[Cites 46, Cited by 0]

Delhi High Court

Baldev Singh vs C.B.I on 28 January, 2026

                          *   IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                          Judgment Reserved on: 22.01.2026
                                                     Judgment pronounced on: 28.01.2026
                          +   CRL.A. 567/2001
                              BALDEV SINGH                                 .....Appellant
                                              Through: Mr. Sandeep Sethi, Sr. Advocate with
                                                          Ms. Riya Kumar, Advocate.
                                              versus
                              C.B.I.                                       .....Respondent
                                              Through: Ms. Avshreya Pratap Singh Rudy,
                                                          CGSC with Mr. Ankit Khatri, Ms.
                                                          Usha Jamnal and Ms. Nyasa Sharma,
                                                          Advocates.
                          CORAM:
                          HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
                                              JUDGMENT

CHANDRASEKHARAN SUDHA, J.

1. In this appeal filed under Section 374(2) of the Code of

Criminal Procedure, 1973, (the Cr.P.C.) the sole accused, in C.C.

No. 72/99 on the file of the Special Judge, Tis Hazari Court, Delhi,

assails the judgment dated 02.08.2001 and order on sentence dated

03.08.2001 as per which he has been convicted and sentenced for

the offences punishable under Section 7 and Section 13(1)(d) read

with Section 13(2) of the Prevention of Corruption Act, 1988 (the

PC Act).

2. The prosecution case is that the accused, while posted as

Assistant Sub Inspector (ASI) at Police Post Shakur Basti, on

08.11.1995 demanded illegal gratification of₹ 10000/- from PW1

for not harassing him in connection with the complaints initiated at

the instance of the latter's brother and, on 09.11.95actually

received ₹ 5000/-.

3. Sanction for prosecution was accorded by PW2, Deputy

Commissioner of Police (North-West District), Delhi, vide Ext.

PW2/A order dated 18.04.1996.

4. Crime no.98(A) 95-DLI, that is, Ext.PW7/A FIR, was

registered on the basis of PW1/A complaint of PW1.After

completion of investigation by PW8, a charge-sheet was filed

against the appellant alleging the commission of the offences

punishable under Sections 7 and Section 13(2) read with Section

13 (1)(d) of the PC Act.

5. When the accused was produced before the trial court, all

the copies of the prosecution records were furnished to him as

contemplated under Section 207 Cr.P.C. After hearing both sides,

the trial court vide order dated 19.02.1998, framed a charge under

Section 7 and Section 13(1)(d) read with Section 13(2) of the PC

Act and also under Section 384 of the Indian Penal Code, 1860,

(the IPC), which was read over and explained to the accused, to

which he pleaded not guilty.

6. On behalf of the prosecution, PWs. 1 to 8 were examined

and Exts. PW1/A-D, PW2/A, PW3/A, PW3/A, PW4/A-D, PW5/A,

PW6/A, PW7/A and PW8/A were marked in support of the case.

7. After the close of the prosecution evidence, the accused

was questioned under Section 313 Cr.P.C. regarding the

incriminating circumstances appearing against him in the evidence

of the prosecution. The accused denied all those circumstances and

maintained his innocence. He submitted that he has been falsely

implicated in this case as PW1 had a grudge against him. He stated

that he had gone to 'Standard Sweet Shop' to meet PW1an

acquaintance, but he neither demanded nor accepted any money.

According to him, it was one Sanjay Yadav, the companion of

PW1, who tried to thrust money into his pocket which he resisted,

and as a result thereof, the currency notes fell down on the ground

and his scooter also fell down in the process. Immediately, he was

surrounded by the CBI officials, who falsely implicated him in this

case.

8. After questioning the accused under Section. 313 Cr.P.C.,

compliance of Section 232 Cr.P.C. was mandatory. In the case on

hand, no hearing as contemplated under Section 232 Cr.P.C. is

seen done by the trial court. However, non-compliance of the said

provision does not, ipso facto vitiate the proceedings, unless

omission to comply the same is shown to have resulted in serious

and substantial prejudice to the accused (See Moidu K. vs. State

of Kerala, 2009 (3) KHC 89 : 2009 SCC OnLine Ker 2888).

Here, the accused has no case that non-compliance of Section 232

Cr. PC has caused any prejudice to him.

9. On behalf of the accused, DWs. 1 to 5 were examined and

Ext. DW3/A was marked in support of his defense.

10. On consideration of the oral and documentary evidence

on record and after hearing both sides, the trial court vide the

impugned judgment dated 02.08.2001 held the accused guilty of

the offences punishable under Section 7 and Section 13(2) read

with Section 13(1)(d) of the PC Act. Vide order on sentence dated

03.08.2001, the appellant has been sentenced to undergo rigorous

imprisonment for a period of two and half years with fine of

₹10,000/-, and in default of payment of fine, to undergo simple

imprisonment for two months for the offence punishable under

Section 7 of the PC Act, and to rigorous imprisonment for one and

half years with fine of ₹5,000/-, and in default of payment of fine,

to undergo simple imprisonment for two months for the offence

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

PC Act. He has been acquitted of the charge under Section 384

IPC. The sentences have been directed to run concurrently.

Aggrieved, the accused has preferred this appeal.

