-:1:- IN THE COURT OF SH. [ENTITY] SPECIAL JUDGE (PC ACT)-02 (ACB), CENTRAL, ROUSE AVENUE COURTS, NEW DELHI CNR No. : DLCT11-000616-2019 FIR No. : 27/08 Police Station : Anti Corruption Branch CC No. : 140/2019 Under Section : 7/13 Prevention of Corruption Act, 1988 readwith [SECTION] [ACT] [ENTITY] Versus 1. [ENTITY] son of Late Sh. Bhana Ram R/o VPO Thana Kalan Distt. Sonipat(Haryana) 2. Const. [ENTITY] son of Sh. Raghubir Singh R/o VPO Bhaproada, Jhajjar(Haryana). FIR NO. 27/08, [CASE NUMBER], [ENTITY] Vs. [ENTITY] & Another Page 1/62 -:2:- Date of institution : 12.10.2017 Offences charged with : u/[SECTION] readwith [SECTION] [ACT] and [SECTION]) [ACT] and u/[SECTION]/[SECTION] of POC Act r/w sect. 120B [ACT] Plea of the accused : Pleaded not guilty Date of reserving the judgment 22.04.2019 Date of pronouncement of judgment : 25.04.2019 Final Order : Accused Om Praksh -Convicted Accused [ENTITY]- Acquitted JUDGMENT:
1). In this case accused Head Constable [ENTITY] and constable [ENTITY] who were posted FIR NO. 27/08, in Delhi Police has been charge sheeted for the commission of offence under [ACT], on the basis of complaint of one [ENTITY]. The charge has been framed u/[SECTION] [ACT] r/w [SECTION] [ACT] & [SECTION]) of [ACT] and u/[SECTION] [ACT], u/[SECTION] and [SECTION] punishable u/[SECTION] of [ACT] readwith [SECTION] [ACT] against both the accused.
2). As per the factual matrix of this case, on 09.08.2008, some quarrel had broken out between complainant and his niece, namely [ENTITY]. As a result of which she made a call to PCR and the inquiry thereof was assigned to [ENTITY] and constable [ENTITY] who were posted in PS [ENTITY].
Both the accused persons took his son [ENTITY], nephew [ENTITY] and brother [ENTITY] to the police station and beat them up. On the FIR NO. 27/08, next day morning, complainant reached to the police station to inquire about the complaint, where both the accused persons were present. After waiting for long accused [ENTITY] asked accused constable [ENTITY] to take him outside and make me understand how a case is disposed off. On his instructions constable [ENTITY] had demanded a sum of Rs.5000/- from the complainant. Complainant had shown his unwillingness, on that [ENTITY] scolded him and threatened him to arrest alongwith his family members and also to inform his department. After some negotiations, accused [ENTITY] scaled down the demand to Rs.3000/-. Complainant told him that he is only having Rs.1000/- at that time but he refused to settle for that amount and asked him to arrange the entire sum of money. After taking Rs.1000/- from his brother, complainant offered the payment, same was refused by [ENTITY] Om FIR NO. 27/08, [ENTITY] and asked constable [ENTITY] to make me understand. [ENTITY] told me to make the remaining payment of Rs.1000/- by the evening whereas [ENTITY] on the insistence of constable [ENTITY] accepted a sum of Rs.2000/- from the complainant at that time.
3). In order to make the remaining payment of Rs.1000/- [ENTITY] called the complainant on the next day at 6.00 pm in main Bazaar, where on the next day, [ENTITY] met him and demanded the remaining sum of Rs.1000/-, again complainant insisted to settle for a sum of Rs.500/- but accused [ENTITY] was affirmed to take the entire sum of Rs.1000/-. This conversation was recorded by the complainant in his recorder with the help of SI [ENTITY] who put the same into his pocket. The amount of Rs.500/- was paid to [ENTITY] through one unknown child, on the instructions of accused, this FIR NO. 27/08, amount was handed over to that unknown child. For the payment of remaining bribe of Rs.500/-, he was called again.
Thereafter, on 12.8.2008, complainant had given a written complaint to the Anti Corruption Branch(ACB). A raiding team was constituted. Pre-raid proceedings were demonstrated to the complainant and a sum of Rs.500/- which was brought by him as GC note were smeared with phenolphthalein powder. The raiding team of inspector [ENTITY], Inspector constable [ENTITY], panch witness and complainant, reached the spot. In front of Tezan Bag House, main Bazar, [ENTITY] accused was apprehended while demanding and accepting bribe for a sum of Rs.500/- from the complainant in the presence of panch witness. The GC notes were recovered from the possession of the accused and he was apprehended from the spot. Thereafter, FIR NO. 27/08, during the course of investigation, lateron constable [ENTITY] was also arrested in connection with the demand and acceptance of bribe from the complainant.
4). During investigation of this case, from the recording in the voice recorder, audio CD containing conversation of accused and complainant were prepared and seized. Accused were arrested. On the completion of investigation, charge sheet was filed against them.
5). Formal charge for commission of offence punishable u/[SECTION] [ACT] r/w [SECTION] [ACT] & [SECTION]) of [ACT] and u/[SECTION] [ACT], u/[SECTION] and [SECTION] punishable u/[SECTION] of [ACT] readwith [SECTION] [ACT] was framed against both the accused to which they pleaded not guilty and claimed trial.
FIR NO. 27/08,
6). In order to prove the charges in the present case prosecution has examined as many as 26 witnesses. The testimony of material witnesses out of the same is being reproduced here under:-
7 (i). PW-1 [ENTITY] . He is the complainant.
