IN THE COURT OF MS. SANGITA DHINGRA SEHGAL, SPECIAL JUDGE, ANTI CORRUPTION BRANCH : DELHI CC No. 22/07 Unique Case ID No. 02401R04[SECTION]832007 [ENTITY] V/s 1. [ENTITY], S/o Sh. Puran Mal, R/o C7[SECTION], Second Floor, Ganesh Nagar II, Shakar Pur, Delhi110092 2. [ENTITY], S/o Sh. [ENTITY], R/o Shivam Studio, Kaushik Enclave, Gali No. 14, Nathupura Road, Burari, Delhi110084 [CASE NUMBER] Under [SECTION], [SECTION] & [SECTION] of [ACT] read with [SECTION] [ACT]. Police Station : Anti Corruption Branch Date of filing of Chargesheet : 21.04.2007 Date on which order was reserved : 21.01.2011 Date of order : 07.02.2011 [CASE NUMBER] 1/36 JUDGMENT
1. The case of the prosecution in brief is that on 28.06.2006, [ENTITY] (PW6) reported in the Anti Corruption Branch that he had purchased a house in Burari, Delhi in 2005 and in which he was carrying out construction on the second floor, when accused [ENTITY] (JE) posted in the Building Department, MCD, Delhi came on 26.6.2006 along with accused [ENTITY] and partly demolished his house.
2. The case of the prosecution is that [ENTITY] (PW6) pleaded with the JE that the front portion of the house should not be demolished on which he was instructed to talk to accused [ENTITY], Photographer by accused [ENTITY] (JE).
3. The case of the prosecution further is that on the same day, accused [ENTITY] made a call to the [ENTITY] (PW6) at 8 PM and made him speak to [ENTITY] (JE) on telephone, who told him to give Rs.1,00,000/ to accused [ENTITY] to stop further demolition.
4. The case of the prosecution further is that [ENTITY] (PW6) told accused [ENTITY] (JE), that it was not possible for him to pay Rs.1,00,000/ in one go and he would make the payment in installments on which, he again instructed him to remain in touch with accused [ENTITY] and disconnected the phone.
5. The case of the prosecution further is that accused [ENTITY] called him up on phone on 28.6.2006 and informed him that demolition was going in Model Town, Delhi and he should be ready with the money, but he would let him know the place where the payment was to be delivered.
6. The case of the prosecution is that the [ENTITY] (PW6) produced GC notes of Rs. 20,000/ in the denomination of six GC notes of Rs. 1,000/ each and 28 GC notes of Rs. 500/ each before [ENTITY] Raid Officer (PW9) in presence of the [ENTITY] Panch Witness (PW7) and the same were treated with phenolphthalein powder and the demonstration about the characteristics of the phenolphthalein powder was explained by the Raid Officer (PW9) and preraid report Ex.PW6/B was prepared in which the serial numbers of the GC notes were recorded. The treated GC notes were given to the [ENTITY] (PW6) who kept the same in the left pocket of his shirt and the Panch Witness (PW7) was given instructions to remain close to the [ENTITY] (PW6) and give a signal of demand / acceptance of bribe money by hurling his hand over his head.
7. The case of the prosecution is that the Raiding Party comprising of [ENTITY] Raid Officer (PW9), [ENTITY] Panch Witness (PW7) along with the [ENTITY] (PW6) reached 60 Ft. Road, Burari, Delhi with the bribe money as instructed by accused [ENTITY] on phone.
8. The case of the prosecution further is that the [ENTITY] (PW6) and the Panch Witness (PW7) were seated in the Car of the [ENTITY] and other raiding members took strategic positions. In the meantime, accused [ENTITY] came on a motorcycle near the window of the Car and spoke to the [ENTITY] (PW6) and demanded and accepted the bribe amount from the [ENTITY] (PW6) in the denomination of six GC notes of Rs.1,000/ each and 28 GC notes of Rs.500/ each in his right hand and kept the same in the left pocket of his shirt, but before the Panch Witness (PW7) could give a predetermined signal to the Raiding Party, accused [ENTITY] escaped.
The case of the prosecution further is that while the Raiding Party was on its return to the Anti Corruption Branch, the [ENTITY] (PW6) received a telephone call from accused [ENTITY] that JE was saying that the amount was less and instructed the [ENTITY] (PW6) to deliver the balance amount after about half an hour near Alpana Cinema, Model Town, Delhi.
