[Cites 19, Cited by 0]

Delhi High Court

Rajinder Kumar vs C.B.I on 16 March, 2026

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                    Judgment Reserved on: 10.03.2026
                                                               Judgment pronounced on:16.03.2026

                          +      CRL.A. 733/2003

                                 RAJINDER KUMAR                                      .....Appellant

                                                      Through:      Mr. Yudhishtar Kahol with Mr.
                                                                    Nikhil Singh, Mr. Kunal Kahol,
                                                                    Advocates along with appellant in
                                                                    person.

                                                      versus
                                 C.B.I.                                              .....Respondent


                                                      Through:      Ms. Rajni Gupta, SPP for CBI with
                                                                    Mr. Shivender Gupta, Advocate.

                          CORAM:
                          HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
                                            JUDGMENT

CHANDRASEKHARAN SUDHA, J.

1. This appeal under Section 374 of the Code of Criminal

Procedure, 1973 (the Cr.P.C.) has been filed by the first accused

(A1) in C.C.No. 49/1994 on the file of the Court of Special Judge,

Delhi challenging the conviction entered and sentence passed

against him for the offences punishable under Sections 7 and 13(2)

of the Prevention of Corruption Act, 1988(the PC Act)read with

Section 120-B of the Indian Penal Code, 1860 (the IPC).

2. The prosecution case is that on 08.08.1994, A1, while

working as a Junior Clerk in the District Office of Delhi Electric

Supply Undertaking (DESU) at Radhu Palace, Delhi, entered into

a criminal conspiracy with the second accused (A2), who was

running a pan shop outside the DESU office, to obtain illegal

gratification from PW1 for showing favour in adjusting the

previous credit relating to an electricity connection installed at the

PW1's residence. Pursuant to the said conspiracy, on 08.08.1994 at

about 01.45 p.m., A1 demanded ₹500/- from PW1 and directed

him to hand over the amount to A2. PW1 accordingly handed over

the amount to A2, who accepted it and passed it to A1, who

accepted the same as illegal gratification by abusing his official

position.

3. On 08.08.1994, PW1 lodged a complaint, that is, Ext.

PW1/B, with the Anti-Corruption Branch, New Delhi, based on

which, RC No. 51(A)/94/CBI/ACB/N.D.,FIR was registered

alleging commission of the offence punishable under Section 7 of

the PC Act.

4. PW9, Deputy Superintendent of Police, Anti-

Corruption Branch, New Delhi, conducted investigation into the

crime and on completion of the same, submitted the charge-sheet/

final report alleging commission of the offences punishable under

the Section 120-B IPC read with 13(2) read with 13(1)(d) of the

PC Act.

5. Ext. PW2/A Sanction Order for prosecuting A1 was

accorded by PW2, Additional General Manager (A), DESU.

6. On receipt of summons when the accused persons

appeared before the trial court, the Court after complying with the

formality contemplated under Section 207 Cr.P.C, on 18.04.1995,

framed a Charge under Section l20-B IPC read with Sections 7 and

13(2) r/w 13(l)(d)of the PC Act against both the accused persons

and Section 7 and 13(2) r/w (13)(l)(d) of PC Act against A1, which

was read over and explained to them to which they pleaded not

guilty.

7. On behalf of the prosecution, PW1 to PW9 were

examined and Ext. PW1/A - F, Ext. PW2/A, Ext. PW3/A - B, Ext.

PW4/A - C, Ext. PW6/A - B, Ext. PW8/A, Ext. PW10/A - I and

Ext. CW1/A - C were marked in support of the case.

8. After the closure of the prosecution evidence, the

accused persons were questioned under Section 313(1)(b) Cr.P.C.

regarding the incriminating circumstances appearing against them

in the evidence of the prosecution. The accused persons denied all

those circumstances and maintained their innocence.A1 submitted

that he has been falsely implicated in the present case by PW6 on

account of personal enmity with his maternal uncle (PW8) and

himself, in connivance with certain CBI officials.

9. No oral or documentary evidence was adduced by the

accused persons. Subsequently, A2 absconded during the pendency

of the trial and was therefore declared a proclaimed offender.