In his testimony he has stated that two officials reached at his house from PS [ENTITY] and one of them demanded Rs.5000/- as bribe to dispose off the complaint. He has further deposed about scaling down of demand of bribe amount to Rs.3000/- and making payment of Rs.2000/- on one occasion and Rs.500/- on another occasion. Thereafter remaining Rs.500/- at the time of raid. This witness has failed to identify both the accused persons being the same police officials who made demand and accepted the bribe from him.
FIR NO. 27/08, 7(ii). PW4 Inspector [ENTITY] He was posted in ACB. On 12.8.08 he was deputed by SI [ENTITY] alongwith complainant with a recording device. For the purpose of recording the conversation between the accused and complainant he put the recording device in to the shirt pocket of the complainant. He handed over the digital voice recorder to SI [ENTITY] who prepared the CD Ex.PW1/P8.
7(iii). PW-5 ASI [ENTITY] He was posted as M[ENTITY]M, made the entry of GC notes, Exhibits and CD which were deposited in malkhana in register No.19. He also proved the entry of RC register vide Ex PW5/C through which the CD and the exhibits were sent to FSL for examination. 7(iv) PW6 Sh. [ENTITY] He was on panch witness duty in Anti Corruption Branch. In his presence the IO prepared one CD Ex.PW6/P1 on FIR NO. 27/08,
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computer and prepared a detailed transcript Ex.PW1/F thereof.
7.(v) PW7 Sh.[ENTITY], Dy.
Secretary, CBSE:- He handed over the digital voice recorder to SI [ENTITY] on 12.8.08 who returned the same on 13.8.08 after recording the conversation. He prepared two CD of the recording contained in the recorder which were seized by the IO vide memo Ex.PW1/1. On 4.10.16 this CD was again played in his presence and on the basis of the same he issued certificate u/[SECTION]/A of the [ACT] regarding the correctness of the CD and conversation contained therein.
7.(vi) PW8 Sh. [ENTITY] This witness has stated about the quarrel taken place and arrival of the PCR and police and further stated he alongwith [ENTITY] and [ENTITY] were taken to the PS.
7.(vii) PW9 Sh. [ENTITY] This witness also FIR NO. 27/08,
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stated about some quarrel taken place 8-10 years back and he alongwith [ENTITY], [ENTITY] were taken to the PS and remained there for the whole night.
7.(viii.) PW10 Sh.[ENTITY] :- He stated about the quarrel and arrival of the PCR and also deposed that he alongwith [ENTITY], [ENTITY] were taken to PS and remained there for the whole night.
7.(ix) PW11 Sh.Bunty:- He is the panch witness and on 15.1.09 in the presence of two police officials namely [ENTITY] and [ENTITY], one CD was played by the IO. On seeing the recording, both the witnesses had identified the voice of one of the speaker to be of [ENTITY]. Memo regarding the same was prepared and the same is Ex. PW11/A.
7.(x) PW12 ASI [ENTITY] In his presence the CD was played and he identified the voice of [ENTITY]. He also perused the FIR NO. 27/08,
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transcript.
7.(xi) PW14 [ENTITY] He was posted as M[ENTITY] (R) PS [ENTITY]. He handed over the attested copy of roznamcha A and B dated 9.8.08 to 13.8.08 to IO. The roznamcha is Ex. PW14/B and chitha (duty roster of PS [ENTITY]) Ex. PW14/C. The roznamcha is regarding the daily diary entry regarding assigning the call of quarrel on 9.8.08 to accused [ENTITY] and constable [ENTITY].
7.(xii) PW15 Sh. [ENTITY] He was asked by Inspector [ENTITY] to witness the recording of voice sample of complainant [ENTITY] and [ENTITY] in FSL. He deposed that in FSL only [ENTITY] has come and accused [ENTITY] did not arrive and in his presence voice sample of [ENTITY] was recorded and he signed the relevant documents to this respect. His signature was also taken on cassette Ex.PW1/P9.
FIR NO. 27/08,
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7.(xiii) PW17 Sh. [ENTITY] Addl.
Commissioner of Police:- Being the competent authority to remove constable [ENTITY] and granted the sanction to prosecute him and the sanction order is Ex. PW17/A.
7.(xiv). PW17/A Ms. [ENTITY] (Retd.) Director FSL Rohini:- This witness gave a report Ex.PW17/A about the contents of the glass bottle RHW1.
7.(xv). PW19 Sh. [ENTITY], Inspector (Retd.):- He carried out part investigation of this case, arrested the accused constable [ENTITY] and also taken the voice sample of complainant and deposited the voice containing audio cassette in the malkhana.
7.(xvi) PW20 Sh. [ENTITY], Joint Commissioner:-. He accorded sanction to FIR NO. 27/08,
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prosecute accused [ENTITY] vide sanction order Ex.PW19/C.
7.(xvii) PW21 ACP [ENTITY] (Retd.):- He served notice to accused [ENTITY] for taking his voice sample but the accused neither refused nor agreed to give the same. An application was moved in the Hon'ble Court for the said purpose vide Ex. PW21/A and a detailed reply submitted by the accused is Ex.
PW21/A1. On the said application a detailed order in this regard is Ex. PW21/B. The witness further submitted that voice sample of the complainant was sent to FSL alongwith the exhibits.
7.(xviii) PW22 Inspector [ENTITY]
He filed the charge-sheet and stated that CD kept for investigation was played in his presence and on listening the conversation contained in the CD, SI [ENTITY] admitted that it was the same conversation which was reduced by him from the FIR NO. 27/08,
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digital voice recorder into the CD.