11. The learned senior counsel for the appellant submitted

that the conviction is vitiated for want of proof of demand, which

is sine qua non for the offences punishable under Sections 7 and

13 of the PC Act. It was argued that PW1 gave materially

contradictory versions regarding the amount, date, and place of the

initial demand. In examination-in-chief, PW1 stated that ₹20,000/-

was demanded at 'Standard Sweet Shop' in the 10th or 11th month

of 1995, whereas in cross-examination he stated that ₹10,000/- was

demanded at his Health Centre on 08.11.1995, later correcting the

amount as ₹20,000/-. PW1 further deposed that he did not recollect

whether the initial demand was made on 08.11.1995 or whether

such demand was mentioned in his complaint or in his statement to

the police. These contradictions, it was submitted, strike at the root

of the prosecution case. Reliance was placed on Subhash Parbat

Sonvane v. State of Gujarat; JT 2002(4) SC 348 to contend that

in the absence of clear proof of demand, conviction cannot be

sustained.

11.1 It was further submitted that the alleged demand on the

day of the trap has also not been proved beyond reasonable doubt.

Apart from the bare assertion of PW1, there is no independent

corroboration of the alleged telephonic call directing him to

'Standard Sweet Shop' with money. PW5, the shadow witness,

though present with PW1 merely stated that the latter spoke to

someone on the phone and could not confirm that the appellant

made the call or demanded money. It was argued that this assumes

significance as the prosecution relies upon the telephonic call to

explain the change of venue for the trap. Further, the versions of

PW1 and PW5 regarding the events at 'Standard Sweet Shop' are

mutually inconsistent. While PW1 stated that he and PW5 waited

at the gate and the appellant arrived thereafter, PW5 stated that

they had already gone upstairs and that the appellant was brought

upstairs by PW1's companion. PW1 also contradicted himself by

stating at one stage that a conversation regarding money took place

upstairs and at another stage that no demand was made there.

11.2 The learned Senior Counsel next submitted

that acceptance of illegal gratification has not been not proved.

Even according to PW5, the appellant never accepted money either

upstairs or while sitting on his scooter. PW5 stated that PW1

attempted to pass money to the appellant through his companion

upstairs, but the appellant declined it. It was further submitted

that recovery of money is doubtful. PW4 stated that when he

reached the spot, there was grappling between the appellant and

Sanjay Yadav, the scooter of the appellant/accused was lying on

the ground, and the currency notes were already on the road.PW4

denied that the appellant/accused took the notes out of his jacket

and threw them on the ground. PW6 testified that the scuffle and

recovery took place about 15-20 shops away from the place of the

alleged meeting. Reliance was also placed on the dictum of Suraj

Mal v. State; (1979) 4 SCC 725 and Smt. Meena w/o Balwant

Hemke v. State of Maharashtra; (2000) 5 SCC 21.

11.3 It was lastly submitted that the prosecution case is

further weakened by the non-examination of Sanjay Yadav, PW1's

companion, who was admittedly present throughout and played a

crucial role in the alleged incident, including the scuffle and

recovery. Failure to examine this material witness, it was argued,

warrants an adverse inference. On the issue of sanction, PW2

admitted that he had not brought the sanction file and it is unclear

as to what material was placed before him, while DW5 stated that

the sanction file was not traceable. In the absence of proof of

application of mind, the sanction is vitiated, as held in Mohd.

Iqbal Ahmad v. State of A.P.; 1979 4 SCC 172 and Jaswant

Singh v. State of Punjab; AIR 1958 SC 124. It was also

submitted that PW1 has criminal antecedents and had a motive to

falsely implicate the appellant/accused, as the latter had earlier

taken preventive action against the former under Section 107 and

Section 151 of the Cr.P.C. Yet, another argument that was raised

was that there is no link evidence to prove the prosecution case.

Evidence is lacking as to how and where the seized currency notes

were kept in the station or in whose custody the same was or the

manner in which it was kept in the station. It was also pointed out

that there has been an inordinate delay in sending the material

objects to the FSL for examination, which delay has also not been

explained.

12. Per contra, it was submitted by the learned Special

Public Prosecutor for the respondent/CBI that the essential

ingredients of demand and acceptance of illegal gratification stand

established primarily through the testimony of the PW1, which is

duly corroborated by PW7, a member of the trap team. It was

argued that minor discrepancies regarding the quantum of the

initial demand do not affect the substratum of the prosecution case,

particularly when the testimony was recorded after a considerable

lapse of time. The learned prosecutor submitted that the law does

not require corroboration of the complainant's testimony as a

matter of rule and that the complainant in a trap case is not an

accomplice. Reliance was placed on the dictum of C.M. Sharma

v. State of A.P.; (2010) 15 SCC 1, wherein it was held by the

Apex Court that if the complainant's testimony is found reliable, it

can form the sole basis of conviction. It was submitted that, even if

the panch witnesses have turned hostile on certain aspects, their

entire testimony does not become unreliable or unusable. PW4 and

PW5 admitted several material facts including the laying of the

trap, the presence of the appellant at the spot, the recovery of

tainted currency notes, and the conduct of post-trap proceedings.

In this regard, reliance was placed on S.C. Goel v. State; (2016)

13 SCC 258, wherein it was held that the evidence of a hostile

witness can be relied upon to the extent it supports the prosecution

case.

12.1 The learned prosecutor further submitted that the

phenolphthalein test results, which were positive in respect of the

hand as well as the jacket pocket of the appellant, stand

conclusively proved through the testimony of PW3, the CFSL

expert, fully corroborate the prosecution case regarding acceptance

of illegal gratification. It was argued that the site plan

demonstrates that PW7 was positioned close enough to hear the

demand being made, and his testimony is reliable and inspires

confidence, there being no suggestion of prior animosity or motive

for false implication. On the issue of sanction for prosecution, it

was submitted that PW2, the sanctioning authority, categorically

deposed that he had perused the relevant material before according

sanction, and once such application of mind is stated on oath, the

legal requirement stands satisfied, as held in Prakash Singh Badal

v. State of Punjab; (2007) 1 SCC 1. It was further contended that

the recovery memo, search memo, site plan, and panchnamas have

been duly proved and corroborated by the prosecution witnesses.

