

had signed the document i.e. panchnama which was prepared at the spot

(Ex.PW-3/A) as also the seizure memo of notes (Ex.PW-3/B) as also the

search memo of the flat (Ex.PW-3/D). However his stand otherwise

being consistent that it was HC Mahender Singh who had brought this

packet of money and he had put it on the center table of room of PW-1.

It was only thereafter that the appellant had come into the room as he

had gone to market to purchase sweets for PW-1; PW-5 had entered the

scene thereafter.

12 PW-5 ACP Niranjan Singh is the raid officer. He had recorded the

statement of PW-1 and of PW-3. He had on oath deposed that the panch

witness i.e. PW-3 and the complainant (PW-1) and the contents of

Ex.PW-5/A had been read over to PW-3 and to the complainant PW-1.

He reiterated that in the pre-raid proceedings, it had been explained to

PW-3 and he had been appointed to give the appointed signal at the time

when bribe money was being offered to PW-1. He has deposed that on

the fateful day at about 07:15 pm, the panch witness i.e. PW-3 had given

the pre-decided signal "Savita Campa lao" and soon thereafter he

entered the drawing room where both HC Mahender Singh and PW-1

were sitting on the sofa; the panch witness and the complainant were

also present. PW-5 disclosed his identity to the appellant and challenged

him that he had taken money. He has further deposed that panch witness

i.e. PW-3 had told that Inspector Rajinder Prasad (the appellant) had

told Arjun Singh (PW-1) that "mithai to siraf bacho key liye hai, aap key

liye tow kuch aur laye hai"; stating that the panch witness had told that

the bribe money had been offered to PW-1 by the appellant. This

witness has been subjected to a lengthy cross-examination. He stuck to

his stand and stated that the bribe money had in fact been offered by the

appellant to PW-1.

13 The Special Judge had relied upon this version of PW-5 to draw a

conclusion that the case of the prosecution has been proved to the hilt.

The learned Judge has also placed reliance upon a judgment of the Apex

Court in 1998 SC 1474 State of U.P. Vs. Zakaullah to draw a conclusion

that the testimony of the raid officer, if credible, is by itself sufficient to

nail the appellant. The trial Judge had also noted that the versions of

PW-1 and PW-3 although hostile, to some extent do corroborate the

version of PW-5 and in this context, the finding of the Sessions Judge

reads as under:-

"Although the evidence of the raid officer PW-5 does not require any corroboration but I find that the complainant PW-1 does not corroborate the

evidence of the raid officer PW-5 as the complainant PW-1 has admitted in his evidence that he had noticed a traffic jam on 26.06.1999 at about 03:30 PM near Rajokri Chowk on National Highway No. 8 and he personally verified and found that the drivers of the vehicle complained to him that accused and his STA staff were challaning their vehicles unnecessarily and were extorting money from the vehicle drivers and accused Rajinder Prasad Sharma had telephoned the complainant PW-1 on that day. Similar is the version of the complainant PW-1 regarding the incident of 25.09.1999 in his evidence. The complainant PW-1 has supported the prosecution case to the extent that he has admitted in his evidence that on 27.09.1999 at about 08:15 AM he had received a telephonic call from accused Rajinder Prasad who told him on the phone that he wanted to see him for doing his „seva pani‟ because the complainant had heard about complaints against the accused on the above referred two occasions. The recovery of the bribe money Ex.P-1 to Ex.P-150 wrapped in a newspaper Ex.P-152 and sweet box Ex.P-151 from the spot and arrest of the accused from the spot is not disputed. If accused had gone at the instance of DCP V.V. Chaudhary to the house of the complainant PW-1 for the work of complainant in STA then what was the occasion for the accused to have taken the sweet box Ex.P- 151 to the house of the complainant. It does not stand to reason as to why the complainant would plant such a heavy amount upon the accused especially when it is not even the case of the accused that the complainant has planted this amount upon him. No reasonable explanation is forthcoming from the side of the accused on this vital aspect. The recovery of the bribe money has been initiated by the panch witness PW-3 at the spot and the evidence of the panch witness in this regard supports the prosecution case. It is evident from the evidence of panch witness PW-3 that he has twisted the prosecution case by concealing that accused Rajinder Prasad had offered bribe money wrapped in a newspaper but he has admitted in his evidence that accused Rajinder Prasad had come to the house of the complainant PW-1 with a sweet box Ex.P-151. As already observed above, there was no occasion for the accused to come with a sweet box to the house of the complainant. Upon

taking an overall view of the evidence available on record, I do find that the evidence of the complainant PW-1 and the panch witness PW-3 do provide some corroboration to the prosecution case. This corroboration may not be sufficient by itself but there is evidence of the raid officer PW-5 which is clinching."