10. On consideration of the oral and documentary evidence

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

impugned judgment dated 21.10.2003, held A1 guilty of the

offences punishable under Section 120B IPC read with Sections 7

and 13(2) read with Section 13(1)(d) of the PC Act, as well as

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

Act. Accordingly, A1 has been sentenced to undergo rigorous

imprisonment for one year with fine of ₹2,500/- under Section

120B IPC and in default of payment of fine to further undergo

imprisonment for one month; rigorous imprisonment for one year

with fine of ₹2,500/- under Section 7 of the PC Act and in default

of payment of fine to further undergo imprisonment for one month;

and rigorous imprisonment for one year and six months with a fine

of ₹5,000/- under Section 13(2) read with Section 13(1)(d) of the

PC Act and in default of payment of fine to further undergo

imprisonment for two months. The sentences have been directed to

run concurrently. Aggrieved, A1 has preferred the present appeal.

11. The learned counsel appearing for the appellant/A1

submitted that PW1 had completely turned hostile and has not

supported the prosecution version. PW1, in his cross examination,

categorically stated that the bribe amount was demanded by one

Raj Kumar, who had directed that the money be handed over to the

pan vendor, namely, A2, and that the demand was not made by

A1.The presence and apprehension of Raj Kumar during the trap

proceedings was also duly admitted by one of the independent

witnesses, namely, PW5. It was therefore submitted that such a

material inconsistency with regard to the person who had

demanded and accepted the bribe strikes at the root of the

prosecution case.

11.1. It was further submitted that the trial court failed to

consider the fact that there existed prior enmity between PW6 and

PW8, officers of DESU, which fact was admitted by both of them

in their respective testimonies. It was also contended that the trial

court failed to appreciate the testimony of these witnesses in the

proper perspective.

12. Per Contra, it was submitted by the Special Public

Prosecutor appearing for the CBI that the impugned judgment does

not suffer from any infirmity warranting interference by this court

as the trial court has duly considered each and every ground raised

in the present appeal and, upon an overall appreciation of the

materials on record, adjudicated the matter on merits.

12.1. It was submitted that, except PW5, no other witness has

deposed anything with regard to the apprehension of the third

person, namely, Raj Kumar during the trap proceeding.

Notwithstanding the same, the evidence on record otherwise

validly proves the essential ingredients of demand and acceptance

of the bribe amount by the accused persons, and therefore the

prosecution case cannot be discredited on that ground. The minor

inconsistencies in the testimony of the witnesses would not erode

the prosecution case.

12.2. It was further submitted that no clarification was sought

from PW9, the Trap Laying Officer (the TLO), during his

examination before the court, with regard to the apprehension of

the third person since the burden lay upon the accused to elicit

such clarification in order to render the defence version probable.

Reliance was placed on the dictum in M. Narsinga Rao v. State of

A.P., (2001) 1 SCC 691 to canvass the point that even the

uncorroborated evidence of the TLO, can be relied upon to arrive

at the guilt of the accused so long as his testimony is found to be

reliable and inspires confidence of the court.

12.3. It was also submitted that the prosecution case cannot

be discarded merely because some of the witnesses have turned

hostile and that even if a witness resiles from his earlier statement,

the court is not bound to reject his testimony in toto and may rely

upon such other part of his testimony which is found to be credible

and consistent with the prosecution case as held in Vinod Kumar

v. State of Punjab, (2015) 3 SCC 220.

13. Heard both sides and perused the records.

14. The only point that arises for consideration in the

present appeal is whether there is any infirmity in the impugned

judgment 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 01.08.1994 and the trap

laid on 08.08.1994. PW1 submitted a written complaint, that is,

Exhibit PW1/B on 08.08.1994 in the office of the Anti-Corruption

Branch in which he has stated thus:- "...an electricity meter,

number 6051021, is installed at my house, 6/363 Khichripur,

Delhi-91. The meter reading for our electricity consumption up to

September 1993 was 4040 units, and its payment was made on 04-

10-1993. After this, another bill came, which we also paid. Then

after this, one more bill came which we also paid, but due to the

payment receipt being lost somewhere, I am unable to provide its

full details.After this, a consumption bill of 4449 units for ₹8834/-

was received for the electricity consumed up to April 1994. This

bill is completely incorrect. Therefore, we submitted a written

complaint for the correction of the bill at the Radhu Palace office

of DESU on the 25th of last month (25-07-94). I made several

visits to the Radhu Palace office for the correction of the bill, but

the bill could not be corrected. On 01.08.1994, I met Mr. Rajendra

Kumar, Dealing Clerk, at the DESU office. He told me that if the

bill needs to be corrected, then I have to give ₹800/- for it. I

pleaded with him that I would not be able to give that much money.