Panchnamas constitute corroborative evidence under Section 157

of the Indian Evidence Act, as held in Yakub Abdul Razak

Memon v. State of Maharashtra; (2013) 13 SCC 1. There is no

infirmity in the impugned judgement, calling for an interference by

this court, argued the prosecutor.

13. Heard both sides and perused records.

14. The only point that arises for consideration in the present

appeal is whether there is any infirmity in the impugned judgement

calling for an interference by this court.

15. I shall first briefly refer to the evidence on record relied

on by the prosecution in support of the case. The initial demand in

this case is alleged to have taken place on 08.11.1995 and the trap

laid on 09.11.1995. PW1 submitted a written complaint, that is,

Exhibit PW1/A on 09.11.1995 in the office of the CBI in which he

has stated thus: - He is engaged in the business of sale and

purchase of motor car and is also the owner of a Health Center

named 'Kapil Body Temple'. The appellant/accused, ASI, posted at

Police Post Shakur Basti, Saraswati Vihar Police Station, at the

behest of his elder brother, Tara Chand, constantly threatened and

harassed him for no reason. On 14.07.1995, at the request of Tara

Chand, the appellant/accused detained PW1 and his coach in a

false case. On 08.11.1995 at approximately 7:00 PM, the

appellant/accused came to his Health Centre (Kapil Body Temple)

and threatened him stating that if he did not pay ₹10,000/- as bribe

by 09.11.1995 between 06:00 PM and 08:00 PM, the former would

(Bad Character/History Sheeter). Upon PW1 expressing his

inability to pay, the appellant agreed to take ₹5,000/- on

09.11.1995 and stated that the remaining ₹ 5,000/- should be paid

later. According to PW1, he is a law-abiding citizen (........ ाथ

एक अ ा नाग रक है ........) and that he does not wish to pay bribe,

and therefore sought necessary legal action against the appellant.

15.1 PW1, when examined before the trial court, deposed

that his relations with his brother Tara Chand was strained. In July

1995, on the complaint of his brother, the appellant/accused

arrested him and his coach under Section 107 and Section 151

Cr.P.C. They were released by the ACP after two or three

hearings. According to PW1, even thereafter the appellant/accused

continued to visit his Health Centre along with constables and

threatened to put him behind bars. In the 10th or 11th month of

1995, the appellant/accused called him to 'Standard Sweet Shop',

Rani Bagh and demanded ₹20,000/- as illegal gratification, which

was reduced to ₹5,000/- upon his expressing inability. At this

juncture, the prosecutor is seen to have sought permission to

"cross-examine" PW1 on the ground that he had resiled from the

statement made to the CBI. The request was allowed and on being

further examined by the prosecutor, admitted that on 08.11.1995

the appellant/accused visited his Health Centre in the evening and

demanded that ₹10,000/- be paid on 09.11.1995 between 6:00 PM

and 8:00 PM, failing which he would be implicated in false cases.

PW1, then corrected himself by stating that the demand was for

₹20,000/- and not ₹10,000/-.PW1 further deposed that he could

neither admit nor deny whether the initial demand was made on

08.11.1995 as he was unable to recall the date. He cannot recollect

whether his statement had been recorded by the CBI during

investigation. PW1 deposed that he could not admit or deny

whether he had stated to the CBI that on 08.11.1995 the

appellant/accused had visited his Health Centre and demanded

₹10,000/- to be paid on 09.11.1995. He further deposed that he had

told the appellant/accused that as he was not that well off, he was

unable to pay the amount demanded and had suggested to the latter

that he would make an initial payment of ₹ 5,000/-, which was

agreed to by the latter. PW1 also deposed that the

appellant/accused had told him that the latter would come to his

Health Centre on 09.11.1995 between 06:00 PM and 08:00 PM or

he would intimate the place on telephone. In the morning of

09.11.1995, he went to the office of the CBI around 10:00 or 11:00

AM and submitted his written complaint, Ex. PW1/A.

15.2 PW1 also deposed regarding the manner in which the

trap was arranged and the officers involved in it. He further

deposed that the trap party left the office of the CBI at about 5:00

PM and reached Rani Bagh after about 1 ¹/₂ hours. They went to

his Health Centre and waited. Then, a telephone call was received

from the appellant/accused who directed him to be at 'Standard

Sweet Shop', Rani Bagh with the demanded amount. Pursuant to

the call, he along with the members of the trap team left for the

sweet shop. On reaching the shop, he and PW5 stood at the door of

the shop. At about 7:05 PM, the appellant arrived on his scooter.

As directed by the appellant/accused, they went upstairs and sat at

a table. The other members of the trap team also took their

respective positions. The appellant/accused asked him whether the

full amount had been brought, he answered in the affirmative. The

appellant told him that the remaining amount should be paid within

two days and assured him that there would be no trouble thereafter.

According to PW1, as directed by the appellant/accused they came

downstairs, the appellant sat on his scooter, started it and asked for

the money. PW1 then handed over the currency notes, which the

appellant accepted with his left hand and put it in the left pocket of

his jacket, whereupon PW5 gave signal to the CBI team. PW7, a

member of the trap team caught hold of the appellant's left wrist.

