-1- IN THE COURT OF MS.[ENTITY]/SPECIAL JUDGE (PC ACT)(ACB)/CENTRAL05/TIS HAZARI COURTS/DELHI CC NO: 22/20[SECTION] FIR NO: 41/200[SECTION] PS Anti Corruption Branch U/[SECTION] POC ACT and [SECTION] [ACT] C ase ID No.02401R04774620[SECTION] STATE Versus 1. [ENTITY] S/o Sh. S.L.Chaturvedi R/o 60/12, Meetha Pur Extn. Badarpur, New Delhi 2. [ENTITY] S/o Sh. Phool Kumar R/o C3/27, Sector 11, Rohini, Delhi 3[ENTITY] S/o Sh. [ENTITY] R/o C10, Typed II, New Police Line Kingsway Camp, New Delhi09 Date of institution : 16.09.20[SECTION] Date of receiving by this Court : 19.10.2015 Date of reservation of judgment : 11.05.2016 Date of pronouncement of judgment : 25.05.2016 J UDGMENT 1. Accused [ENTITY], [ENTITY] and [ENTITY] have been chargesheeted by PS ACB for committing offences punishable u/[SECTION] of the [ACT] FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 1 of 33 -2- (hereinafter called the [ACT]) and [SECTION] [ACT] for demanding and accepting bribe from the complainant [ENTITY] on 17.12.200[SECTION] near the godown of complainant at Mehrauli Road, Delhi. FACTS OF THE CASE 2. Briefly stated facts of the case as per the chargesheet are that on 16.12.200[SECTION], complainant [ENTITY] S/o Sh. [ENTITY] came to ACB Office and informed that SI [ENTITY], Chowki Incharge, [ENTITY], Ct[ENTITY] and reporter [ENTITY] were demanding bribe from him. On such information complainant was provided with Audio/Video recorder from ACB. He then along with SI [ENTITY], ACB Branch recorded the conversation qua bribe and handed over the recorder to SI [ENTITY]. On 17.12.200[SECTION], complainant [ENTITY] approached ACB and got his statement recorded with ACB in the presence of Panch Witness [ENTITY]. 3. In his statement before ACB, complainant [ENTITY] stated that he is a scrap dealer and having his godown at J731, [ENTITY], Mahrauli Road and that for the last several days Chowki Incharge [ENTITY] namely SI [ENTITY] and Ct[ENTITY] were harassing him for money and were threatening him to get his godown closed in case their demand for Rs.1 lac was not fulfilled. On this, complainant contacted one reporter namely [ENTITY] who was a frequent visitor to police chowki. The reporter informed the complainant that he had settled the matter of the complainant with the police officials for Rs.75,000/. Accused [ENTITY] also told the complainant that he FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 2 of 33 -3- had to pay a monthly amount of Rs.4,000/ to SI [ENTITY], whereafter, they will not trouble him. Since he was against paying bribe, the complainant reached the ACB on 16.12.200[SECTION] where he was handed over one AudioVideo recorder. He then along with SI [ENTITY]/ACB went to Chowki [ENTITY] where he recorded the entire transaction of exchange of money amounting to Rs.60,000/ from the hands of complainant to accused [ENTITY], [ENTITY] Kumar and [ENTITY]. Complainant also gave Rs.2,000/ to one Constable to win his confidence. The bribe amount of Rs.60,000/ was in the denomination of Rs.500/. Out of Rs.60,000/, Rs.10,000/ was counted by accused [ENTITY] and Rs.50,000/ was counted by accused [ENTITY] and [ENTITY]. Complainant further informed ACB that he had brought the remaining amount of Rs.15,000/ which is to be paid to accused [ENTITY], Chowki Incharge through accused [ENTITY]. 4. Thereafter, Insp. [ENTITY] got the complaint signed by complainant [ENTITY] and Panch Witness [ENTITY]. He, too, also countersigned the complaint. Complainant [ENTITY] then handed over 30 currency notes in the denomination of Rs.500 amounting to Rs.15,000/ to Insp. [ENTITY] who asked Panch Witness [ENTITY] to note down the numbers of the GC notes in the raid report. Thereafter, the GC notes were smeared with Phenolphthalein Powder by Insp. [ENTITY] who asked Panch Witness to touch these notes with his right hand and then to dip his right hand in a colourless liquid of Sodium Carbonate solution