Then Mr. Rajendra Kumar said that I would have to give at least

₹500/-. He has called me to the DESU office on Monday with

₹500/- and has asked me to come before lunch. I do not want to

give a bribe to Mr. Rajendra Kumar. Therefore, it is requested that

legal action be taken against him."

16. PW1, in his examination-in-chief before the trial court

on 06.08.1997 fully supported the prosecution case. On the said

day, the cross examination of PW1 was adjourned at the request of

the defence counsel on the ground that he was not feeling well.

However, when PW1 was recalled and cross examined on

08.12.1999, he turned hostile and deposed against the prosecution

case.

16.1. PW1 in his cross examination, deposed that initially he

had met PW6 to protest regarding the excessive electricity bill.

PW6 assured him that the bill would be corrected. Thereafter, PW6

took him to the residence of a CBI officer whom the former

addressed as "Ram Saheb". On the next day, PW6 accompanied

him to the office of DESU at Nehru Place and introduced him to

H.K. Rathore (PW8) and one Aggarwal. The said officials made

endorsements on his Ext. 1/A protestapplication. When he went to

the office of the CBI to lodge Ext. PW1/B complaint, he was

accompanied by PW6 and it was PW6 who took him to the room

of the SP, CBI. He had already prepared a written complaint

against one Raj Kumar. PW6 gave him ₹500/- to be used in the

trap. The CBI officials after treating the said note with

Phenolphthalein powder, gave it to him. On the day of the trap

after reaching the office of DESU, he first shook hands with A1

and thereafter with Raj Kumar. A1 corrected the bill and handed it

over to him for getting the signature of PW6 and the

Superintendent. After correction of the bill, Raj Kumar asked him

whether he had brought the money to which he replied in the

affirmative. According to him, A1 did not demand any bribe from

him. When he came out of the office, Raj Kumar told him

"Chotupaankhila de", upon which he went to A2, the paan vendor,

and handed over the tainted ₹ 500/- to him at the instance of Raj

Kumar and not at the instance of A1. PW1 further deposed that on

said day the CBI had arrested three persons, namely, A1, A2 and

Raj Kumar. PW6 also followed them to the office of the CBI. In

the office of the CBI, at the instance of PW6, his original

complaint was replaced and he was made to write Ex. PW1/B

complaint against A1. He also deposed that both A1 and Raj

Kumar were beaten in the office of the CBI and thereafter in his

presence Raj Kumar was released. He was instructed by the CBI

officers to depose in accordance with his statement under Section

161 Cr.P.C. and not to mention anything against Raj Kumar or

PW6. As PW1 did not support the prosecution case in the cross

examination, the prosecutor sought the permission of the trial court

to "cross-examine" PW1. The request was allowed by the trial

court.

16.2. On further examination by the prosecutor, PW1

reiterated his case in the cross examination. When he reached the

office of DESU Office near Radhu Place, Raj Kumar was already

sitting near the seat of A1. He first spoke to A1 and thereafter to

Raj Kumar who told him that the bill would be corrected by A1.

PW1 denied that A1 had asked him whether he had brought the

money and maintained that it was Raj Kumar who had spoken to

him regarding the money. PW1 also denied that he had handed

over the tainted money to A2 at the instance of A1 and maintained

that the money was given at the instance of Raj Kumar.PW1 also

deposed that the hand wash of A1 did not change colour, whereas

the hand wash of accused A2 turned pink. Finally, PW1 also

deposed that he was coming out with the truth as the CBI was

trying to get an innocent person convicted.