7.(xix) PW23 Dr. [ENTITY], Assistant Director(Physics):- This witness conducted the auditory analysis of audio recordings of the conversation of demand between the accused and the complainant. One CD Ex.Q1 containing audio file which is the questioned audio recording "Exhibit-Q1". The specimen voice sample is "Exhibit S1" which is contained in a audio cassette Ex.2. On auditory analysis, witness opined by way of his report Ex.PW-23/A that the speakers of voice "Exhibit Q" and "Exhibit S" are the voice of same person (i.e complainant [ENTITY]).
7.(xx) PW24 ACP [ENTITY] :- He was the RO of the case, he constituted the raiding party and apprehended the accused while receiving the bribe from complainant [ENTITY]. He FIR NO. 27/08,
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conducted the pre raid and post raid proceedings and made report thereof as Ex.PW1/B and Ex.PW1/C respectively. He also witnessed the recovery of the GC notes from the possession of the accused. He proved the wash proceedings of the hand and shirt.
He also prepared rukka Ex. PW24/A and sent the same for registration of the case.
8). In his statement u/[SECTION] [ACT] accused [ENTITY] has denied the incriminating material came up in evidence against him.
He denied that he demanded Rs.5,000/- from the complainant [ENTITY] for the false implication of complainant and his relatives.
He further stated that the matter was already settled by the complainant and there was no occasion for him to call them in the PS and to make the demand of money. The officials of [CASE NUMBER],
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were interested in the success of the raid hence they have manipulated the story to make out a false case against him.
(9). In his statement u/[SECTION] [ACT] accused constable [ENTITY] has denied the incriminating material came up in evidence against him.
He denied that he demanded or accepted any bribe nor negotiated in any manner for demand or acceptance of bribe. He has been falsely implicated in this case merely on the ground that on 9.8.08 he accompanied [ENTITY] [ENTITY] to whom a call was marked and he accompanied him in his official capacity and finding his name in DD entry, ACB officials introduced his name also in the present case wrongly.
10). Arguments advanced by Sh.[ENTITY] FIR NO. 27/08,
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[ENTITY], Ld. Addl.PP for the [ENTITY] and Sh.[ENTITY] counsel for accused [ENTITY] and Sh. [ENTITY], Ld.Counsel for the accused constable [ENTITY].
11). It is argued by Ld. Defence counsel for accused [ENTITY] that there are several inconsistencies and contradictions in the statement of witnesses and in view of the same the prosecution has failed to prove its case beyond reasonable doubt.
Ld. Counsel further submitted that PW1 did not disclose any version that would constitute the alleged initial demand by the accused persons as alleged by ACB. Ld. Counsel further argued that the alleged initial demand is not proved, demand acceptance on the spot are also not proved.
FIR NO. 27/08,
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It is further averred that the alleged recorder used by the prosecution in the present case has not been proved, hence the alleged CD recordings relied upon by the prosecution are further inadmissible in law.
He has further averred that non examination of the panch witness is also fatal to the prosecution case.
Ld. Counsel for accused [ENTITY] has placed reliance upon the following judgments:-
i) Ram Chander v. [ENTITY] 2009 (4) RCR (Cr.) 880 D[ENTITY];
ii) [PRECEDENT],
iii) Banarasi Das v. [ENTITY] of Haryana AIR 2010 SC 1589 and Gireeshan A vs. [ENTITY] of Delhi 2012 AD Delhi 8 D[ENTITY].
iv) Upendra Pradhan vs. [ENTITY] of Orissa (2015) CrLJ 2878 SC FIR NO. 27/08,
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v) [ENTITY] of Rajasthan v. Raja Ram (2003) CrLJ 3901 SC
vi) Ghurey Lal v. [ENTITY] of UP JT (2008) 10 SC
vii). Santa Singh v. [ENTITY] of Punjab 1956 SC 526 AIR (para 21).
viii) Ram Krishan Mithan Lal Sharma & Ors v. [ENTITY] of Bombay AIR 1955 SC 104.
ix). [PRECEDENT].
x) Hanumant Govind Nargundar v. [ENTITY] of Madhya Pradesh AIR 1952 SC 343.
xi) [ENTITY] of Punjab v. Madan Mohan Lal Verma VII 2013 SLT 180SC,
xii) B. Jayraj v. [ENTITY] of A.P. IV 2014 SLT 128 SC,
xiii) C. Sukumaran v. [ENTITY] Kerala I (2015) SLT 694 SC
xiv) Dashrath Singh Chauhan vs. CBI 2018(4) LRC518 SC.
xv). [ENTITY] of Madhya Pradesh v. Sheetla Sahai & FIR NO. 27/08,
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[PRECEDENT].
xvi) [PRECEDENT].
xvii) [ENTITY] & Anr. vs. CBI 2014 (10) LRC 96 D[ENTITY] xviii) Devesh [ENTITY] vs. [ENTITY] 2010(1) JCC 762 D[ENTITY].
(xix) [PRECEDENT]
12). On behalf of accused [ENTITY], Sh. [ENTITY] also argued that the prosecution has not been able to prove its case beyond reasonable doubt on account of several inconsistencies and contradictions in the statement of witnesses produced by the prosecution on to prove its case. He has further submitted that PW1 [ENTITY], who is the complainant of the case has not supported the FIR NO. 27/08,
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case of the prosecution and was declared hostile by the Ld. Addl. PP. Even during the cross- examination he has not named accused [ENTITY] at any point of time. He stated that he never seen accused [ENTITY] prior to the proceedings of this case in the court at any point of time.
It is further averred that name of accused [ENTITY] was introduced in the complaint as in DD No.33A dated 9.8.08 the name of accused [ENTITY] was mentioned.