which turned pink. He also explained the reaction of the Phenolphthalein Powder to the complainant and Panch Witness. He further instructed the complainant to remain close to Panch Witness to enable the Panch Witness to hear the conversation FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 3 of 33 -4- between the complainant and accused [ENTITY], to observe the transaction of Rs.15,000/ and then to give a signal to the raiding party by placing his right hand twice over his head, after he was satisfied that bribe money had been demanded and accepted. The Phenolphthalein Powder treated GC notes were then handed over to the complainant [ENTITY] who kept the same in his left side upper pocket of his shirt. After washing hands, Insp. [ENTITY] handed over phenolphthalein powder bottle to Duty Officer and took raid box with him. At about 10.50 am, SI [ENTITY]/ACB handed over two CDs (CD1 and CDII) recorded by the complainant to Insp. [ENTITY] containing audio video recording of receiving bribe by accused SI [ENTITY], Const[ENTITY] and [ENTITY]. The relevant portion of the CDs were seen and the transcription of the relevant portion was also read in presence of the complainant and Panch Witness. Both the CDs were sealed separately with the seal of HL and were seized. At about 11.40 am, Insp. [ENTITY] along with Insp. [ENTITY], other police officials, Panch Witness and the complainant left the AC Branch in a private vehicle bearing registration No. DL3CT0906. The complainant was instructed to call accused [ENTITY] to fix the time and place of meeting. At about 1:05 pm, raiding team reached Mehrauli Road near the complainant's godown No. J731, [ENTITY] and parked the vehicle at a distance. The complainant and Panch Witness were again briefed. At 1:15 pm, Insp. [ENTITY] also briefed the staff and directed them to take their positions. At about 1:55 pm, when the complainant and the Panch Witness were sitting on a cot outside the godown of the complainant, accused [ENTITY] came there in a white Alto car which was driven by another person. He called the complainant by giving signal and started talking with the complainant. Panch Witness also started hearing FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 4 of 33 -5- the conversation of the complainant and the accused [ENTITY]. At about 2:00 pm, Panch Witness gave predetermined signal. On receiving the signal, Insp. [ENTITY] along with members of raiding party immediately reached there. Panch Witness told Insp. [ENTITY] that accused [ENTITY] had demanded illegal gratification for SI [ENTITY], Chowki Incharge [ENTITY] and had received the same with his right hand from complainant and had started counting the same. At this, Insp. [ENTITY] introduced himself to accused [ENTITY] and overpowered him with the help of members of the raiding party. Panch Witness [ENTITY] recovered the bribe money of Rs. 15,000/ in the denomination of Rs.500/ each from accused [ENTITY]. The details of the currency notes recovered from accused [ENTITY] were tallied with the details of the currency notes already mentioned in the Raid Report. On matching them, the recovered 30 GC notes in the denomination of Rs.500/ were seized. Wash of both the hands of the accused [ENTITY] were taken in colourless solution of Sodium Carbonate which turned pink. The pink colour wash was then transferred in two separate bottles. The sample of the wash were also taken into two separate bottles. All the four bottles were sealed with the seal of HL and marked as RHWI, RHWII, LHWI and LHWII. Thereafter, Insp. [ENTITY] made enquiries from Panch Witness [ENTITY] who narrated the incident of demand and acceptance of already settled illegal gratification by accused [ENTITY] for accused SI [ENTITY], Chowki Incharge [ENTITY]. After completion of proceedings, Insp. [ENTITY] was called at the spot who further investigated the case, prepared site plan, recorded statements of witnesses and arrested accused [ENTITY]. When Insp. [ENTITY]/IO returned to AC Branch, it was revealed that another team led by FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 5 of 33 -6- Insp. [ENTITY] had been sent for enquiry and to verify the facts from SI [ENTITY]/Incharge [ENTITY] and Const. [ENTITY], PS Sangam Vihar. 