The appellant then took out the currency notes from his jacket with

his right hand and threw them on the road. CBI official, Rajbir

Singh then caught the accused. The officer disclosed his identity.

The appellant/accused remained silent for some time and then said

that he may be pardoned for the wrong done by him. PW1 further

deposed regarding the formalities that were complied with by the

CBI team thereafter, including the fact that the carbonate solution

turned pink when the appellant/accused was made to dip his left

hand in the same. The inner lining of the pocket of the garment

worn by the appellant/accused also turned pink on being dipped in

the solution.

15.3 PW1 further deposed that he does not recall whether he

had stated in his complaint that the demand was for ₹20000. He

admitted that his statement that the accused on 09.11.1995 had

visited his Health Centre between 6:00 PM to 8:00PM and had

demanded an amount of ₹10000/- to ₹20000/- is incorrect.

According to PW1, as a matter of fact, the appellant/accused had

come to his Health Centre on 08.11.1995.However, he does not

remember the time at which the accused had come to his Health

Centre. But, he had come during the evening hours.

16. In the cross-examination, PW1 denied the suggestion that

the accused was sitting with the owner of the shop namely, PW6

on the relevant day. PW1 deposed that he does not know if Sanjay

Yadav was the devar of his niece.PW1 denied the presence of

Sanjay Yadav on the date of the incident. He further deposed that

while he and the accused were sitting at a table inside the sweet

shop, he did not offer money to the accused and that the accused

had not demanded the money at that time. He denied the

suggestion that the accused had never demanded the money while

sitting on the scooter. He further denied the suggestion that he had

thrust the currency notes in the left pocket of the jacket of the

accused. He also denied the suggestion that the accused had

questioned his act and had thereafter had thrown the notes on the

ground. He admitted that when the accused was apprehended,

many persons had gathered there. He also denied the suggestion

that the accused had in fact, informed the CBI officials that he had

forcibly thrust the notes in the pocket of the accused and in protest,

the latter had taken out the notes and thrown the same on the

ground.

17. PW2, the then DCP, (North-West district, Delhi),

deposed that he had accorded sanction for prosecution, vide Ext.

PW2/A order and that before according sanction, he had perused

the materials particularly, the seizure memo as well as the 161

statements of the witnesses. In the cross examination, PW2

admitted that he could not recall whether he had received a written

request from the CBI for sanction; that he cannot recall whether a

draft sanction order had been placed before him; that he had not

mentioned the date on the sanction order due to inadvertence and

that he does not recollect the names of the witnesses whose

statements he had considered before sanction was granted.

18. PW3 deposed that on 07.06.1996, he had received three

sealed bottles with the seals of the CBI intact and that the official

specimen was enclosed along with a forwarding letter from the SP,

CBI, ACB New Delhi, which was received at the office of the

CFSL. The contents of all the three bottles were chemically

analysed in the laboratory and on analysis exhibit marked RHW,

LHW and LJPW gave positive test for phenolphthalein and sodium

carbonate. PW3 deposed that Ext. PW3/A is the report prepared by

him. The worksheet was prepared at the time of analysis of the

exhibits in the case. The writings in the worksheet are in the

handwriting of his assistant who had taken down the same on his

dictation. He denied the suggestion that the chemical analysis was

not done under his direct supervision and that he had signed the

worksheet without any supervision whatsoever.

19. PW4, Superintendent, (Vigilance NDMC, Palika Kendra

New Delhi) deposed that on 09.11.1995, he along with PW5 went

to the office of the CBI as directed by the Director(Vigilance). At

the office of the CBI, he was introduced to PW1 and Ext. PW1/A

complaint was shown to them. One Sanjay Kumar Yadav was also

present along with PW1. After ascertaining the genuineness of the

complaint, they made arrangements for the trap. PW5 was directed

to act as a shadow witness and remain with PW1 and also directed

to overhear the conversation between the accused and PW1. PW5

was also directed to give signal by scratching his head as soon as

the transaction was completed. At about 5:00 PM, they left the

office of the CBI and reached the Health Centre of PW1. Then

Sanjay Yadav telephoned somebody which he could not hear.

From the Health Centre, they left for the sweet shop at Rani Bagh.

After reaching there, PW1, PW5 and Sanjay Yadav went inside the

shop at which time he stood in front of the shop. The other

members of the team took suitable positions in the shop. PW1,

PW5 and Sanjay Yadav was present in the shop for about 30

minutes. Thereafter, PW5 came out and informed the team that the

accused had not taken the money from PW1. At this juncture, the

prosecutor sought the permission of the Court to 'cross examine'

him as he was suppressing the truth, which request is seen allowed

by the trial court. On further examination by the prosecutor, PW4

deposed that he had been told by the CBI officers that the presence

of Sanjay Yadav would not be shown in the records and that he

will have to cooperate with them to the said extent. He admitted

that PW1 had informed them that the accused had called him to

Standard Sweet Shop with the money. He also admitted that PW1

and PW5 had been directed to stand outside the sweet shop and

that the other members of the team had taken suitable positions.

PW4 further deposed that he had not seen the said three persons

going inside the sweet shop, but thereafter he deposed that he had

seen PW1, PW5 and the accused going inside the sweet shop.