9. The case of the prosecution further is that the [ENTITY] (PW6) along with the Raiding Party went near Alpana Cinema, Model Town, Delhi where accused [ENTITY] came on a second round and was apprehended by the police officials of the Anti Corruption Branch. Thereafter, accused [ENTITY] disclosed that the bribe money accepted by him was on behalf of JE and he had handed over the same to accused [ENTITY] (JE). The search of accused [ENTITY] was carried out but no recovery was effected. Accused [ENTITY] led the Raiding Party to MCD workshop office, Model Town , JE Building, Civil Line Zone, Delhi.
10. The case of the prosecution further is that accused [ENTITY] pointed out towards accused [ENTITY] (JE) sitting in the MCD workshop office, Model Town, JE Building, Civil Line Zone, Delhi and disclosed that he had handed over the bribe money of Rs.20,000/ in the denomination of six GC notes of Rs.1,000/ each and 28 GC notes of Rs.500/ each in the right hand of accused [ENTITY] (JE) but on the search of accused [ENTITY] (JE), the bribe amount was not recovered.
11. The case of the prosecution further is that the right hand wash of accused [ENTITY] (JE) & that of accused [ENTITY], wash of the left pocket shirt of accused [ENTITY] and wash of the handle of the motorcycle was taken and the postraid proceedings were drawn vide Ex.PW7/A and the [ENTITY] Ex.PW9/A was sent to the Anti Corruption branch, on the basis of which an FIR Ex.PW10/B was registered and both the accused were arrested.
[SECTION]. After the compliance of the provisions of [SECTION] [ACT] charge was framed against the accused persons that (i) both accused [ENTITY] (JE) and accused [ENTITY] entered into a criminal conspiracy for extracting a bribe of Rs.1,00,000/ from the [ENTITY] and in pursuance thereof obtained illegal gratification of Rs.20,000/ and thereby committed an offence punishable U/[SECTION] [ACT] r/W [SECTION] and [SECTION] of [ACT]
(ii) that in pursuance to the criminal conspiracy accused [ENTITY] (JE), while being employed as a Public Servant obtained illegal gratification from the [ENTITY] through accused [ENTITY] and thereby committed an offence punishable under [SECTION] of the [ACT] that in pursuance thereof, accused [ENTITY] (JE) obtained illegal gratification through accused [ENTITY] as a pecuniary advantage for himself by corrupt or illegal means by abusing his position as a Public Servant and thereby committed an offence of criminal misconduct as specified under [SECTION] punishable under [SECTION] of the [ACT] that in furtherance thereof, accused [ENTITY] by demanding and accepting the illegal gratification on the direction of accused [ENTITY] (JE) and abetted the offence punishable under [SECTION] & [SECTION] the [ACT] and committed an offence punishable under [SECTION] of the [ACT].
[SECTION]. In order to bring home the charges, the prosecution examined 10 witnesses before the [ENTITY]ment of both the accused persons was recorded under [SECTION] [ACT]
14. In the statement under [SECTION] [ACT], both the accused persons claimed to be innocent and falsely implicated in this case.
15. Sh. [ENTITY], Ld. Defence Counsel for accused [ENTITY]) argued that the material witness i.e. the [ENTITY] (PW6) turned hostile and the prosecution failed to prove its story that accused [ENTITY] had allegedly demanded bribe on behalf of accused [ENTITY] (JE). The Ld. Defence Counsel further argued that the alleged bribe amount was neither recovered from accused [ENTITY] or accused [ENTITY] (JE) and hence the prosecution case fails.
16. Sh. [ENTITY], Ld. Defence counsel for accused [ENTITY] also argued on the same lines as of accused [ENTITY] (JE) and further added that accused [ENTITY] had been falsely implicated. The Ld. Defence Counsel further argued that the prosecution has failed to bring any evidence on record to prove that [ENTITY] abetted the commission of offence of [SECTION] & [SECTION] of the [ACT] by obtaining bribe of Rs.20,000/ from the [ENTITY] on the direction of accused [ENTITY] (JE) and handed over the same to him.
17. On the other hand Ld. APP for the [ENTITY] argued that the prosecution had proved its case beyond reasonable doubt against both the accused persons for which they have been charged.