It is further averred that the prosecution has relied upon two digital files namely Rec 03 and Rec 04 but none of the files has any concern with the accused [ENTITY] as per the prosecution itself. It is further averred that identity of the accused [ENTITY] is also disputed as there were two police officials in the PS namely [ENTITY] No.1605 and No.808 and no TIP of accused [ENTITY] was sought by FIR NO. 27/08,
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the prosecution at any point of time and none of the witnesses of the prosecution has identified accused [ENTITY] during the trial of the case.
On the point of sanction of prosecution of accused [ENTITY] it is averred that the sanction was granted mechanically without application of mind.
13). It is argued by Ld.Addl.PP that complainant and all the prosecution witnesses have supported the case of prosecution on all material aspect. The witnesses have corroborated each other as regards the demand and acceptance of bribe. Complainant has fully supported the case of prosecution. Complainant as well as prosecution witnesses have proved the relevant documents pertains to the investigation of this case.
FIR NO. 27/08,
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14). During the course of the arguments it is pointed out by Ld. Addl. PP that there is a typographical error in the charge framed against the accused persons. It is submitted that the date of incident has been mentioned in the formal charge as "13.8.2018" whereas the incident is pertains to "13.8.2008" when the raiding team went to the spot on the complaint of the complainant. The document filed alongwith the charge sheet has been relied upon to show the current date. Ld. Defence counsel for both the accused persons is having no objection if the typographical error is rectified at this stage in the judgment itself.
In these circumstances, on perusing the material on record filed alongwith the charge- sheet the date 13.8.2018 in the amended charge dated 5.6.2018 be read as "13.8.2008".
FIR NO. 27/08,
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15). In order to prove the charges against the accused persons, prosecution is required to prove the following points :-
(i) Accused [ENTITY] and constable [ENTITY] being the public servant were working as Head constable and constable respectively in Delhi Police.
ii) Being posted in PS [ENTITY] they were assigned the complaint on PCR call of the niece of complainant
iii). Whether there was any initial demand of Rs.3,000/- as bribe by accused from the complainant in order to dispose off a complaint against the complainant?
(iv) Whether the accused demanded and accepted a sum of Rs.2,000/- from the complainant as bribe , thereafter, further demanded and accepted remaining amount of Rs.500/- as bribe.
FIR NO. 27/08,
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v) Whether the accused had demanded and accepted a sum of Rs.500/- as bribe from the complainant at the time of raid?
(vi) Whether the accused consciously accepted the bribe at the time of trap?
(vii) Whether there was a recovery of bribe amount of Rs.500/- from the accused?
16). The first point is whether accused [ENTITY] and [ENTITY] [ENTITY] were working as head constable and constable respectively in Delhi police in the capacity of public servants on the day of incident.
The testimony of PW16 [ENTITY] retired ACP is important to this respect and this witness has provided the bio-data of [ENTITY] as Ex.PW16/B and bio-data of constable [ENTITY] as Ex.PW16/C. Both theses documents has been produced in his testimony to establish that FIR NO. 27/08,
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both the accused were public servants and posted in Delhi Police. Although this factum has not been disputed from the side of any of the accused. Therefore, it is established that both the accused persons were working as police officials in Delhi Police and were the public servant on the day of incident.
17). In second point, Now the question arises whether the accused persons on 9.8.08 while being posted in PS [ENTITY], were assigned the complaint on PCR call of the niece of the complainant. In order to establish this fact the statement u/[SECTION] of the accused [ENTITY] is important. He has not denied this question that he alongwith co accused [ENTITY] while posted at PS [ENTITY] on the receipt of a PCR call which was assigned to him he alongwith accused [ENTITY] visited the house of complainant. In response to FIR NO. 27/08,
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this question, he answered that the call was already resolved amicably by the parties and complaint was filed on the same day.
Whereas, accused constable [ENTITY] in his statement u/[SECTION] [ACT] has admitted this fact.
In order to further establish the prosecution has examined PW [ENTITY] who was working as M[ENTITY](R) and provided the copies of roznamcha register A and B and duty roster dated 9.8.08 to 13.8.08 to the IO of the case. Ex.PW14/B is the roznamcha of 9.8.08 of 12.00 to 12.00 pm shows the assignment of the complaint on PCR to both the accused persons.
Apart from this, the chitha Ex.PW14/C is also produced in evidence of PW14 to show the posting and duty of both the accused persons in PS [ENTITY] on 9.8.2008 from 8.00 pm to 8.00 am. Therefore, in view of the above discussion it is established that both the accused persons were FIR NO. 27/08,
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posted in PS [ENTITY] on 9.8.08 and were assigned the complaint of quarrel in connection with the present case.
18). Prosecution is required to answer the following that :-
(iii) Whether there was any initial demand of Rs.3,000/- as bribe by accused from the complainant in order to dispose off the complaint against the complainant?
iv) Whether the accused demanded and accepted a sum of Rs.2,000/- from the complainant as bribe, thereafter, further demanded and accepted a sum of Rs.500/-.
To prove the existence of initial demand by the accused persons, the testimony of PW1 Sh. [ENTITY] is important. He is the complainant, on the basis of his written complaint case was registered FIR NO. 27/08,
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against the accused persons on account of demand of bribe of Rs.3000/- from the complainant. In his testimony PW1 has stated that two police officials had come to his house in connection with the quarrel taken place between complainant and his niece. He further stated that on the next morning when he visited PS [ENTITY] he met with two police officials, one of the police officials had demanded a sum of Rs.5000/- as bribe from him to dispose off the matter but when he refused to pay the money, the amount of bribe was further scaled down to Rs.3000/- and the police officials directed the complainant to make the payment of Rs.3000/- at any cost.