About 15 to 20 minutes thereafter, he saw PW1, PW5 and the

accused coming outside the sweet shop. According to him, PW1

and PW5 were not there, when the accused sat on his scooter and

started the same. According to PW4, as a matter of fact, PW1 and

the panch witness (PW5) came to them and told that the accused

had not accepted the money. He further deposed that PW5 had not

given any signal. PW1 and the panch witness informed the

Inspector, CBI and team that the trap had not materialised, and so

the CBI officials asked the members to return. At this time, the

appellant/accused started his scooter and Sanjay Yadav sat on the

back seat. Thereafter, they heard a commotion. When they went

and looked, they saw Sanjay Yadav and the accused grappling and

the scooter of the accused was lying on the ground. When the

accused was apprehended, he noticed that the currency notes were

lying on the ground. He denied the suggestion that on receipt of

signal, the trap party had reached near the scooter of the accused

and the accused had been apprehended with the currency notes.

PW4 admitted that he had picked up the currency notes from the

ground. However, he denied the suggestion that the left hand of the

accused was held by Sub Inspector Alok Kumar (PW7) when the

accused had taken out the notes from his jacket pocket and threw it

on the ground. He also denied the suggestion that when the

accused was challenged by the trap team, the accused had begged

pardon. PW4 further admitted that the left hand of the accused

when dipped in the solution of sodium carbonate had turned pink.

He also admitted that when the pocket of the jacket of the accused

was dipped in the solution, the same had also turned pink.

20. In the cross examination, PW4 deposed that PW6 was

present at the time of the post raid proceedings.

21. PW5, Superintendent (Vigilance), NDMC New Delhi

deposed that he was also in the trap team and that he had been

directed to remain with PW1 with the direction to overhear the

conversation between PW1 and the accused. On reaching Rani

Bagh, they went to the Health Centre of PW1. PW1 was talking to

somebody on the telephone. From the Health Centre of PW1, they

went to the sweet shop. PW5 further deposed that they had

proceeded to the sweet shop because PW1 told them that the

accused had directed him to go to the said shop. On reaching the

shop, they went upstairs. He took a seat on one of the tables while

PW1 and his companions took their seats on the adjacent table.

While he was taking coffee, PW1 probably might have gone

downstairs. After a few minutes, PW1 came upstairs along with

the accused. They sat on the table where PW1 was sitting. While

they were talking, he heard PW1 telling the accused that he was

being harassed by the police. Then the accused assured him that

there will be no further trouble, at which time, PW1 took out

currency notes from his pocket and tried to give it to the accused

through his companion. However, the same was not accepted by

the accused as the latter was facing him. After that PW1, his

companion and the accused went downstairs and so he followed

them. After coming down, the accused started his scooter and then

the companion of PW1 sat on the pillion seat of the scooter. The

accused started his scooter and moved for about a distance of

about 15 to 20 shops. He thought that the trap would not succeed.

Then he heard -'Pakad Liya Pakad Liya'. When he rushed to the

spot, he saw that notes were lying on the ground and the accused

being arrested. At this juncture, the prosecutor sought the

permission of the court to 'cross examine' which request was

allowed by the trial court.

21.1 On further examination, PW5 admitted that when he

entered the office, he heard PW 1 talking to someone on the

telephone. PW1 told him that it was accused on the phone and that

he should reach the sweet shop with the money. He denied the

suggestion that on reaching the sweet shop he and PW 1 had been

directed to stand at the door of the shop, but he admitted that some

of the members of the trap team had taken positions around. PW 5

denied that the accused had arrived at the shop at about 7 PM on

his two-wheeler. He denied having made such a statement to the

Investigating Officer. He denied the suggestion that the accused

was received by PW1 at the entrance of the shop; that they had

exchanged greetings and then as directed by the accused, had gone

upstairs. According to PW 5,these conversation did not take place

in his presence. PW 5 further deposed that inside the shop he did

not hear any talk about the money between the accused and PW 1.

He only heard PW1 saying that he was being harassed by the

police and the accused saying - 'Chinta mat karo'. He also denied

having stated to the police that he had seen PW 1 handing over ₹

5000 to the accused, who in turn had accepted the same and put it

in the left pocket of his jacket. He also denied having given any

signal to the raiding team. PW5 admitted that PW 4 panch witness,

had picked up the notes from the ground. He denied the suggestion

that he had been won over by the accused and hence the reason

why he had become hostile to the prosecution case.

22. PW6, Proprietor, 'Standard Sweet Shop', deposed that on

09.11.1995 PW 1 along with 5 to 6 persons had come to his shop

and later the appellant also arrived. He observed that something

was being offered to the appellant by PW 1, but the appellant

refusing it. PW6 denied that the appellant was arrested at or in

front of his shop. According to him, Sanjay Yadav, the companion

of PW1 was offering something to the accused and the latter

refused to accept it. At this juncture, the prosecutor sought the

permission of the court for 'cross examining' the witness which

request was allowed by the trial court. On further examination,

PW6 denied the suggestion that he had stated to the CBI that the

accused had accepted the bribe from PW 1 in front of his shop.

During cross examination PW6 deposed that on hearing a

commotion outside his shop about 15 to 20 shops away, he saw

currency notes on the ground and Sanjay Yadav grappling with the

appellant. While the appellant was protesting, money was being

put into his pocket. PW6 admitted that when the CBI officials

brought the accused into the shop and wanted to do some

paperwork inside his shop, he protested to the same on the ground

that his business was being affected. But the CBI officials

threatened him that he would also be implicated if he refused

permission and so he kept silent.

23. PW7, Sub-Inspector Anti-corruption, Delhi, another

member of the trap team supported the prosecution case. In the

cross examination, PW7 deposed that he does not recollect the

name of the person who had brought the chemical powder from the

malkhana or the person who had taken back the residue powder of

phenolphthalein and deposited the same in the malkhana.

24. Finally, PW8, the Investigating Officer, in this case

deposed regarding the various steps taken by him during the course

of investigation.