18. I have carefully considered the submissions made by both the Defence Counsels and Ld. APP for the [ENTITY].
19. The testimony of the witnesses produced by the prosecution is as under: [ENTITY] (PW6) deposed that on 26.06.2006, accused [ENTITY] (JE) and [ENTITY] (AE) accompanied with a boy came to his house and demolished one Wall of the second floor which was under
construction. This witness further deposed that on the next day (27.6.2006) he spoke to that boy and pleaded with him to see that the remaining portion of his property is not demolished. This witness further deposed that the boy demanded Rs.1,00,000/ on behalf of the JE and AE who were present on 26.6.2006. This witness further deposed that in the evening on the same day (27.6.2006), he received a telephone call from that boy who made him talk to [ENTITY] (AE), who in turn told him to give one rupee to that boy and also explained the meaning of one rupee as Rs.1,00,000/ and [ENTITY] (AE) asked him to reach with the bribe money in Model Town, Delhi on 28.6.2006. This witness has deposed that he was told by [ENTITY] (AE) that the same boy would collect the bribe amount. During crossexamination by the prosecution, the [ENTITY] (PW6) admitted that "it is correct that I received a Telephone call from accused [ENTITY] a photographer who asked for [ENTITY] for AE and JE". The [ENTITY] (PW6) admitted that "it is correct that I stated in my complaint that [ENTITY] asked me to give Rs.1,00,000/ to [ENTITY], Photographer.
The [ENTITY] (PW6) also deposed that he handed over Rs.20,000/ in the denomination of six GC notes of Rs.1,000/each and 28 GC notes of Rs.500/ each and the preraid proceedings Ex.PW6/B were drawn by the Raid officer (PW9). The [ENTITY] (PW6) further deposed that the Raiding Party accompanied him to 60 Ft.
Road, Burari, Delhi and the Panch Witness (PW7) was sitting in his car along with him when the same boy came on the motorcycle and asked for the bribe money and accepted the GC notes in his right hand on which the Panch Witness (PW7) gave a predetermined signal but the boy on the motorcycle could not be apprehended and when the Raiding Party was returning to Anti Corruption Branch, Delhi, the same boy made a telephone Call to him and told him that he was to pay Rs.1,00,000/ but had only given Rs.20,000/. The [ENTITY] (PW6) has deposed that the boy asked him to reach near Alpana Cinema, Model Town, Delhi after half an hour with the remaining amount on which he immediately informed the Raid Officer (PW9) about the conversation which took place between him and that boy. The [ENTITY] (PW6) further deposed that the Raiding Party again went to Alpana Cinema, Model Town, Delhi, where that boy came to collect the remaining amount and was apprehended.
The [ENTITY] (PW6) when questioned whether the right hand wash of the accused [ENTITY] was taken, deposed that "Wash of his hand was taken but "I did not state that wash of his right hand was taken."
20. According to [ENTITY] Panch Witness (PW7), the [ENTITY] (PW6) wrote his complaint Ex.PW6/A in the Anti Corruption Branch regarding demand of bribe by accused [ENTITY] (JE) of MCD for not demolishing the house of the [ENTITY] (PW6). This witness also deposed that the [ENTITY] (PW6) had produced Rs.20,000/ in the denomination of 6 GC notes of Rs. 1,000/ each and 28 GC notes of Rs. 500/ each and proved the preraid report Ex.PW6/B and further deposed that the Raid Officer (PW9) gave demonstration of the characteristics of the phenolphthalein powder and instructed the [ENTITY] (PW6) to remain close to him. The [ENTITY] (PW6) kept the treated GC notes in the pocket of his shirt. The Panch Witness (PW7) further deposed that on 28.6.2006, the Raiding Party left the Anti Corruption Branch for 60 Ft. Road, Burari, Delhi and he waited in the Car along with the [ENTITY] (PW6) and the other members of the Raiding Party took strategic positions. Thereafter, accused [ENTITY], private photographer came on a motorcycle and spoke to the [ENTITY] (PW6), on which accused [ENTITY] was handed over the treated GC notes in his right hand and he kept the notes in the left pocket of his shirt. This witness further deposed that when he was in the process of giving a predetermined signal accused [ENTITY] escaped on a motorcycle and the Raiding Party tried to trace accused [ENTITY] but he was not traceable.
When the Raiding Party was returning to the Anti Corruption Branch, the [ENTITY] (PW6) received a call from accused [ENTITY] who said "JE was saying that amount was less and accused [ENTITY] instructed the [ENTITY] to give the full amount." According to this witness after a talk between the [ENTITY] (PW6) and accused [ENTITY] on telephone, the Raiding Party went near Alpana Cinema, Model Town and he stood along with the [ENTITY] (PW6) on the side of the Cinema hall and accused [ENTITY] came on a motorcycle and on the predetermined signal given by him, the members of the Raiding Party apprehended accused [ENTITY]. Panch Witness (PW7) deposed that the Raid Officer (PW9) had challenged the accused [ENTITY], who admitted having taken bribe and the search of the accused [ENTITY] was taken but nothing was recovered. Accused [ENTITY] disclosed to the Raid officer (PW9) that he had handed over the GC notes to accused [ENTITY] (JE) at his site office. The Panch Witness (PW7) deposed that the Raiding Party went to the office of accused [ENTITY] (JE) and on the pointing out of accused [ENTITY] apprehended him and took his search, but no recovery was effected. He further deposed that wash of the right hand, left pocket of the shirt and wash of the right side handle of the motorcycle of accused [ENTITY] was taken and the water like solution turned pink and the washes were transferred into empty bottles. Panch Witness (PW7) further deposed that the right hand wash of accused [ENTITY] was also taken, which turned pink and was transferred into two small empty bottles. Panch Witness (PW7) proved the arrest memo of both the accused vide Ex.PW6/D and Ex.PW6/E. Panch Witness (PW7) identified the motorcycle of the accused [ENTITY] as Ex.P10.