17. PW4,the recovery witness, deposed that on 08.08.1994,

on the directions of his Chief Manager he went to the office of the

CBI at about 8.00 A.M. PW5, Deputy Manager, also accompanied

him. PW4 deposed about the pre-trap proceedings. After

completion of the pre trap proceedings at the office of the CBI, the

party left at about 10.00 A.M. in official vehicles and reached near

the office of DESU at Radhu Cinema. The members of the raiding

party took positions at different places within the boundary of the

office of DESU. PW1 and PW5,the shadow witness, were directed

to go inside the office and contact A1.PW4 deposed that he took

position near the gate of the room of A1 from where he could see

the interior of the room where A1 was sitting. PW1 and PW5

remained in the office of A1 for about two hours while the bill was

being corrected. At about 1.00 or 1.30 P.M., during lunch hours,

A1 came downstairs along with PW1 and PW5 and he followed

them. He noticed PW1 handing over money to A2, the paan

vendor, sitting on the pavement. However, PW4 was unable to

identify the said paan vendor in the Court. He further deposed that

before the signal was given by PW5, A2, after accepting the

money, had passed it on to A1. The members of the raiding party

rushed to the spot and apprehended A1 and A2. According to PW4,

both A1 and A2 protested and asked the reason for their

apprehension, whereupon PW10, the TLO disclosed his identity

and confronted them for having accepted the bribe. A1 denied

having taken any bribe and tried to free himself and called for his

colleagues. PW10 then searched A1 and recovered the tainted

currency notes from the shirt pocket of A1. At this juncture, the

prosecutor sought the permission of the trial court to "cross-

examine" PW4 on the ground that he was suppressing the truth and

had resiled from his previous statement. The request was allowed

by the trial court.

17.1. On further examination by the prosecutor, PW4

deposed that he could not recollect the face of the paanwala and

therefore could not admit or deny whether A2 in the Court was the

same person who had received the money from PW1 and passed it

on to A1. He also deposed that he could not recall whether A1 had

thrown the tainted money on the ground in his presence or whether

he himself had picked up the tainted currency notes on the

directions of PW10. PW4 admitted that the right hand wash of A1

was taken at the spot and that it turned pink. PW4 further deposed

that the left hand wash of A1 was also taken, though he could not

recollect whether it was plain water or sodium carbonate solution,

or whether the colour of the solution had changed.

18. PW5, the shadow witness, deposed that he was directed

by his Chief Manager to attend the office of the CBI in the

morning of 08.08.1994. Therefore, on 08.08.1994 he reported at

the said Office at about 8.00 AM. along with PW4. He deposed

about the pre-trap proceedings. PW5 deposed that after completion

of the pre-raid proceedings, the raiding party left for the office of

DESU near Radhu Cinema in two jeeps and reached there at about

10.00 A.M. The vehicles were parked opposite Radhu Palace at a

distance of about one furlong. Thereafter, he along with PW1 went

inside the office to the room of A1, while the other members of the

raiding party remained outside in the surrounding area. When they

entered the office, PW1 told A1, "Merakaamkardijye," to which

A1 replied that the former should wait as it would take some time.

After some time, A1 said that it was about lunch time and asked

them to go downstairs, saying that there was a paan vendor there

and that he would join them shortly. So he and PW1 left the room

and A1 followed them. The office of A1 is on the first floor and so

all of them came downstairs and proceeded towards the paan

counter near Radhu Palace Cinema. He did not hear A1 asking

PW1 to give the money to the paan vendor. However, on the way

PW1 told him that the money was to be given to the paan vendor.

According to PW5, on reaching the paan counter, PW1 handed

over the tainted currency note of ₹500/- to A2, the paan vendor,

whom PW5 identified in the Court. In the meantime, A1 also

reached there and took a paan from A2, and while giving the paan,

A2 passed on the tainted currency of ₹ 500/- to A1.At this juncture,

the prosecutor sought the permission of the trial court to "cross-

examine" PW5 on the ground that he was resiling from his

previous statement and suppressing the truth. The request was

allowed by the trial court.

18.1. During further examination by the prosecutor,

PW5 supported the prosecution version.