5. It is further the case of the prosecution that when the team of police officials comprising of Insp. [ENTITY], Insp. [ENTITY], SI [ENTITY] etc. reached PP Prahalad Pur, they informed accused SI [ENTITY]/Incharge [ENTITY] of the incident and asked him to accompany them to AC Branch. At this, accused [ENTITY] started abusing and entered into a scuffle with the police party of ACB and inflicted an injury to himself with a poker. When ACB officials tried to restrain him, he gave a kick blow to Insp. [ENTITY] and pushed him due to which spectacles of Insp. [ENTITY] got broken. He also assaulted SI [ENTITY] with the poker due to which he received injuries in his left hand. During further investigation, Insp. [ENTITY] arrested accused [ENTITY]/SI and accused [ENTITY]/const., obtained their voice samples and completed other formalities. The exhibits, voice samples of accused persons and recordings were sent to FSL Rohini and results were obtained. Prosecution Sanctions of accused persons were obtained from competent authority. After completion of investigation, challan U/[SECTION] [ACT] r/w [SECTION] [ACT] was filed in the court. Thereafter, cognizance was taken and accused persons were summoned to face trial. 6. After hearing the accused persons on charge, the Learned Predecessor of this Court framed charge for offences punishable u/[SECTION] [ACT] r/w [SECTION] [ACT] and [SECTION] [ACT] against the accused [ENTITY] (private person); charge u/[SECTION] & [SECTION] of the [ACT] r/[SECTION] [ACT] and Secs. FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 6 of 33 -7- 120B/332/[SECTION]/1[SECTION]6 [ACT] against the accused [ENTITY]; charge u/[SECTION] & [SECTION] of the [ACT] r/[SECTION] [ACT] and [SECTION] [ACT] against accused [ENTITY]. All the accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE 7. To prove its case, prosecution has examined as many as 40 witnesses. Material witnesses:- PW24/[ENTITY], the Complainant in the present case. PW30/[ENTITY], the Panch Witness to the raid proceedings. Medical witnesses:- PW14/Dr. [ENTITY], Sr. Orthopaedic Surgeon, Aruna Asaf Ali Hospital who proved the MLC (Ex. PW14/A) of Insp. [ENTITY] and opined the nature of injuries to be simple. PW19/Dr. [ENTITY], CMO Aruna Asaf Ali Hospital who medically examined accused [ENTITY], SI [ENTITY] and Insp. [ENTITY] and prepared their MLCs as Ex. PW19/A, Ex. P19/B and Ex. PW14/A respectively. PW26/Dr. [ENTITY], Forensic Medicines who gave his opinion Ex. PW26/A on the MLC Ex. PW19/A of accused [ENTITY]. Formal witnesses:- PW1/Const. [ENTITY] who was the member of the raiding team and had got the FIR (Ex. PW[SECTION]/B) registered. PW2/[ENTITY], UDC, Directorate of Education/GNCT in whose presence DD register of [ENTITY]/PS Sangam Vihar was seized. PW3/[ENTITY], LDC, Directorate of Training & Technical Eduction in whose presence the specimen voice sample of FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 7 of 33 -[SECTION]- accused [ENTITY] was taken on two small cassettes (A and A1) in FSL Rohini. PW4/[ENTITY], Inspector (Food & Supply Deptt.)