21. [ENTITY] (PW9) corroborated the testimony of the [ENTITY] (PW6) that he lodged a complaint Ex.PW6/A in presence of Panch Witness (PW7) which was for demand of bribe of Rs.1,00,000/ by accused [ENTITY] (JE) through accused [ENTITY], Photographer and thereafter he produced Rs. 20,000/ in the denomination of six GC notes of Rs. 1,000/ each and 28 GC notes of Rs. 500/ each and the preraid report was recorded. The Raid Officer (PW9) Corroborated the testimony of the Panch Witness (PW7) and deposed on the same lines. According to the Raid Officer (PW9), the right hand wash, wash of the left shirt pocket, wash of the right side of the handle of Motorcycle of accused [ENTITY] was taken. The Raid officer (PW9) sent the [ENTITY] Ex.PW9/A to the Anti Corruption Branch for registration of the FIR.
22. [ENTITY] (PW10) deposed that on 28.6.2006, he was a member of a Raiding Party led by Raid Officer (PW9) who handed over the copy of the raid report, seizure memos and motor cycle. This witness further deposed that the custody of accused [ENTITY] (JE) and accused [ENTITY] was handed over to SI [ENTITY]. He further deposed that he prepared the site plan Ex.PW10/A and also proved the copy of the FIR Ex.PW10/B, the arrest memo of accused persons Ex.PW6/D and Ex.PW6/E and the personal search memo of both the accused persons vide Ex.PW6/F and Ex.PW6/G. This witness deposed that he sent the exhibits to FSL Rohini and proved the FSL Report as Ex.PW10/D. The transfer and posting order of accused [ENTITY] was proved as Ex. PW10/G and the demolition order has been proved as Ex.PW10/H1.
23. The other witnesses examined by the prosecution are formal. Sh. [ENTITY], Nodal Officer, [ENTITY] (PW1) produced the phone details of mobile no.9810[SECTION]6736 for the period 26.6.2006 to 28.6.2006 as Ex.PW1/B. Sh. [ENTITY], Chairman, NDMC (PW2) deposed that he accorded the sanction under [SECTION] of the [ACT] Ex.PW2/A to prosecute accused [ENTITY] (JE). Constable [ENTITY] (PW4) deposed that he got the case registered on the basis of the [ENTITY] Ex.PW9/A. Head Constable [ENTITY] (PW5) deposed that he collected the exhibits RHWI ([ENTITY]), RHWI(JE), LSSPWI & MCAHWI.
24. In his defence accused [ENTITY] (JE) got examined [ENTITY] (D1W1), who deposed that on 28.6.2006, while he was posted as beldar in the office of MCD, Model Town, Delhi accused [ENTITY], JE was picked up from his office forcibly. [ENTITY] Kumar (D1W2) deposed that on 28.6.2006, while he was posted in the office of the Civil Zone, MCD enquiries were made about [ENTITY], (AE) who was picked up by the Anti Corruption Branch in a vehicle, but no proceedings were conducted at the spot. [ENTITY] (D1W3), deposed that he received a call from accused [ENTITY]) on 28.6.2006 that he had been arrested by the Anti Corruption Branch and he signed the arrest memo Ex.PW6/E. [ENTITY] (D1W4) deposed that on 28.6.2006, accused [ENTITY] (JE) was lifted by some officials at about 4 PM.
Accused [ENTITY] did not lead any defence evidence.
25. It is true that [ENTITY] (PW6) turned hostile, but it is also a settled legal proposition that evidence of a witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent the version is found to be dependable on a careful scrutiny thereof.