14     Accordingly, the appellant stood convicted.

15     This Court is not in agreement with this finding of the learned

Special Judge. Admittedly even as per the version of the prosecution,

PW-5 had entered the scene only after the incident stood complete; as

such PW-5 was clearly not in a position to know whether the bribe

money was offered to PW-1 by HC Mahender Singh or the appellant.

The consistent stand of the eye-witnesses i.e. the complainant and the

panch witness on this score is that the bribe money had been offered by

HC Mahender Singh to PW-1 by putting a newspaper packet on the

centre table of PW-1. Whereas PW-1 had stated that this bribe money

comprised of Rs.6,000/- i.e. 60 notes in the denomination of Rs.100/-,

the other discrepancy in the version of PW-3 is that this bribe money

was Rs.15,000/-. Be that as it may, the version of PW-5 is not reliable

on the incident in question as he was admittedly never a witness to this

incident; this is also not the version of the prosecution either. PW-5

admittedly entered the scene after the incident was complete. That

part of the version of PW-5 wherein he has on oath stated that the panch

witness i.e. PW-3 had told him that the bribe money had been paid by

the appellant to PW-1 is a hearsay testimony; such a hearsay evidence is

not admissible and in fact should not have been relied upon by the trial

Judge to base the conviction of the appellant. The eye-witnesses i.e. the

complainant (PW-1) and the panch witness (PW-3) not endorsing the

version of the prosecution and giving a totally different version by

stating that it was HC Mahender Singh who had offered and put the

bribe money on the table of PW-1 and not the present appellant, the

conviction of the appellant holding that it was the appellant who had

offered this bribe money to PW-1, in this background, clearly suffers

from a huge illegality.

16 The trial Judge also noting that testimony of PW-5 stood

corroborated by the versions of PW-1 and PW-3 is again faulty. There is

no doubt that PW-1 has admitted that he had noticed traffic jam on

26.09.1999 and he had given details of the incident of 25.09.1999 to his

senior V.V. Chaudhary. He has also admitted that he received a

telephone call from the appellant who told him that he wants to do some

„sewa paani‟ but what that „sewa paani‟ was, has never been elaborated

in the version of prosecution. There was also no doubt that the bribe

money of 150 notes of Rs.100/- each totaling to sum of Rs.15,000/- had

been recovered from the spot but the crucial question is whether this

bribe money was offered by HC Mahender Singh or the appellant in

order to nail the appellant. Both the eye witnesses on this score and at

the cost of repetition have deposed that this money had been put on the

drawing room table by HC Mahender Singh and not by the appellant.

The appellant had, at that time, gone to purchase sweets. Trite it is to say

that a suspicion cannot take the place of proof and even if a grave

suspicion had arisen in the mind of the trial Judge that the appellant

having accompanied HC Mahender Singh had offered this bribe money

to PW-1 without there being clinching evidence on this score,

conviction based in such a background qua the appellant is not

sustainable.

17 PW-1 has in his cross-examination admitted that he had signed

10-12 documents without reading them as SI Kanwar Singh from the

Anti-Corruption Branch in the early morning hours at 03:00 AM had

come to his house to get certain documents signed from him and at that

stage he being in the stage of intoxication having taken liquor on the

previous evening did not read them before signing. In a further part of

his cross-examination, he has admitted that this was his fault and he

should not have done this. Relevant would it be to also state that the

public prosecutor had cross-examined this witness but he did not put any

suggestion to him that this is wrong statement which has been made by

him. Thus the judgment relied upon by the learned prosecutor does not

come to his aid.

18 The Courts have time and again reiterated that the penal

provisions under the PC Act are strict and conviction of an accused

cannot be founded on the basis of an inference; offence has to be proved

against the accused beyond reasonable doubt either by direct evidence or

by circumstantial evidence. To constitute an offence under Section 12 of

the PC Act the necessary ingredient for abetment of the offence which is

punishable either under Section 7 or section 11 of the said Act and penal

provisions providing punishment of not less than six months which may

be extended to 5 years and also liable for fine have to be established.

This has not been done.

19 The impugned judgment cannot be sustained. It is accordingly set

aside. Appeal is allowed. Appellant is acquitted. His bail bond is

cancelled. Surety discharged.

20     File be consigned to record room.



                                       INDERMEET KAUR, J

MARCH 11, 2014

A