It is further deposed by PW1 that he was having Rs.1000/- with him and he arranged Rs.1000/- from outside the PS and then paid Rs.2000/- to the said police official. Even after receiving Rs.2000/-, from PW1, the said police FIR NO. 27/08,
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official insisted upon the payment of entire Rs.3000/- to him. Accordingly, complainant had promised the said police officials that he would arrange the rest of Rs.1000/- in the evening only then, he agreed to take Rs.2000/- which was given by PW1 to him.
It is further deposed by PW1 that he approached AC Branch and lodged a complaint regarding the demand and acceptance of bribe by the accused. PW4 Inspector [ENTITY] of AC branch had accompanied him in the area of [ENTITY] PS. He was having the recording instrument with him and he got the conversation recorded which was taken place between him and the said police official [ENTITY] accused [ENTITY]. He further deposed that accused had demanded remaining Rs.1000/- but complainant gave him only Rs.500/- at that time and the same was given through a boy who was present there.
FIR NO. 27/08,
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19). In order to prove the initial demand of bribe by the accused persons, the testimony of PW [ENTITY] is the only piece of evidence. There is no other witness of this initial demand and PW1 is the only person who was having the knowledge of initial demand has deposed regarding the same.
The testimony of PW1 on the aspect of initial demand is remained unbreached and unchallenged. In his cross-examination of PW1, has stated that when he visited the PS first time on the next day of incident, none of the accused persons in the court present had not made any demand or acceptance of bribe from the accused. In his cross examination PW1 has denied the suggestion that none of the police official ever demanded bribe of Rs.5000/- from him to dispose off the matter and he further denied the suggestion that none of the police official told him that he had to pay Rs.3000/- at any cost. He FIR NO. 27/08,
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further denied the suggestion that none of the police official agreed to accept or demand further Rs.3000/- from him.
20). Despite not identifying the accused in the court being the same persons who had made demand of bribe on the next day of incident, the factum of initial demand cannot be ruled out since PW1 has never stated that no demand of bribe at all made from him. He has just not identified the accused persons being the same who had demanded the bribe from him. In his testimony, he has not identified the accused persons due to the reason that due to lapse of time he was unable to identify any of the police officials. It is true that due to the lapse of time, a witness may not able to recognize the person involved in the alleged offence but testimony of the witness cannot be discarded only on this point. The commission of FIR NO. 27/08,
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offence alleged against the accused is to be in the totality of circumstances and the testimony of all the witnesses. Merely not identifying as the person who had initially demanded the bribe is not going to absolve the accused when factum of initial demand by police official is proved. Now the question which is required to be answered by the prosecution that whether the accused persons were the same police officials who has been indicated by PW1 in his testimony who were involved in the demand and acceptance of bribe.
21). In order to establish the identity of the accused persons the testimony of RO PW24 is important. He has deposed about the pre raid proceedings and participation of the PW1 in the same. He has proved the factum of bringing bribe money of Rs.500/- consisting of five notes of 100 denomination which is also corroborated by PW1 in FIR NO. 27/08,
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his testimony. He has also supported the testimony of PW1 on the point of leaving the ACB office to conduct the raid upon the accused for the demand and acceptance of the bribe.
PW24 has stated that "Thereafter, the complainant and panch witness were proceeded further and I alongwith other members of the raiding party had followed him and at about 6.20 pm we all took our position. At about 6.40 pm, the accused present in the court today, [ENTITY] came there on a motorcycle near Tezan Bag House, main market and he started talking with the complainant and as soon as the accused taken the bribe from the complainant, panch witness had signaled towards the members of the raiding party and on receiving the signal at 6.35 pm, we immediately reached there and apprehended the accused [ENTITY] alongwith the motorcycle. The accused was identified by the FIR NO. 27/08,
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complainant as well as by the panch witness to be the same person who demanded and accepted the bribe of Rs.500/-."
From the testimony of PW24 it is revealed that the accused [ENTITY] was the person who was present at the spot and the transaction regarding the demand and acceptance of bribe was taken place between him and the complainant. This witness has further deposed that GC notes were recovered from the possession of accused [ENTITY] and taken into possession vide seizure memo Ex. PW1/D. It was the accused who was apprehended at the spot and thereafter he was handed over to the IO Inspector [ENTITY] who arrested him vide arrest memo Ex. PW1/G. PW25 also proved the personal search of accused [ENTITY] and also proved the seizure of motorcycle of accused [ENTITY] from the spot vide memo Ex. PW25/A. FIR NO. 27/08,
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PW2 ASI [ENTITY] also identified the accused [ENTITY] who was present there at the spot when accused was apprehended and he correctly identified the accused [ENTITY] in his cross-examination. Defence counsel has not given any suggestion on his presence at the spot that someone else was present instead of the accused [ENTITY].
22). From the testimony of these witnesses it is established that the person who came to the spot was the accused [ENTITY] only. No other person except him was present there at the time of demand and acceptance of bribe from the complainant at the time of the raid. These witnesses have proved the identity of accused [ENTITY] only at the time of the raid but the identity of the accused is also required to be proved at the time of initial demand of bribe from FIR NO. 27/08,
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the complainant. Complainant has stated that due to lapse of time he is not able to identify the accused being the same person who demanded bribe at the time of raid as well as at the time of initial demand. But PW1 has not stated in his testimony that the police official who initially demanded bribe from him was different from the person who met him at the spot at the time of raid. Meaning thereby, the police official, who made the initial demand; who demanded and accepted the amount of Rs.2000/- prior to the raid; who demanded and accepted Rs.500/- through a boy; and who demanded and accepted the bribe of Rs.500/- at the time of raid was one and the same person. From the testimony of PW24 and PW25 the identity of the accused [ENTITY] has been established that he was the same police official.