/ GNCT in whose presence the specimen voice sample of accused [ENTITY] was taken on one cassette (Ex.P3). PW5/[ENTITY], STD Booth Owner who deposed that mobile phone No. 9953052277 (alleged to have been used by accused [ENTITY]) was not subscribed by him. PW6/HC [ENTITY] who took exhibits to FSL Rohini. PW7/HC [ENTITY] who witnessed the arrest and personal search of accused [ENTITY]. PW[SECTION]/SI [ENTITY], Duty Officer at PS ACB, who proved the FIR (Ex. PW[SECTION]/B). PW9/SI [ENTITY] who proved the biodatas of accused [ENTITY] and [ENTITY] as Ex. PW9/A and B. PW10/Const. [ENTITY], Duty Constable at Aruna Asaf Ali Hospital who handed over a parcel sealed with seal of CMO/AAA to the IO vide memo Ex. PW10/A. PW11/Const. [ENTITY] who collected the exhibits from FSL Rohini. PW12/[ENTITY], Craft Instructor/ITI who proved the consent memo (Ex. PW12/A) of accused [ENTITY] agreeing to give his voice sample. PW[SECTION]/[ENTITY] (Retd. Machine Operator) in whose presence the voice sample of accused [ENTITY] was taken on a cassette (Ex. P5) in FSL Rohini. PW15/Dr. [ENTITY], Asstt. Director (Physics), FSL Rohini proved his report as Ex. PW15/A regarding the voice samples of accused persons. PW16/[ENTITY] who delivered DD register from [ENTITY], PS Sangam Vihar to PS ACB. FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. [SECTION] of 33 -9- PW17/[ENTITY], Superintendent/District Magistrate(Central)/ Panch Witness who proved the observation memo as Ex. PW17/A whereby ASI [ENTITY] PW1[SECTION] had identified accused [ENTITY] in the CD played on the Laptop of Insp. [ENTITY]/IO. PW1[SECTION]/SI [ENTITY] alleged witness to the CDs (audio & video) played in PS ACB in the presence of PW17/[ENTITY] who turned hostile. PW20/Const. [ENTITY] who collected the exhibits from Malkhana Civil Lines and deposited the same in FSL Rohini. PW21/HC [ENTITY], MHCM/PS Civil Lines who deposed regarding the deposit of exhibits on various dates. PW22/[ENTITY], Insp. Food & Supply Deptt. the Panch Witness who proved the observation memo as Ex. PW22/A whereby SHO/PS Sangam Vihar identified the picture and voice of accused [ENTITY] and accused [ENTITY]. PW23/DCP [ENTITY] accorded sanction u/[SECTION] of [ACT] (Ex.PW23/A & B) in respect of accused [ENTITY] and [ENTITY]. PW25/HC [ENTITY], MHCM Civil Lines who deposited four sealed bottles, GC notes, one sample seal, one cloth pullanda containing specs and one sealed pullanda containing one Poker etc. in the malkhana on 17.12.200[SECTION] and made entries in register No.19. PW2[SECTION]/[ENTITY], Alternate Nodel Officer/ [ENTITY] who proved CAF of Mobile Nos. 9953052277 and 9[SECTION]110[SECTION]3510 and CDR of Mobile No. 9953052277. PW29/[ENTITY] who was posted at [ENTITY] during relevant time. PW32/[ENTITY], Nodal Officer/Airtel who proved CAF and CDR of Mobile Nos. 9910703696 & 9[SECTION]7[SECTION]90709 in respect of accused [ENTITY]. PW33/Const. [ENTITY] who was posted as DD writer at PP Pul FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 9 of 33 -10- Prahalad Pur/PS Sangam Vihar on 17.12.200[SECTION]. PW35/[ENTITY], DGM Idea Cellular who proved photocopy of CAF of Mobile No. 9[SECTION]9[SECTION]6[SECTION]676. PW36/[ENTITY]/DIG (the then DCP/PS ACB) who proved complaint u/[SECTION] [ACT] dated 29.0[SECTION].[SECTION] (Ex. PW36/A) against accused [ENTITY]. PW37/Insp. [ENTITY], the then SHO/PS Sangam Vihar who identified the voice and picture of const. [ENTITY] and SI [ENTITY] in the CDs. Witnesses of investigation:- PW27/ Insp. [ENTITY] who was one of the members of the raiding party and the official of ACB who had handed over the recording device to PW24/Complainant and prepared the transcripts Ex. PW27/A. PW31/SI [ENTITY] (Retd) who was one of the members of the second raiding team which visited [ENTITY] on 17.12.200[SECTION]. PW34/ACP [ENTITY] (Retd.) the then Inspector/PS ACB was the First Investigating Officer (IO). PW3[SECTION]/Insp. [ENTITY]/the Second IO. PW39/ACP [ENTITY], the then Insp./PS ACB who was a member of the second raiding team which visited [ENTITY] on 17.12.200[SECTION]. PW40/ACP [ENTITY], the then Insp./PS ACB/the third IO. [SECTION]. After completion of prosecution evidence, statements of accused [ENTITY], [ENTITY] and [ENTITY] were recorded u/[SECTION] [ACT] wherein they denied the story of the prosecution outrightly. Accused [ENTITY] denied having known the complainant and coaccused [ENTITY]. He stated that he did not demand any money from the complainant personally FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 10 of 33 -11- or through anybody. He denied having met the complainant or coaccused [ENTITY] ever. He stated that on 17.12.2000, he was posted as Incharge PP[ENTITY] and on that day at about 3:00 pm, when he was present in his office with Const. [ENTITY]. 