26. Identity of accused [ENTITY].
It is significant to note that though the [ENTITY] (PW6) turned hostile, he deposed that three persons were present on 26.6.2006 at the time of demolition of one wall on the second floor of his house. The [ENTITY] (PW6) deposed that he spoke to a boy, who had accompanied the AE and JE and requested him not to demolish the remaining portion of his property and this boy made him speak to [ENTITY] (AE), who asked him to come to 60 Ft. Road, Burari, Delhi on 28.6.2006 with the bribe amount of Rs.1,00,000/. The [ENTITY] (PW6) further deposed that when he was sitting along with the Panch Witness (PW7) in a car the same boy came on a motorcycle and demanded the payment and accepted the GC notes of Rs.20,000/ in the denomination of six GC notes of Rs.1,000/ each and 28 GC notes of Rs.500/ each in his right hand and kept the same in his left pocket of his shirt, but could not be apprehended as he escaped on the motorcycle. The [ENTITY] (PW6) deposed that the same boy made a telephone call to him and told him that he had paid Rs.20,000/ instead of Rs.1,00,000/ and AE was demanding the entire amount and called him near the Alpana Cinema, Model Town, Delhi with the remaining amount and when he came to collect the same, he was apprehended. The [ENTITY] (PW6) deposed that, that boy became perplexed and his search was taken, but the GC notes of Rs.20,000/ in the denomination of six GC notes of Rs.1,000/ each and 28 GC notes of Rs.500/ each were not recovered from his person. The [ENTITY] (PW6) further deposed that the right hand wash of that boy, wash of the left pocket of his shirt and wash of the handle of his motorcycle were taken. The [ENTITY] (PW6) deposed that " it is correct that accused [ENTITY] (JE) and that boy was apprehended at the spot and were brought to the Anti Corruption Branch in the Govt. vehicle." The [ENTITY] (PW6) further deposed "that the name of that boy who was arrested was later on I came to know was [ENTITY]. That boy told the Raid Officer that he had accepted the bribe amount on behalf of [ENTITY]."
The [ENTITY] (PW6) while being examined did not name the boy but admitted that he came to know the name of that boy later on as [ENTITY].
It is therefore clear from the testimony of [ENTITY] (PW6) that accused [ENTITY] (that boy) asked him to do "[ENTITY]" for and on behalf of AE / JE and it is further clear that the tainted money was handed over to the boy on motorcycle named [ENTITY] who was arrested at the spot when he came to collect the payment in the second round. The seizure of the motorcycle Ex.P10 at the spot and the fact that accused [ENTITY] got the same released without disputing his identity also goes to prove that that boy is none else but accused [ENTITY].
Even Panch Witness (PW7) deposed that the [ENTITY] (PW6) wrote his complaint Ex.PW6/A and signed the same which was handed over to the Raid Officer (PW9) in the Anti Corruption Branch in his presence and the gist of the complaint was regarding demand of bribe by accused [ENTITY] (JE). This witness also supported the case of the prosecution that the [ENTITY] (PW6) had brought Rs.20,000/ in the denomination of six GC notes of Rs.1,000/ each and 28 GC notes in the denomination of Rs.500/ each and the serial numbers of those GC notes were recorded in the preraid report Ex.PW6/B. The Panch Witness (PW7) supported the case of the prosecution and identified accused [ENTITY] as the person who came on the motorcycle and spoke to the [ENTITY] (PW6) and deposed that the [ENTITY] (PW6) handed over those GC notes to accused [ENTITY] but while he was in the process of giving a predetermined signal, accused [ENTITY] ran away on the motorcycle. The Panch Witness (PW7) also supported the case of the prosecution on the fact that accused [ENTITY] had kept the GC notes in the left pocket of his shirt and later on when the Raiding Party was returning to the Anti Corruption Branch, Delhi the [ENTITY] (PW6) received a call from accused [ENTITY], instructing him to give the full amount and called him to Alpana Cinema, Model Town, Delhi, but when accused [ENTITY] came on the motorcycle in the second round, he was apprehended.
It is true that [ENTITY] (PW6) partly supported the case of the prosecution, but the identity of accused [ENTITY] is proved beyond reasonable doubt from his testimony. The Panch Witness (PW7) identified accused [ENTITY] beyond reasonable doubt when examined by the prosecution.
27. Identity of accused [ENTITY] (JE) The [ENTITY] (PW6) lodged a complaint Ex.PW6/A in the Anti Corruption Branch, Delhi on 28.6.2006 and admitted that he wrote his complaint Ex.PW6/A in his own handwriting signed by him in the presence of Panch Witness (PW7). The [ENTITY] (PW6) also admitted that the preraid proceedings were drawn by the Raid Officer Ex.PW6/B, in which it was recorded that he had brought Rs.20,000/ in the denomination of six GC notes of Rs.1000/ each and 28 GC notes in the denomination of Rs.500/ each and the same were treated with Phenolphthalein Powder and the treated notes were kept by him in the left pocket of his shirt. In the complaint Ex.PW6/A, [ENTITY] (PW6) named accused [ENTITY] (JE) for demanding the bribe money and during crossexamination by Ld. APP stated that "it is correct that I stated in my complaint that [ENTITY] asked me to give Rs.1,00,000/ to [ENTITY]". The [ENTITY] (PW6) in his crossexamination deposed that "I do not know who were the AE and JE as per designation, but accused [ENTITY] came there at the time of demolition of my second floor. The person who was apprehended at the spot was taken to the Office of accused [ENTITY]. That person who was apprehended did not shake hand with [ENTITY] however he pointed out towards [ENTITY]".