25. Now coming to the defence evidence. DW1, Constable,

Police Post, Rani Bagh, deposed that on 09.11.1995 he was on

duty as Rojnamcha munshi (duty officer) from 8:00AM to

8:00PM. At about 6.30 PM, he received a telephone call from one

Ashok Yadav of Kapil body temple (PW1) enquiring about the

appellant. He informed the caller that the appellant was not present

in the police post and that he had gone to 'Standard Sweet Shop' to

meet his friend Niranjan Singh Chawla (PW 6).

26. DW2 produced a copy of crime no. 57/98, that is, Ext.

DW 2/A alleging the commission of offences punishable under

Section 308, 324 and 34 IPC against Ashok Yadav (PW 1) and two

others. In the cross examination, DW2 deposed that the aforesaid

crime had been investigated by SI Sanjeev Kumar and

subsequently by SI Rajesh Kumar.

27. DW3 produced a copy of crime no.748/92 alleging

commission of offences under Sections 506, 323 read with Section

34 against Ashok Kumar Yadav (PW1) which was marked as Ext.

DW3/A. In the cross examination, DW3 deposed that the accused

in the said case had been acquitted.

28. DW4 deposed that that he was unable to produce the file

relating to file relating to the proceedings by which the officer

concerned had granted sanction for prosecution of the accused.

According to him, the file was not in his custody.

29. DW5 deposed that the file relating to grant of sanction

was not traceable.

30. I will first deal with the argument advanced by the

learned Senior counsel for the appellant/accused that that the

sanction order is defective/invalid. In Jaswant Singh v. State of

Punjab, AIR 1958 SC 124, relied on, it has been held that it

should be clear from the Form of the sanction that the sanctioning

authority considered the evidence before it and after consideration

of all the circumstances of the case sanctioned the prosecution.

Therefore, unless the matter can be proved by other evidence, the

sanction itself should refer or indicate that the sanctioning

authority had applied its mind to the facts and circumstances of the

case.

31. In this case, PW2 has quite categorically deposed that

he had gone through the seizure memo as well as the Section 161

statements of the witnesses before the sanction order was issued.

PW2's testimony has not been discredited in any way and

therefore, I do not find any reasons to disbelieve his version.

Hence, the argument that the sanction order is not valid cannot be

accepted.

32. It is true as pointed out by the learned Senior counsel that

there are certain inconsistencies in the statement of the prosecution

witnesses. I have already referred to their testimony in detail.

However, a whole reading of the entire materials on record would

only show that the inconsistencies are minor and not quite material

and they have not affected the core prosecution case. I conclude

so, because coupled with the evidence of the prosecution, the

appellant/ accused admits that he was at the sweet shop at the

relevant time. DW1, one of the witnesses of the accused, seems to

be more loyal than the king. According to the accused, he went to

the said shop to meet PW1 as the latter is an acquittance. But DW1

went one step ahead and put forward a case that even the

appellant/accused does not have. According to DW1, the

appellant/accused had gone to the said sweet shop to meet PW6.

Neither the accused nor PW6, who is partially hostile to the

prosecution has such a case. Why did the appellant/accused go to

meet PW1 at a private place? No explanation is forth coming on

this aspect. Admittedly PW 1 had criminal antecedents as two

crimes had been registered against him. In such circumstances,

what was the necessity for the appellant/accused to go and meet

him at a private place? This coupled with the remaining evidence

on record clearly establishes the prosecution case. Though PW 4

and 5, the panch witnesses, are partially hostile, they have

admitted certain material aspects of the prosecution case to which

also I have already referred. Merely, because the witnesses are

partially hostile is no ground to reject their entire testimony. It is

settled that the testimony of hostile witnesses can be looked into to

the extent it supports the prosecution case, provided the same is

credible. (Mohan Lal v. State of Punjab; AIR 2013 SC 2408,

Ramesh Harijan v. State of U.P.; AIR 2012 SC 1979, Prithi v.

State of Haryana; 2010 8 (SCC) 536, Lella Srinivasa Rao v.

State of A.P.; AIR 2004 SC 1720, Koli Lakhmanbhai

Chanabhai v. State of Gujarat; AIR 2000 SC 210).

33. It is true that no materials have come on record as to how,

when and in what manner the material objects were preserved or

the person in whose custody the same were till they were sent to

the laboratory for examination. It is also true that there has been

delay in forwarding the material objects for examination. It is

settled that mere delay is no reason to disbelieve or discard the

entire prosecution case, unless materials come on record to doubt

the prosecution case. The appellant/accused during the trial, never

had a case that the material had objects had been tampered with or

that they were not kept safely till it reached the laboratory.

WhenPW8 the Investigating Officer was examined, this aspect is

not seen challenged. Therefore, though there is delay in the

material objects reaching the laboratory, in the light of the

remaining materials on record, which evidence has not been

discredited in any way, I find that the delay has not adversely

affected the prosecution case.

34. The materials on record coupled with the conduct of the

accused in being personally present at the aforesaid sweet shop in

the company of PW1, for which explanation whatsoever has been

given by him, clearly establishes the prosecution version and

therefore, I do not find any infirmity in the impugned judgment

calling for an interference by this Court.