34 persons in civil dress came to his room and introduced themselves as officials from Vigilance, PHQ and told the purpose of their visit as enquiry about illegal construction and role of police officials therein. They asked him to call the beat staff and PP staff. He instructed [ENTITY] Const. [ENTITY] to call all the officials and after arrival of all the officials, those Vigilance officials asked for Const. [ENTITY] as he was not present there. On enquiry, it was revealed that Const. [ENTITY] was absent and his mobile phone was not reachable. He accordingly marked Const. [ENTITY] as absent. Soon thereafter, those Vigilance officials forcibly tried to take him away from there. He protested and asked them whether any case was registered against him. In reply, they told him that he was involved in a corruption case. He requested those officials to serve him a notice u/[SECTION] [ACT] but they started dragging him forcibly and assaulted him. He called SHO, PS Sangam Vihar and area ACP. He lodged DD No.14 in DD register of PP[ENTITY] and thereafter, he was taken by them. He was taken to the hospital and from there he was lodged in the lockup at PS Civil Lines at about 10:00/10:30 pm, where Insp. [ENTITY] was already present. 9. He further stated that he had nothing to do with mobile No. 9953052277 and this number was never used by him. He had never obstructed or assaulted any public servant while discharging their official duties. Rather, he was obstructed by Insp. [ENTITY], Insp. [ENTITY], SI [ENTITY] and others while he was discharging his official duties. He had never FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 11 of 33 -12- caused any injuries to himself and injuries on his person were caused by ACB officials. The poker had been planted upon him in this case. Accused [ENTITY] and [ENTITY] opted to lead evidence in their defence. However, accused [ENTITY] did not lead any evidence in his defence. DEFENCE EVIDENCE 10. In their defence accused [ENTITY] and [ENTITY] examined ASI [ENTITY] as DW1 who proved the fact finding report of departmental enquiry against accused [ENTITY] and [ENTITY] as Ex. DW1/B, wherein both the accused were exonerated. SI [ENTITY] as DW2 who proved the copies of the RTI applications filed by accused [ENTITY] as Ex. DW2/A to DW2/C and replies thereof as Ex. DW2/D to DW2/F. They also examined ASI [ENTITY] as DW3 who proved the information (Ex. DW3/B) supplied on the basis of application (Ex. DW3/A) moved by accused [ENTITY]. APPRECIATION OF EVIDENCE 11. The instant case involves two separate incidents. First, regarding the demand and acceptance of illegal gratification by accused [ENTITY], [ENTITY] and [ENTITY] and second, regarding the assault on SI [ENTITY] and Insp. [ENTITY] by accused SI [ENTITY] in [ENTITY] of PS Sangam Vihar. Hence, for the sake of convenience, I shall proceed to evaluate the evidence of both the incidents separately. FIRST INCIDENT Initial Demand of Rs.75,000/, acceptance of Rs.60,000/ by all FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 12 of 33 -[SECTION]- three accused persons on 16.12.200[SECTION] and acceptance of Rs. 15,000/ by accused [ENTITY] on behalf of accused [ENTITY] on 17.12.200[SECTION] 12. To bring home the guilt of the accused persons in respect of the offences u/[SECTION], [SECTION] and [SECTION]/[SECTION] [ACT] and [SECTION] [ACT], the prosecution is required to prove the following: (i) Initial demand of Rs.75,000/ by accused [ENTITY] on behalf of accused [ENTITY] and accused [ENTITY]. (ii) Acceptance of bribe