From the testimony of the [ENTITY] (PW6), it is clear that he lodged a complaint Ex.PW6/A of demand of bribe against accused [ENTITY] (JE) who has been identified beyond reasonable doubt as the person who was present at the site of demolition and the accused [ENTITY], who was apprehended at the spot took the Raiding Party to the office of accused [ENTITY] (JE) and disclosed that the bribe money had been passed on to accused [ENTITY] (JE). The identity of accused [ENTITY] (JE) has been proved beyond reasonable doubt.
28. Recovery: It is true that the GC notes of Rs.20,000/ in the denomination of six GC notes of Rs.1,000/ each and 28 GC notes of Rs.500/ each were neither recovered from the accused [ENTITY] nor recovered from accused [ENTITY] (JE) but there is no dispute on the fact that [ENTITY] (PW6) produced the GC notes of Rs.20,000/ in the denomination of six GC notes of Rs.1,000/ each and 28 GC notes of Rs.500/ each and handed over the same to one boy whose identity has been proved as accused [ENTITY]. The Panch Witness has identified the accused [ENTITY] beyond any doubt and deposed that the accused [ENTITY] had reached 60 Ft. Road, Burari, Delhi on his motorcycle and after talking to the [ENTITY] (PW6) took Rs.20,000/ in the denomination of six GC notes of Rs.1000/ each and 28 GC notes of Rs.500/ each and escaped, but when he called the [ENTITY] (PW6) again near Alpana Cinema, Model Town, Delhi, he was apprehended.
According to the Panch Witness (PW7) the amount of Rs.20,000/ in the denomination of six GC notes of Rs.1,000/ each and 28 GC notes of Rs.500/ each were accepted by accused [ENTITY] with his right hand and he kept the same in his left pocket of his shirt. The search of the accused [ENTITY] was conducted on his apprehension but no recovery was made but the right hand wash of accused [ENTITY] and that of his left pocket of his shirt were taken vide RHW1/II and LSSPWI/II, which turned pink. The Panch Witness (PW7) further deposed that accused [ENTITY] led them to accused [ENTITY] (JE) and he disclosed that he handed over the bribe amount to him. The search of the accused [ENTITY] (JE) did not yield result as the bribe money was not recovered, but the wash of his right hand when taken vide RHW I/II turned pink.
29. Result of Chemical Analysis:
The right hand wash of accused [ENTITY] marked as RHWI/II, wash of the left pocket of his shirt marked as LSSPWI/II and wash of the handle of his motorcycle marked as MCAHWI/II and the right hand wash of accused [ENTITY] (JE) marked as RHWI/II gave positive results of the presence of Phenolphthalein Powder and Sodium Carbonate as per the FSL Report Ex.PW10/B. It is relevant to refer to Som Parkash V/s [ENTITY] of Delhi AIR 1974 Supreme Court 989 , wherein it was held that as under:
"But the of course , the oral evidence of Pws 1 and 4 by itself, if believed, as rightly believed by the High Court, proves the passing of the money when challenged by P.W.7. The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the [ENTITY] Counsel argues that on no hypothesis except that the notes emerged from the accused 's pocket or possession can the triple colour change be accounted for. The evidence furnished by inorganic chemistry often outwits the technology of corrupt officials, provided no alternative reasonable possibility is made out. The appellant offers a plausible theory, PW 1 kept the notes with him and h is hands thus carried the powder. He gave a bottle of coke to the accused and the bottle thus transmitted particles of phenolphthalein to the latter 's hands. He ( the accused ) wiped h is face with the handkerchief and put it into his trouser pocket thus contaminating the lining with the guilty substance. Moreover, the inner lining was dipped by PW 7 with his hands which had the powder. Thus, all the three items stand explained, according to him. These recondite possibilities and likely freaks have been rejected by both the courts and we are hardly persuaded into hostility to that finding. It is but meet that science oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt.