18.2. In the cross examination, PW5 admitted that three

persons had been arrested by the CBI and taken to the office of the

CBI. Two of them were accused A1 and A2. PW5 was unable to

recollect whether the third person was Raj Kumar. He further

deposed that he had accompanied the team from the spot to the

office of the CBI and remained there for about one hour, during

which time the third person was also present. PW5 further deposed

that he could not recollect whether PW6 had come to the office of

the CBI requesting the release of Raj Kumar.

19. PW6 K.L. Mewal, Recovery Officer, District Office,

DESU, Mayur Vihar, also officiating as Assistant Finance Officer,

deposed that in August 1994, A1 was working as Junior Clerk cum

Typist in the office and was responsible for issuing bills,

maintaining DESU ledgers, and carrying out bill rectifications. He

deposed that Ext. PW1/C electricity bill was initially issued for ₹

8,834/-. The bill was later rectified to ₹ 132/-. PW6 in his cross

examination admitted that PW8, R.C. Rathore, Finance Officer,

was his immediate superior and that A1 was the nephew of the

latter. According to PW6, his relations with PW8 was not "very

cordial nor even bad". PW6 admitted that Ex. PW6/D1 to

D4memos had been issued to him by PW8.

20. PW8, R.L. Rathore, deposed that, in 1994 he was

posted as Finance Officer, DESU, Karkardooma. He had seen Ext.

PW8/A application of PW1, which he had marked to PW6, the

Assistant Finance Officer. A1 at the relevant time was working as

Billing Assistant in DESU. PW8, in his cross examination,

deposed that at the relevant time he did not have cordial relations

with PW6. According to PW8, PW6 was the Officer in-charge of

A1. As he and PW6 were not on cordial terms, there was

considerable correspondence between them condemning each

other. PW8 admitted that he had called for about 150 to 200

explanations from PW6. PW8 further deposed that on 08.08.1994

at about 3.30 PM, PW6 telephoned and told him that although the

latter could not harm him, he had managed to harm his sister's son

(bhanja). According to PW8, A1is his sister's son.

21. PW10, the Trap Laying Officer, (the TLO) when

examined fully supported the prosecution case.

22. The testimony of the aforesaid witnesses is mainly

relied on by the prosecution to prove the demand and acceptance

of the bribe by A1/the appellant herein. Now the primary question

to be addressed is whether the prosecution has succeeded in

establishing its case against A1 that he had sought illegal

gratification to perform a specific act while discharging his official

duty, thereby attracting the offences punishable under Sections 7

and 13(2) read with Section 13(1)(d) of the PC Act. It is a well

settled position of law that the offer by the bribe giver and the

demand by the public servant have to be proved by the prosecution

as a fact in issue for conviction under Sections 7 and 13(1)(d) of

the PC Act. Mere acceptance of illegal gratification without proof

of offer by the bribe giver and demand by the public servant would

not constitute an offence under Sections 7 and 13(1)(d)(i) and (ii)

of the PC Act, as held by the Hon'ble Apex Court in Neeraj Dutta

v. State (Government of NCT of Delhi)(2023) 4 SCC 731.

23. The learned prosecutor is certainly right in arguing that

merely because a witness turns hostile, that would not mean that

his entire evidence is liable to be discarded. The Court certainly

can accept that part of his testimony which is reliable and inspires

confidence in the mind of the court to arrive at a conclusion

regarding the guilt of the accused.

24. In the case on hand, as stated earlier, PW-1 fully

supported the prosecution case while he was examined in chief.

However, he turned completely hostile when he was cross-

examined before the trial court after a gap of more than 02 years.

As noticed earlier, the cross-examination was adjourned at the

request of the defence counsel on the ground of his illness. Even if

the reason cited for adjournment was true and the matter

adjourned, the trial court should have taken up the case for cross-

examination immediately on the next day or on the earliest

possible date. Because of the long gap in the cross-examination, as

rightly submitted by the learned prosecutor, there was every

possibility / chances of PW1 being won over by the accused.