Therefore, it is proved that it was the accused [ENTITY] who had made initial demand FIR NO. 27/08,
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of Rs.3000/- as bribe from the complainant in order to dispose off the complaint against the complainant.
23). Similarly, there is no other witness except the complainant PW1 as to the factum of demand and acceptance of Rs.2000/- from the complainant as bribe and PW1 in his testimony has specifically stated that he made the payment of Rs.2000/- as bribe to the Head Constable. Accused has failed to breach the testimony of this witness on this point rather he has denied the suggestion put up by the defence counsel that none of the police officials accepted Rs.2000/- from him.
Therefore, in view of the above discussion the identity of accused [ENTITY] has been established so is the initial demand and acceptance of Rs.2000/- as bribe prior to the raid.
24). In this case there is another payment of FIR NO. 27/08,
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Rs.500/- as bribe to the accused [ENTITY] prior to the raid. In his cross-examination by Ld. Addl. PP, PW1 has stated that:
"It is correct that on that day when I met with [ENTITY], I again offered him Rs.500/- instead of Rs.1000/- but he got annoyed and he insisted upon to pay Rs.1000/- only. It is correct that thereafter, Rs.500/-was not taken by the [ENTITY] himself but he told me to give the said money to one boy who was called by him from the nearby place and then I handed over Rs.500/- to the said boy at the instance of [ENTITY]."
In the cross-examination of this witness, no suggestion whatsoever has been given in order to deny the factum of demand and acceptance of Rs.500/- by the accused through one boy. Therefore, in view of totality of circumstances and evidence, this demand and acceptance of Rs.500/- is also proved beyond reasonable doubt.
FIR NO. 27/08,
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25). v) Whether the accused had demanded and accepted a sum of Rs.500/- from the complainant at the time of raid? (vi) Whether the accused consciously
accepted the bribe at the time of trap?
(vii) Whether there was recovery of bribe amount of Rs.500/- from the accused?
On these points, I am of the view that In the present case prosecution is not able to examine the panch witness as he was expired. In these circumstances, the testimony of the complainant PW1 is vital for the case of the prosecution. It has already been held by Hon'ble Supreme court in catena of judgements that reliance can solely be placed upon the testimony FIR NO. 27/08,
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of complainant despite the fact that panch witness has not been examined. Although, testimony of complainant PW1 has not been corroborated on all the facts surrounding at the time of the trap when the alleged demand and acceptance of bribe has taken place. In these circumstances, the testimony of PW1 is to be seen in the light of the testimony of other witnesses examined by the prosecution. So far as the other witnesses which has been examined by the prosecution are the members of the raiding party which also includes the RO and the IO. IO PW25 had joined the proceedings after the conducting of the raid. PW24 has identified the accused who was apprehended at the spot and PW25 had further affirmed the identity of accused when he arrested him immediately after the raid. Prosecution witnesses have already proved the initial demand and acceptance of the bribe by the accused. [ENTITY] From the testimony of FIR NO. 27/08,
- : 43 : -
PW1 and PW24 and PW25 the identity of the accused is already established that he was the public servant who has been referred by PW1 in his testimony as "police official" or "[ENTITY]".
26). In his testimony PW1 has stated that he joined the trap proceedings of this case and handed over five currency notes of Rs.100 denomination to the RO. On the said currency notes some powder was applied in his presence.
He also deposed about the hand wash demonstration in the pre raid proceedings, which also supported by PW24, RO.
PW1 has deposed that "First of all we reached near a bag shop and then the police officials were checked in the PS where one police officials who had demanded money had met us there. The said police official had demanded Rs.500 bribe from me and then I handed over the FIR NO. 27/08,
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money which I was keeping in my pocket to the said police official and then he was apprehended and bribe money was recovered from him."
He further deposed in his cross examination by Ld. Addl. PP that "It is correct that thereafter the said [ENTITY] reached at the spot in his motorcycle at about 6.40 pm and thereafter he asked from me about remaining bribe of Rs.500 and on asking by the said [ENTITY], I took out the GC notes from my pocket to the said [ENTITY] and he received the bribe on his right hand."
In his cross-examination also this witness, stick to his testimony given in chief examination and denied the suggestion that no demand and acceptance of bribe of Rs.500 had taken place on the day of incident i.e. 13.8.2008. Infact he has stated that he is not able to identify the accused due to lapse of time but he has affirmed the demand and acceptance of the bribe FIR NO. 27/08,
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on 13.8.08.
From the testimony of this witness it is already established that bribe of Rs.500 was paid only on the demand made by the accused [ENTITY]. The factum of initial demand and acceptance of Rs.2000 and Rs.500 respectively on two occasions already been proved by the prosecution. The demand and acceptance at the time of raid has been the continuation of the initial demand and acceptance, therefore, in the totality of circumstances and in view of the deposition of the witnesses it can easily be sumed up that accused [ENTITY] had consciously accepted the bribe at the time of trap.
27). So far as recovery of bribe amount of Rs.500 from the accused, PW1 has stated in his testimony that accused was apprehended on the spot and bribe money was recovered from him.
FIR NO. 27/08,
- : 46 : -
This fact is further corroborated from the testimony of PW24, the RO of the case, who stated that as soon as the accused had taken the bribe from the complaint panch witness had signaled the members of raiding party and he reached the spot and apprehended the accused [ENTITY] and panch witness got recovered the bribe money of Rs.500 from the right hand of the accused. He tallied the recovered notes with the raid report and notes were tallied, the right hand wash of accused [ENTITY] was taken and hand wash bottles were sealed and handed over to the IO of the case. The hand-wash solution is also proved by PW17A Dr. [ENTITY] who has given FSL report regarding the solution of the hand-wash. The testimony of the witnesses could not be discredited in their cross-examination. Therefore factum of recovery of bribe amount of Rs. 500/- from the accused is also established.