It is true that no recovery was effected from both of them but they failed to give any explanation as how and why their hand washes gave positive result of the presence of Phenolphthalein Powder and Sodium Carbonate and accused [ENTITY] further failed to explain how and why the wash of the left pocket of his shirt and handle of his motorcycle gave positive result of the presence of Phenolphthalein Powder and Sodium Carbonate. The testimony of the witnesses examined by the prosecution proves that accused [ENTITY] (JE) and accused [ENTITY] handled the tainted money and the FSL Report Ex.10/B connects the accused persons with the commission of offence that accused [ENTITY] (JE) obtained illegal gratification through accused [ENTITY].
30. Unlawful Agreement It is a settled law that for an offence under [SECTION] [ACT], the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done the illegal act; the agreement may be proved by necessary implication. It is not in dispute that mere presence is not sufficient to bring home an offence under [SECTION] [ACT] unless it is shown that the accused is guilty of some overt act.
The ingredients of [SECTION] B [ACT] are as under:
(i) an agreement between two or more persons; (ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means.
Criminal conspiracy is a partnership in crime and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them and this joint responsibility extends not only to what is done by one of the conspirators.
It is also well settled that a conspiracy ordinarily is hatched in secrecy and the evidence of conspiracy can be gathered from the chain of events and the circumstances which throw light on the conspiracy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence.
In Yogesh @ Sachin Jagdish Joshi v. [ENTITY] of Maharashtra (2008) 10 SCC 394 : (2009) 1 SCC (Crl.) 51 : (2008) 6 Scale 469, a Division Bench of Hon'ble Supreme Court held that :
"Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement."
In K.R. Purushothaman v. [ENTITY] of Kerala,(2005) [SECTION] SCC 631 : (20060 1 SCC (Crl. 686), Hon'ble Supreme Court has held that:
To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair, The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the well known rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. The criminal conspiracy is an independent offence in [ACT]. The unlawful agreement is sine quo non for constituting offence under [ACT] and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement."
The question therefore is whether accused [ENTITY] (JE) and accused [ENTITY] entered into a criminal conspiracy for extracting bribe from the [ENTITY] (PW6) and obtained illegal gratification of Rs.20,000/. The presence of accused [ENTITY] (JE) and that of accused [ENTITY] stands confirmed from the testimony of the witnesses examined by the prosecution at the house of the [ENTITY] (PW6), which was under
demolition. Though the [ENTITY] (PW6) turned hostile, it is proved beyond reasonable doubt that the unnamed boy was none else but accused [ENTITY]. The [ENTITY] (PW6) introduced a third person in his statement other than accused [ENTITY] (JE) and accused [ENTITY], but the Panch Witness (PW7) has proved the following:
(i) that the [ENTITY] (PW6) came to the Anti Corruption Branch and lodged his complaint Ex.PW6/A, which was signed by him.
(ii) that the complaint was for demand of bribe money by accused [ENTITY] (JE)
(iii)that the [ENTITY] (PW6) produced GC notes of Rs.20,000/ in the denomination of six GC notes of Rs.1,000/ each and 28 GC notes of Rs.500/ each and was treated with Phenolphthalein Powder and handed over to the [ENTITY] (PW6)
(iv)that on 28.6.2006, [ENTITY] (PW6) was called to the 60 Ft.
Burari Road, Delhi on phone with the bribe money.
(v) that he accompanied the [ENTITY] (PW6) to 60 Ft. Road, Burari, Delhi and the members of the raiding party took strategic positions.
(vi) When he and the [ENTITY] (PW6) were sitting in a car accused [ENTITY] came and spoke to the [ENTITY] (PW6) and accepted Rs.20,000/, but escaped before he could give a predetermined signal.
(vii)that the Raiding Party was on its way back to the Anti Corruption Branch, when the [ENTITY] (PW6) received another telephone call.
(viii)that the Raiding Party returned and he accompanied the [ENTITY] (PW6) to Alpana Cinema, Model Town, Delhi and other members of the Raiding Party took suitable positions.
(ix)that accused [ENTITY] came there to collect the balance payment, but he gave a predetermined signal to the Raiding Party and accused [ENTITY] was apprehended.
(x) that on apprehension, accused [ENTITY] disclosed that he had passed on Rs.20,000/ to accused [ENTITY] (JE).
(xi) that accused [ENTITY] led the Raiding Party to accused [ENTITY] (JE) where he was apprehended.
The above chain of events and the role played by both the accused persons, and the entire circumstances prove that accused [ENTITY] (JE) and accused [ENTITY] entered into a partnership in crime and had common plans i.e. to extract illegal gratification from the [ENTITY] (PW6). The accused [ENTITY] (JE) and accused [ENTITY] initially went to the site of demolition whereafter accused [ENTITY] (JE) remained absent from the scene and accused [ENTITY] executed the directions of accused [ENTITY] (JE) in pursuance to the criminal conspiracy for extracting bribe of Rs.1,00,000/ from the [ENTITY] and also obtained Rs.20,000/.