amount of Rs.60,000/ by accused [ENTITY], accused [ENTITY] and accused [ENTITY]. (iii) Acceptance and Recovery of tainted GC notes amounting to Rs.15,000/ from the possession of accused [ENTITY] on 17.12.200[SECTION]. [SECTION]. To prove the aforesaid, the prosecution examined the complainant [ENTITY] (PW24) and Panch Witness [ENTITY] (PW30). Both the witnesses turned hostile and did not support the case of the prosecution in any manner. PW24/ complainant [ENTITY] rather testified that it was police officials of PS Badarpur namely [ENTITY] and [ENTITY] who used to harass him and had demanded Rs.1 lakh from him so as to not to implicate him in case of dealing in stolen goods. He did not even once name the accused [ENTITY] and accused [ENTITY] as the persons who used to harass him and demand illegal gratification from him. He testified that due to the harassment caused to him by [ENTITY] and [ENTITY], he had approached accused [ENTITY] who had previously helped him in a similar matter. On his advise, he along with accused [ENTITY] had gone to PS Anti Corruption FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. [SECTION] of 33 -14- Branch on 16.12.200[SECTION] where he had met Insp. [ENTITY] (PW34) and had given a written complaint Ex. PW24/A which was written by accused [ENTITY] but signed by him. Insp. [ENTITY] (PW34) asked him to come on 17.12.200[SECTION] at 10:00 am. Next day when he reached PS ACB, he was asked by Insp. [ENTITY] (PW34) to hand over Rs.15,000/ to be further handed over to [ENTITY] and [ENTITY] towards bribe. Since he was not carrying sufficient money, he handed over 10 currency notes in the denomination of Rs.500/ amounting to Rs.5,000/ to Raiding Officer/Insp. [ENTITY] (PW34). Thereafter, Insp. [ENTITY] applied some powder on the currency notes and got them touched with his hand, whereafter, his hands were washed in colourless water type solution which turned pink. The pink water was transferred to 23 bottles. He further testified that at about 1:30 pm, he along with 45 other persons was taken towards his godown. He was made to sit in the vehicle at a distance of about 200 meter from his godown near Bharat Petrol pump whereas the raiding team left towards Prahalad Pur. They returned about half an hour. On the way back to PS ACB, they threatened accused [ENTITY] that he will face consequences for getting a false raid conducted. They returned to PS ACB at about 4:15 pm. At about 7:00 pm, before leaving police station, he was asked to sign [SECTION]10 blank sheets. Accused [ENTITY] was detained at PS ACB. The amount of Rs.5,000/ which was handed over by him was returned to him. 14. Even in his crossexamination by learned Addl. PP for the [ENTITY], nothing favourable could be extracted from PW24/Complainant. He denied having been handed over any audiovideo recorder by SI [ENTITY] (PW27) on 16.12.200[SECTION] or that he recorded any video or audio of the transaction of handing over Rs.60,000/ to FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 14 of 33 -15- the accused persons. He also refuted having read the contents of the complaint Ex. PW24/A given by him on 17.12.200[SECTION] to Insp. [ENTITY] (PW34). He also categorically denied having participated in any preraid, raid or postraid proceedings. In the nutshell, he rubbished the case of the prosecution in its entirety. 15. Similarly, PW30/Panch Witness [ENTITY], although admitted to be on Panch Witness duty at PS ACB on 17.12.200[SECTION] and having witnessed the demonstration of the use of phenolphthalein powder, refuted the entire version of prosecution regarding the complicity of accused [ENTITY] having been caught red handed by the raiding team in his presence. Rather, he failed to identify accused [ENTITY] and stated that he was told that some officials of PS Badarpur are expected to demand bribe from the complainant. 