FIR NO. 27/08,
- : 47 : -
28). The above observation on the commission of offence is further found support from the testimony of PW1 who has identified his signature on the complaint Ex.PW1/A as well as pre-raid Ex.PW1/B and post raid document Ex.PW1/C. In the present case on some points the witness has resiled from his previous recorded statement, therefore, Ld. Addl. PP sought permission to cross examine this witness despite the fact that witness has resiled from his previous statement, it is well settled principle of law that has been founded through various judgement of Hon'ble Supreme Court and High court that testimony of such witness cannot be discarded totally. Reliance can be placed in support of the case of the prosecution on the material aspect on which the testimony of such witness has supported FIR NO. 27/08,
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the case of the prosecution.
29). It has been argued by Ld. Defence counsel that the audio recording which has been produced by the prosecution during the course of the prosecution evidence is not reliable source of evidence due to the reason that original recording device has not been produced. The certificate u/[SECTION] of the [ACT] was given in the year 2016 whereas the FIR in the present case was registered in the year 2008, therefore, there is a gap of as many as 8 years in issuing the 65B certificate. It has been further argued that the recording are not admissible in evidence in view of the judgment of Hon'ble Supreme court in [ENTITY]'s Case, [ENTITY]'s case.
It has been further stated that as per [SECTION] of [ACT] and 79A of [ACT], the FSL which has FIR NO. 27/08,
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given the report of the audio recording is not competent enough to give such report, therefore, render the same as inadmissible piece of evidence.
30). PW1 has proved the factum of recording of conversation between complainant and the accused. In his written complaint itself complainant has mentioned about accompanying by a police official at the time when Rs.500/- was paid as bribe to the accused through a boy present alongwith him. In his chief examination PW1 has stated that the police official who accompanied him to area of PS [ENTITY] got the conversation recorded which was taken place between him and the said police official.
Thereafter, in the cross-examination by Ld. Addl. PP, he has shown his ignorance about the transaction appearing in the recording in the CD FIR NO. 27/08,
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Ex. P1/P8 and written transcript thereof Ex. PW1/F. He has further denied that on 20.5.11 he himself had visited the FSL and his voice sample was taken by the FSL expert in audio cassette. During the course of examination of PW1, it was observed that CD played in the laptop in the open court and voice in audio conversation recorded in the CD is clearly audible whereas PW1 has shown his ignorance about the entire conversation recorded played in the CD and he failed to identify any of the voice appearing in the digital files. Despite showing his ignorance on the content of the recording, still same is a reliable piece of evidence due to the fact that PW15 Sh. [ENTITY] being the panch witness has proved the factum of taking voice sample of complainant [ENTITY] by FSL expert at FSL laboratory on 20.5.2011. He had signed the pullanda of the cassette. His own signature upon the same had also not been denied FIR NO. 27/08,
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by PW1.
Reliability of voice recording is further established by PW19 [ENTITY] Retired Inspector who witnessed the collecting voice of the complainant Sh. [ENTITY] in FSL Rohini. Similarly, after PW 23 [ENTITY] Assistant Director FSL has proved the matching of voice contained in the CD with the sample voice of the complainant. And he deposed that Ex.P1 and Ex.S1 are probable voice of the same([ENTITY]). His detailed report in this regard is Ex. PW24/A. He has also examined the CD as well conversation contained therein as well as the audio cassette and after examination he opined that there was no indication of any kind of alteration in the audio recording contained in the CD. Therefore, there is no possibility of any alteration and tampering in the voice recording contained in the CD. Certificate 65B Ex.PW7/A is also there to establish the authenticity of recorded FIR NO. 27/08,
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conversation. Written transcription Ex.PW1/F is in consonance with the CD and containing direct material with respect to demand and acceptance of Rs.500/- through a boy. There is also an acknowledgement of Rs.2500/- by the accused [ENTITY] prior to the raid. The defence failed to breach the testimony of these witnesses.
31). Although, only complainant PW1 has given sample of his voice but there is no sample voice which could lead to the conclusion that the conversation with the complainant contained in the CD is of accused. Since there is a refusal from the side of the accused in giving his ample voice and no plausible explanation to this respect has been given therefore an adverse inference can be drawn against him that the other voice contained in the CD was the only voice of accused [ENTITY]. Moreover case of prosecution also found support from the testimony of PW7 [ENTITY] FIR NO. 27/08,
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who prepared the CD of the recording and then got the signed from panch witness, complainant and SI [ENTITY] PW4 in whose presence the CD was played by the IO.
32). So far as averment of Ld. Counsel that 65B was given after 8-9 years, I am of the view that in the Paras Jain vs. [ENTITY] of Rajasthan Judgement this position has already been clarified that 65B certificate can be given at any stage. Therefore, the certificate Ex.PW7/A given by Sh. [ENTITY] is an admissible piece of evidence and reliance can easily be placed upon the same.
33). So far as the averment of Ld. Counsel that FSL laboratory was not notified, report prepared by PW 23 Sh. [ENTITY], is not admissible. On this point I am of the view that no FIR NO. 27/08,
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notification of the laboratory is not going to affect the report of an expert who is fully competent and having the requisite qualification to give such report. Nothing has been asked in his cross- examination by ld. Defence counsel that PW23 was having no requisite qualification of examining the CD and the voice contained therein on the date when the report Ex.PW23/A was prepared by him. Moreover he is a public servant who gave report while discharging his official duties, no doubt upon the report on said technical ground is not sustainable.