35. Before I conclude, I would like to refer to certain

procedure that has been followed by the trial court which does not

appear to be correct. The learned Senior Counsel for the

appellant/accused during the course of arguments referred to

certain 'contradictions and omissions' brought out in the testimony

of PW1. I refer to one among the few to which my attention was

drawn to and the same reads -

"............I cannot admit or deny if I stated to Inspector Surinder Kumar Bhati that on 8.11.95 ASI Baldev Singh visited my health centre and told me to pay bribe of Rs. 10,000/- on 9.11.95 in between 6.00 to 8.00 PM. (Witness is confronted with portion A to A of his alleged statement mark. A, where it is so recorded).............."

When this was pointed out, this Court asked the learned

counsel whether the procedure for proving a contradiction has

been followed and as to whether the Investigating Officer was

asked about the same. The learned Senior Counsel submitted that

the same was unnecessary and that the procedure contemplated

under the second part of Section 145 of the Evidence Act has been

complied with and therefore, the contradiction stands proved. I

disagree.

36. The statements made under Section 161 are statements

made to the police during the course of investigation and the same

cannot be used except for the purpose stated in the proviso to

Section 162 (1) Cr.P.C. Under the proviso to Section 162 (1)

Cr.P.C., such statements can be used only for the purpose of

contradicting a prosecution witness in the manner indicated in

Section 145 of the Evidence Act and for no other purpose. They

cannot be used for the purpose of seeking corroboration or

assurance for the testimony of the witness in Court. (See

Tahsildar Singh v. State of U.P., AIR 1959 SC 1012; Satpal v.

Delhi Administration, 1976 (1) SCC 727 and Delhi

Administration. v. Lakshman Kumar 1985 KHC 741: (1985) 4

SCC 476).

37. Now, the question is what constitutes a contradiction or

an omission amounting to contradiction and how can the same be

proved? As held in Tahsildar Singh v. State of U. P., AIR 1959

SC 1012: 1959 KHC 577 : 1959 CriLJ 1231, the object of

Section 162 Cr.P.C., as the history of its legislation shows and the

decided cases indicate is to impose a general bar against the use of

statement made before the police and the enacting clause in clear

terms says that no statement made by any person to a police officer

or any record thereof, or any part of such statement or record, be

used for any purpose. The words are clear and unambiguous. The

proviso engrafts an exception on the general prohibition and that

is, the said statement in writing may be used to contradict a

witness in the manner provided by S.145 of the Evidence Act.

While it enacts an absolute bar against the statement made before a

police officer being used for any purpose whatsoever, it enables

the accused to rely upon it for the limited purpose of contradicting

a witness in the manner provided by S.145 of the Evidence Act by

drawing his attention to parts of the statement intended for

contradiction. It cannot be used for corroboration of a prosecution

or a defence witness or even a Court witness. Nor can it be used

for contradicting a defence or a Court witness. Shortly stated, there

is a general bar against its use subject to a limited exception in the

interest of the accused, and the exception cannot obviously be used

to cross the bar. Further, the contradiction under Section 162 is

between what a witness asserted in the witness box and what he

stated before the police officer, and not between what he said he

had stated before the police officer and what he actually made

before him. The procedure for contradicting a witness is by resort

to Section 145 of the Evidence Act. S.145 of the Evidence Act is

in two parts : the first part enables the accused to cross examine a

witness as to previous statement made by him in writing or

reduced to writing without such writing being shown to him; the

second part deals with a situation where the cross examination

assumes the shape of contradiction: in other words, both parts deal

with cross examination; the first part with cross examination other

than by way of contradiction, and the second with cross

examination by way of contradiction only. Resort to S.145 would

only be necessary if the witness denies that he made the former

statement. In that event, it would be necessary to prove that he did,

and if the former statement was reduced to writing, then S.145

requires that his attention must be drawn to those parts which are

to be used for contradiction. But that position does not arise when

the witness admits the former statement. In such a case all that is

necessary is to look to the former statement of which no further

proof is necessary because of the admission that it was made. The

procedure prescribed is that, if it is intended to contradict a witness

by the writing, his attention must, before the writing can be

proved, be called to those parts of it which are to be used for the

purpose of contradicting him. The Apex Court has explained the

procedure by way of an illustration also: -'A' says in the witness

box that 'B' stabbed 'C'; but before the police he had stated that

'D' stabbed C. His attention can be drawn to that part of the

statement made before the police which contradicts his statement

in the witness box. If he admits his previous statement, no further

proof is necessary; if he does not admit, the practice generally

followed is to admit it subject to proof by the police officer.

38. I also refer to a Division Bench decision of the High

Court of Kerala in State of Kerala v. Thomas, 2005 KHC 1823:

2005 (4) KLT SN 103 wherein it was held thus- S.162 Cr.P.C..