16. In his crossexamination by the learned Addl.PP for the [ENTITY], Panch Witness [ENTITY] (PW30) categorically stated that he was coerced to sign documents (complaint Ex. PW24/A, preraid report Ex. PW24/C, seizure memo of GC notes Ex. PW24/E, seizure memo of hand wash Ex. PW24/F, postraid proceedings Ex. PW24/G, arrest memo Ex. PW24/H and personal search memo Ex. PW24/J of accused [ENTITY], arrest memo and personal search memo of accused [ENTITY] Ex. PW24/I and Ex. PW24/K respectively, seizure memo Ex. PW30/PB of broken spectacles and seizure memo Ex PW30/PC of Poker) and he had not gone through the contents thereof as he had been instructed by his superior to cooperate with the officials of PS ACB. Throughout his crossexamination, he kept on shifting stands by admitting only those part of the incident which did not implicate accused [ENTITY]. He even denied witnessing the FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 15 of 33 -16- alleged demand and acceptance of Rs.15,000/ by accused [ENTITY] on behalf of accused [ENTITY] and rather stated that he and complainant remained seated in the vehicle while the members of the raiding team had left for the godown of the complainant and returned after 25 minutes with accused [ENTITY]. 17. It was very vehemently argued by learned Addl.PP for the [ENTITY] that despite the fact the star witnesses i.e. complainant [ENTITY] (PW24) and Panch Witness [ENTITY] (PW30) did not support the case of the prosecution and turned hostile, the acceptance of illegal gratification by accused [ENTITY] on behalf of accused [ENTITY] has been successfully proved. To support his contentions, learned Addl.PP for the [ENTITY] very heavily relied upon the deposition of Insp. [ENTITY] (PW34) who was the member of raiding party and had apprehended accused [ENTITY] with the phenolphthalein powder treated GC notes amounting to Rs.15,000/. It was also argued by him that since accused [ENTITY] was caught red handed with the illegal gratification, presumption u/[SECTION] of the [ACT] will apply. There is no merit in this argument of learned Addl. PP for the [ENTITY] as the prosecution to bring home the charges u/[SECTION] of [ACT] was bound to prove not only alleged recovery/acceptance but also the demand of illegal gratification. In the case of [PRECEDENT]. in [CASE NUMBER] decided on 14.09.2015, it was held as under: "In [ENTITY] of Kerala and another vs. C.P. Rao, this court, reiterating its earlier dictum, visavis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 16 of 33 -17- knowing it to be bribe, conviction cannot be sustained. In a recent enunciation by this Court to discern the imperative prerequisites of [SECTION] and [SECTION] of the Act, it has been underlined in [ENTITY] in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under [SECTION] of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under [SECTION] and [SECTION] of the act. Qua [SECTION] of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under [SECTION] and not to those under [SECTION] of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under [SECTION] of the Act would also not arise. The proof of demand of illegal gratification, thus, is the gravamen of the offence under [SECTION] of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under [SECTION] or [SECTION] of the Act would not entail his conviction thereunder." 1[SECTION]. Hence, even if any reliance is placed on the testimony of raiding officer Insp. [ENTITY] (PW34), it is of no consequence as he was only a witness to the recovery of Rs.15,000/ and not to the demand alleged to have been made by accused [ENTITY] and acceptance of bribe by him on behalf of accused [ENTITY]. FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 17 of 33 -1[SECTION]- Evidence qua audio-video recording 19. It was further argued by learned Addl. PP for the [ENTITY] that assuming though not admitting that the testimony of PW34/Raid Officer Insp. [ENTITY] is of no consequence, the