34). It has been averred by defence counsel that sanction order in the present case has been passed on the basis of incomplete documents. The CD and the documents were not perused by the sanctioning authority therefore the sanction order is illegal.
FIR NO. 27/08,
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It is well settled law that the sanction is solemn and sacrosanct at which affords protection to the government servant against frivolous prosecution. The validity of sanction ultimately depends upon the entire material, relevant fact and evidence placed before the competent authority so that the competent authority has full knowledge of facts to take decision either to grant the sanction or deny the same in relation to the public servant against whom sanction is sought.
Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalized guidelines in that regard. Reliance is placed upon [ENTITY] Singh Badal V. [ENTITY] of Punjab, (2007) 1 SCC 1.
Further reliance is placed upon CBI v. [ENTITY] [ENTITY] Aggarwal, (2014) 14 SCC 295 where Hon'ble Supreme Court has held FIR NO. 27/08,
- : 56 : -
"prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by competent authority, adequate material for such grant was made available to the said authority".
In the present case, PW20 Sh. [ENTITY], Joint Commissioner of Police has been examined as the competent authority which accorded the prosecution sanction against the accused [ENTITY]. This witness has stated that after having perusing the file and various documents annexed and upon being satisfied, the sanction order Ex.PW19/C to prosecute the accused [ENTITY] was granted. The Sanction order states about the brief facts of this case alongwith the details of the perused material. The sanction was accorded on perusing the FIR, statement of witnesses U/[SECTION] [ACT], copy of transcription of conversation between complainant FIR NO. 27/08,
- : 57 : -
and accused and FSL reports. Ld. Defence counsel failed to establish that the document which were not perused by him, were material enough to discard the sanction. Therefore, sanction order of PW20 being the competent authority does not suffer from any infirmity.
35). In the present case charge has been framed u/[SECTION] [ACT] readwith [SECTION] [ACT] and 7/13(2) [ACT] and [SECTION] [ACT], [SECTION] [ACT] readwith [SECTION] [ACT]. So far as role of accused constable [ENTITY] is concerned, he has not been identified by PW1 in his testimony and he was also not present at the time of receipt of money. In his complaint Ex.PW1/A complainant has stated about his name being the person who had made the demand on the instruction of co-accused [ENTITY], a demand of bribe for disposing off the matter against him. But there is no FIR NO. 27/08,
- : 58 : -
corroborating piece of evidence like testimony of RO, IO and other members of the raiding team unlike [ENTITY], who was identified by them to reach the conclusion that accused [ENTITY] was the police official who had made demand of bribe and accepted the same. The only person who dealt with constable [ENTITY] was complainant himself and he has failed to identify in the court due to lapse of the time. In the testimony of PW 19 retired inspector [ENTITY], it has come out that he had seen the duty roster on 10.8.08 and 9.8.08 bearing the name of two [ENTITY] has been mentioned. Actually who was the concerned [ENTITY] whose name is mentioned in the complaint, was involved in the commission of the offence is not clear.
In such circumstances, accused constable [ENTITY] is entitled to the benefit of doubt for the want of evidence against him.
FIR NO. 27/08,
- : 59 : -
Therefore, commission of offence by accused [ENTITY] under [ACT] is not proved in view of above observation.
Consequently, in these circumstances, the charges u/[SECTION] [ACT] does not stand against both the accused persons.
36). So far as charges U/[SECTION] [ACT] is concerned, same deals with the punishment for extortion. From the testimony of prosecution witnesses the ingredients of extortion is also not proved as PW1 in his testimony has stated that demand of bribe made by accused [ENTITY] is only to dispose off the complaint against him.
There is no clear evidence have come which shows that the demand was made by the accused by putting him under the fear of any injury and thereby, dishonestly induced him to pay bribe FIR NO. 27/08,
- : 60 : -
under any fear. Therefore, charges U/[SECTION] [ACT] does not made out against the accused persons.
37). Therefore, in view of the above discussion, the prosecution has successfully proved that accused [ENTITY] was working as Head constable in Delhi Police being the public servant; that he was assigned the complaint on PCR call of the niece of complainant; that there was any initial demand of Rs.3,000/- as bribe by accused [ENTITY] from the complainant in order to dispose off the complaint against the complainant; that accused [ENTITY] demanded and accepted a sum of Rs.2,000/- from the complainant as bribe, thereafter, further demanded and accepted a sum of Rs.500/-; that accused [ENTITY] had demanded and accepted a sum of Rs.500/- from the complainant at the time of raid; that accused [ENTITY] consciously FIR NO. 27/08,
- : 61 : -
accepted the bribe at the time of trap; that there was recovery of bribe amount of Rs.500/- from the accused [ENTITY].
38). In view of the above observations, case against accused constable [ENTITY] is not proved therefore he is acquitted from all the charges of commission of offence. Let bail bond u/[SECTION] [ACT] be furnished.
39). However, the case has been proved against accused [ENTITY].
Hence, I hold that the charges under [ACT] are proved beyond any reasonable doubt.
Charges u/[SECTION] [ACT] and [SECTION] [ACT] are not proved against [ENTITY].
40). Accused [ENTITY] is thus, held guilty of having committed the offence u/[SECTION] and FIR NO. 27/08,
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[SECTION] punishable u/[SECTION] of [ACT], accordingly convicted for the commission of aforesaid offence. Let he be heard on the point of sentence on the next date.
([ENTITY]) Spl. Judge (PC ACT)-02/ACB:
Rouse Avenue Courts:New Delhi Announced in the open court on 25.4.2019 FIR NO. 27/08,