31. Abetment: Abetment under the [ACT] involves active complicity on the part of the abettor at a point of time prior to the actual commission of offence and it is of the essence of the crime of abetment that the abettor should substantially assist the principle culprit towards the commission of the offence. Whenever an offence is committed and several persons take part in the commission of it, each person may contribute in a manner and degree different from the others to the doing of the criminal act. The act may be done by the hands of one person while another is present or is close at hand ready to afford help or the actual doer may be a guilty agent acting under the orders of an absent person. A person abets by aiding when by any act done either prior to or at the time of commission of an act he intends to facilitate and does, in fact, facilitates the commission thereof.
The question therefore is whether the accused [ENTITY] has abetted the offence punishable under [SECTION] of the [ACT].
Accused [ENTITY] accompanied accused [ENTITY] (JE) to the house of the [ENTITY] (PW6) where part demolition of the house of the [ENTITY] (PW6) had been carried out on 26.6.2006. The complainant admitted that he did not have a sanctioned plan for carrying out construction on the second floor of the house which he had purchased in the year 2005. The [ENTITY] (PW6) pleaded that the front portion of his house should be saved from demolition.
It is true that the [ENTITY] (PW6) turned hostile but the Panch Witness (PW7) proved that the [ENTITY] (PW6) had lodged a complaint Ex.PW6/A against accused [ENTITY] (JE) in his presence for demand of bribe. It has been proved on record that the [ENTITY] (PW6) was called by accused [ENTITY] to 60 Ft. Road, Burari, Delhi to hand over the bribe money to him. The accused [ENTITY] came on his motorcycle and collected Rs.20,000/. Accused [ENTITY] again made a telephone call to the [ENTITY] (PW6), which fact has been corroborated by the Panch Witness (PW7). It is proved from the testimony of [ENTITY] (PW6) and the Panch Witness PW7 that when [ENTITY] came on the second round to collect the remaining money, accused [ENTITY] was apprehended and he disclosed that he had handed over Rs.20,000/ to accused [ENTITY] (JE). Presence of Phenolphthalein Powder was found on the hands of both the accused and this is proved by the FSL Report Ex.PW10/B. It is clear from the testimony of the witnesses examined by the prosecution that the accused [ENTITY] played a major role and remained in the forefront though the accused [ENTITY] (JE) was absent from the scene except on 26.6.2006, when part demolition was carried out. Accused [ENTITY] intentionally aided the commission of the offence and abetted the offence by demanding and accepting the illegal gratification on the direction and on behalf of accused [ENTITY] (JE) and passed on the illegal gratification to accused [ENTITY] (JE) thereby facilitating the commission of offence.
32. Conclusion: As a result of the above discussion, I am of the considered view that prosecution has been able to prove beyond reasonable doubt that accused [ENTITY] (JE) and [ENTITY] entered into criminal conspiracy for extracting Rs.1,00,000/ from the [ENTITY] and in pursuance to the conspiracy obtained Rs.20,000/ as illegal gratification and thereby accused [ENTITY] (JE) and accused [ENTITY] committed an offence punishable [SECTION] [ACT] Read With [SECTION] & [SECTION] of the [ACT].
The prosecution has been further able to prove beyond reasonable doubt that pursuant to the criminal conspiracy, accused [ENTITY] (JE) while being employed as public servant obtained illegal gratification through accused [ENTITY] and committed an offence punishable under [SECTION] of the [ACT].
It is proved beyond reasonable doubt that accused [ENTITY] (JE) obtained illegal gratification through accused [ENTITY] as a pecuniary advantage by corrupt or illegal means by abusing his position as a public servant and committed an offence of criminal misconduct as specified under [SECTION] of the [ACT].
The prosecution has also been able to prove that in furtherance of the criminal conspiracy, accused [ENTITY] demanded and accepted the illegal gratification on behalf and on directions of the accused [ENTITY] (JE) and abetted an offence punishable under [SECTION] & [SECTION] of the [ACT] and thereby committed an offence punishable under [SECTION] of the [ACT]. Result:
As a result of the above both the accused are convicted under [SECTION] B [ACT] read with [SECTION] & [SECTION] of the [ACT].
Accused [ENTITY] (JE) is also convicted for committing an offence punishable under [SECTION] of the [ACT] and also for offence under [SECTION] punishable under [SECTION] of the [ACT].
Accused [ENTITY] is further convicted for committing an offence punishable under [SECTION] of the [ACT]. Ordered accordingly. Let both the accused be heard on the point of sentence.
Announced in the Open [ENTITY] on 07.02.2011 SPECIAL JUDGE, DELHI