25. Here I refer to the dictum in M. Narsinga Rao (supra)

relied on by the learned prosecutor to substantiate the argument

that despite PW1 turning hostile, the Court can rely on the

remaining evidence on record and conclude regarding the guilt of

the accused. In M. Narsinga Rao (supra)the appellant, therein,

Manager of a Milk Chilling Centre attached to Andhra Pradesh

Dairy Development Corporation Federation was alleged to have

received bribe from a milk transporting contractor for

recommending the payment of an amount due to the latter.

Pursuant to a complaint being made, the trap was laidand the

appellant was caught red-handed and the tainted currency notes

were recovered from his pocket. The trial commenced after four

long years. During the trial, the main prosecution witnesses turned

hostile and did not support the prosecution case. The appellant

took up a defence that one "K" had orchestrated a false trap against

him by employing PW1 and PW2 therein and that the tainted

currency notes had been forcibly stuffed into his pocket. The trial

court convicted the appellant under Sections 7 and 13(2) read with

section 13(1)(d) of the PC Act, which was upheld by the High

Court. The High Court held that even in the absence of direct

evidence, the rest of the evidence and circumstances were

sufficient to establish that the accused had accepted the amount

and that it gave rise to a presumption under Section 20 of the PC

Act that he had accepted the same as illegal gratification. When the

matter came up before the Hon'ble Supreme Court, the appellant

contended that the presumption under Section 20 of the PC Act

could be drawn only when acceptance or obtaining of gratification

was established by direct evidence and not on the basis of an

inference to that effect. It was contended that unless the

prosecution proved that what was paid amounted to gratification,

the mere handing over of some currency notes to the public servant

would not be sufficient to make the same as an acceptance of

gratification.

25.1. Rejecting the above said contention, it was held by the

Apex Court that when Section 20(1) of the PC Act deals with legal

presumption, it is to be understood as in terrorem, i.e. in the tone

of a command that it has to be presumed that the accused accepted

the gratification as a motive or reward for doing or forbearing to

do any official act etc., if the condition envisaged in the former

part of the Section is satisfied. The only condition for drawing

such a legal presumption under Section 20 is that during the trial, it

should be proved that the accused had accepted or agreed to accept

any gratification. The Section does not say that the said condition

should be satisfied through direct evidence. The word "proof",

needs to be understood in the sense in which it is defined in the

Evidence Act. What is required by the definition of the word

"proof" is the production of such materials on which the Court can

reasonably act to reach the supposition that a fact exists. Proof of

the fact depends upon the degree of probability of its having

existed. The standard required for reaching the supposition is that

of a prudent man acting in any important matter concerning him.

25.2. After referring to the law on the point, the Apex Court

observed that from the materials on record, it was clear that when

the appellant was caught red handed with the currency notes, he

never demurred to the trap laying officer that those notes had not

been received by him. The story that the currency notes were

stuffed into his pocket was found to have been concocted by the

appellant only after lapse of about 4 years and that too when the

appellant faced trial in the Court. Though the silence of the

accused/appellant by itself may not or need not necessarily lead to

the presumption that he accepted the amount from somebody else,

the other circumstances which were proved in the case and those

preceding and succeeding the searching out of the tainted currency

notes were found to be relevant and useful to help the Court to

draw a factual presumption that the appellant therein had willingly

received the currency notes. From the proved facts of the said case,

it was held that the Court could legitimately draw a presumption

that the appellant received or accepted the said currency notes on

his own volition. It was also held that the said presumption is not

an inviolable one, as the appellant could rebut it either through

cross-examination of the witnesses cited against him or by

adducing reliable evidence.

26. Coming to the case on hand, unlike in M. Narsinga

Rao (supra), the appellant/A1 herein did protest when he was

apprehended by the TLO and claimed to be innocent. This is

spoken to by PW4, the shadow witness. Further, the appellant/A1in

his defence has taken up a plea of false implication at the instance

of PW6. This defence is probabilised by the testimony of PW8, a

loyal prosecution witness to whose testimony, I have already

referred to. According to PW8, PW6 (K.L. Mewal) was the officer-

in-charge of A1. PW8 also deposed that his relation with PW6 was

not cordial and that it was quite strained. PW8 further deposed

thus:-

"...........On 08.08.1994 K.L. Mewal talked with me on telephone. His telephone call came at around 03:30 p.m. He informed me that though he could not harm me, but he has managed to harm my sister's son (Bhanja). My said Bhanja is accused Rajinder Kumar, present in Court.........."