deals with the use of statements in evidence. The statements given

by any person and reduced to writing under S.161 Cr.P.C. by a

police officer can be used only to contradict the statement of the

witness. Under the Evidence Act, a former statement made by a

witness can be used to contradict him, to impeach his credit, to

corroborate him, or to refresh his memory. S.162 Cr.P.C. imposes

an absolute bar to the use of the statements. The intention behind

S.162 Cr.P.C.. is to protect the accused from being prejudicially

affected by any dishonest or questionable methods adopted by an

overzealous police officer. Under S.145 of the Evidence Act, proof

of statements follows the putting up of it to the witness. S.162

Cr.P.C.. states that a previous statement to the police can be used

to contradict a witness if it is duly proved. A combined reading of

S.161 and 162 Cr.P.C.. shows that the attention of the witness is

tobe called to the previous statement before the same can be

proved. If the witness admits the previous statement or explains

the discrepancy or contradiction, it obviously makes it unnecessary

for the statement thereafter to be proved by marking it. If the

statement still requires to be proved, that can be done later by

calling the police officer before whom the statement was made. It

is well settled position of law that before using the statement, the

witness must be afforded a reasonable opportunity of explaining

the contradictions, after his attention has been drawn to such

statements, in a fair and reasonable manner. The entire statement

recorded under S.161(3) Cr.P.C.. is not admissible in evidence. So,

the entire statement cannot be marked as an exhibit. The correct

procedure to contradict a witness is to draw his attention to the

relevant part of the contradictory statement which he had made

before the Police Officer and to question him whether he did make

that statement. If he replies in the affirmative, that admission

establishes the contradiction. When the particular sentence or

assertion in the statement under S.161 Cr.P.C.. is put to the witness

it must be marked by being underlined or enclosed in a circle and

exhibited. That admission is to be recorded in the deposition. If he

denies that part of the statement, that is to be proved in accordance

with the provisions of the Evidence Act. If he denies having made

such a statement or states that he does not remember having made

the assertion or spoken the sentence, the officer who recorded the

statements will have to be called to prove that he had made or

spoken it. When a statement is put to a witness, he may admit it.

He may deny having made such a statement or he may admit a part

or portion of the statement and deny the rest of it. The admission if

it amounts to a contradiction is to be recorded and it needs no

further proof and rest of it alone is to be proved. He may also plead

lack of memory and state that that he does not remember. If the

witness states that he does not remember, then also the statement

has to be properly proved. An omission may amount to a

contradiction. Before the police a witness may state that 'A' and

'B' committed the murder. But in court he may state that 'A, B and

C' took part in the commission of the offence. That omission is in

the form of a positive contradiction. If the witness admits that he

did not state the name of 'C' before the police officer, that

admission proves the omission. But if the witness asserts that he

had stated the name of 'C' also to the police officer, that omission

is to be proved by putting that omission to that officer during his

examination. He must be asked whether a certain statement was

made by the witness before him. The records must show that the

statement of the witness recorded under S.162 Cr.P.C.. was read

out to him and his attention was drawn to the non-existence of a

certain statement therein.

39. Further, it is seen that when some of the prosecution

witnesses did not fully support the prosecution case, the Prosecutor

sought permission of the Court to 'cross-examine' them, which

permission was granted. The request and the Order of the trial

court reads-

"(at this stage, ld. prosecutor requests for permission to cross examine the witness on the ground that he is resiling from the statement made to CBI. Heard. Request is allowed.) XXXXXXX by Shri........., ld. PP for CBI"

This is also wrong. Here, it would be apposite to refer to

Sections 137 and 138 of the Indian Evidence Act. Section 137

reads-

"137. Examination-in-chief.

The examination of a witness by the party who calls him shall be called his examination-in-chief.

Cross-examination - The examination of a witness by the adverse party shall be called his cross-examination. Re-examination. - The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination."

Section 138 reads -

"138. Order of examinations.

Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination. - The re-examination shall be directed to the explanation of the matters referred to in cross- examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter."

(Emphasis supplied)

The Evidence Act, nowhere provides for 'declaring a witness

hostile' nor allows a person to 'cross-examine' his own witness.

Whatever be the form and nature of the questions put to the

witness, examination of a witness by the person who calls him

is 'examination-in-chief' if it is before the examination of that

witness by the adversary, and re-examination' if the same is

after the adversary examines him. 'Cross-examination' means

examination of the witness by the adverse party. To say that

one may cross-examine his own witness is, in the face of the

definition of the word 'cross-examination' as aforesaid, a

contradiction in terms. S.142 of the Evidence Act bars leading

questions or questions suggestive of answers in examination-

in-chief and re-examination. Under S.154 Evidence Act,

however, the court may allow a person to put to his own

witness such questions as might be put in cross-examination

by the adverse party. But, grant of such permission does not

mean that the witness is 'hostile' or 'unfavourable' or 'adverse

witness' and therefore, a liar. Under S 146 of the Evidence

Act, when a witness is cross-examined questions which tend to

test his veracity, to discover who he is and what is his position

in life, and to shake his credit may be asked. With permission

granted under S.154, such questions can be put in

examination-in-chief also. Again, under S.155 of the Act, with

the consent of the court one may impeach the credit of his own

witness in the manner provided therein one of which is by the

proof of former statements inconsistent with any part of his

evidence which is liable to be contradicted. S.145 of the Act

says that if a previous statement in writing or reduced to

writing is intended to contradict a witness, before the writing

is proved, his attention is to be called to the portions intended

to be used for that purpose. However, it should be remembered

that the only object of cross-examination of a witness or

putting in examination-in-chief with the permission of the

court questions of the kind allowed only in cross-examination,

is not to discredit the witness but also to bring out evidence

which would advance the case of the cross-examiner or the

person calling the witness, as the case may be(See Janardhan

v. State of Kerala 1978 KHC 136: 1978 KLT 546).

39.1 In Sat Paul v. Delhi Administration, AIR 1976 SC294,

305, the Apex Court has highlighted this aspect when it said:

"The grant of such permission does not amount to an adjudication by the

court as to the veracity of the witness. Therefore, in the order granting such

permission, it is preferable to avoid the use of such expressions, such as

"declared hostile", "declared unfavourable", the significance of which is

still not free from the historical cobwebs which, in their wake bring a

misleading legacy of confusion, and conflict that had so long vexed the

English Court".

40. Therefore, when a witness does not support the case of

the person who called him as a witness, in the case on hand the

prosecution, the prosecutor can seek the permission of the court to

put questions as put in cross examination, which power is

contained under Section 154(1) of the Evidence Act, which reads -