26.1. This testimony of PW8 was never clarified by the

prosecutor in the re-examination. Therefore, the defence plea that

there was enmity between PW8 and PW6 and that PW6 due to this

enmity had harmed A1, his junior officer and close relative of PW8

stands probabilised by the testimony of PW8, a loyal prosecution

witness.

27. This testimony of PW8 coupled with the testimony of

PW5, does raise doubts in the mind of the Court. PW5 admitted

that three persons had been arrested on the day by the CBI. It is

true that PW5 did not specifically say that it was Raj Kumar who

had been arrested by the CBI. On the other hand, he deposed that

three persons had been arrested by the CBI, two of them being A1

and A2. PW5 in the cross examination did not deny the fact that

the third person was Raj Kumar. On the other hand, he only

feigned ignorance/ lack of memory. It was pointed out by the

learned counsel for the appellant/A1 that the said Raj Kumar is one

of the witnesses in the final report, but the prosecution deliberately

did not examine the said witness before the Court.

28. On a perusal of the final report/charge sheet, I find that

charge witness No.5 is described as"Raj Kumar Pal, S/o Sh. Kalu

Ram, Junior Clerk cum Compotist, DESU, Radha Place, New

Delhi-92." The materials on record do not show as to why this

witness was not examined by the prosecutor. It is true that it is the

prerogative of the prosecutor to decide who among the persons in

the list of witnesses needs to be examined. But here is a case where

one of the prosecution witnesses himself admit regarding the arrest

of a third person in addition to A1 and A2. PW1 says that the third

person arrested was Raj Kumar (CW5). Though CW5 has been

arrayed as a witness in the chargesheet, for reasons best known to

the prosecution has not been examined.

29. The learned prosecutor then submitted that when the

Investigating Officer was cross examined, he was never asked

regarding the arrest of a third person. If actually a third person had

been arrested as argued on behalf of the defence, it was pointed out

then it was their duty to have brought out necessary clarification

through the testimony of the Investigating Officer. I am unable to

agree to this argument. The defence was able to get certain

incriminating answers from PW5, which version is supported by

PW1, their own star witness. In such circumstances, the defence

would never question the Investigating Officer to get any

clarification of the point. The burden was always on the

prosecution to prove the case beyond reasonable doubt. On the

other hand, the burden of the accused is only to put forward a

preponderance of probabilities regarding the defence version,

which they have succeeded in doing by bringing in answers

through the testimony of the prosecution witnesses itself.

30. I also specifically refer to the statement made by PW1

towards the end of his deposition which reads thus:-

"...............It is incorrect to suggest that on 6-5-97, I gave correct version pertaining to this case. Because CBI is trying to get an innocent person convicted, today I have come out with the truth. It is wrong to suggest that I have been deposed falsely as I have been won over by the accused."

(Emphasis supplied)

31. If the CBI was deliberately trying to implicate an

innocent person, question certainly arises as to why PW1 spoke in

support of the prosecution case in the examination-in-chief.

"Wisdom" seems to have dawned on him quite late. Be that as it

may, the defence version that A1 has been falsely implicated at the

behest of PW6 has been probabilised by the version of PW8, a

loyal prosecution witness. The testimony of PW8 when read along

with the testimony of PW1 and PW5 raise doubts in the mind of

the court regarding the prosecution case. That being the position,

this Court is unable to find that the evidence on record is

satisfactory to prove the prosecution case beyond reasonable

doubt. Had it been only PW1 who had turned hostile and if the

remaining evidence had inspired confidence in the mind of the

Court, this court could have certainly arrived at a conclusion

regarding the guilt of the accused. The materials on record do raise

a grave suspicion of the appellant/A1 having committed the

offence charged against him. But suspicion, however strong,

cannot take the place of proof. That being the position, it can only

be found that the prosecution has failed to prove the case against

the accused beyond reasonable doubt. Therefore, I find that the

appellant/A1 is entitled to the benefit of doubt.