prosecution was successful in bringing home the guilt of the accused persons regarding offences u/[SECTION] [ACT] read with [SECTION] [ACT] and [SECTION] [ACT] as the complainant had recorded the audio video of the transaction of Rs.60,000/ involving the accused persons and the recording in the shape of CDs (CDI and CDII) have been proved. It was also contended by him that since the voices in the CDs have been matched with the voice samples of the complainant and accused persons as per the report (Ex. PW15/A) of PW15/Dr. [ENTITY], Asstt.Director(Physics), FSL Rohini, the prosecution has proved its case beyond a shadow of doubt. In contrast, it was urged by learned counsels for the accused persons that the prosecution miserably failed to prove the recordings and the transcripts in accordance with law and thus, the audiovideo recording was inadmissible in law. 20. Admittedly, the original recording device and the original recording were not produced before the Court. As per the case of the prosecution, the original recording devise was handed over to the complainant (PW24) on 16.12.200[SECTION] by SI [ENTITY] (PW27) to record the conversation of the transaction of Rs. 60,000/ between the complainant and the accused persons which was returned to SI [ENTITY] (PW27) after recording on 16.12.200[SECTION] itself. The recorded clipping was played in the official Laptop at PS ACB while the data recorded in the recording device was copied in the Laptop and then copied in two separate CDs (CDI and CDII). It was also the case of the prosecution that the FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 1[SECTION] of 33 -19- transcript (Ex. PW27/A) of the relevant portion was prepared by SI [ENTITY] (PW27). 21. The law regarding the admissibility of electronic evidence has been laid down in the case of [PRECEDENT] wherein it has been held by the Hon'ble Supreme Court that to prove electronic evidence either the original recordings have to be produced and in case original recordings are not available then secondary evidence should be supported by a certificate u/[SECTION] of [ACT]. The observations of the Hon'ble Supreme Court in [PRECEDENT] (supra) were further clarified by the judgment of the Hon'ble Delhi High Court in Kundan Singh Vs. [ENTITY] rendered in [CASE NUMBER] decided on 24.11.2015 as follows: "46. Controversy has arisen whether a certificate under [SECTION] to [SECTION] must be issued simultaneously with the production of the computer output or a certificate under [SECTION] can be issued and tendered when the computer output itself is tendered to be admitted as evidence in the court or as in the present case by the official when he was recalled to give evidence. In [PRECEDENT], the Supreme Court has held as under: "15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice." (emphasis supplied) The expression used in the said paragraph is when the electronic record is "produced in evidence". Earlier FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 19 of 33 -20- portion of the same sentence emphasises the certificate must accompany the electronic record when the same is "produced in evidence". To us, the aforesaid paragraph doe not postulate or propound a ratio that the computer output when reproduced as a paper print out or on optical or magnetic media must be simultaneously certified by an authorised person under [SECTION] to [SECTION] This is not so stated in [SECTION] or [SECTION] thereof.
50. [PRECEDENT] (supra) partly overruled the earlier decision of the Supreme Court on the procedure to prove electronic record(s) in [PRECEDENT] (supra), holding that [SECTION] is a specific provision relating to the admissibility of electronic record(s) and, therefore, production of a certificate under [SECTION] is mandatory. [PRECEDENT] (supra) does not state or hold that the said certificate cannot be produced in exercise of powers of the trial court under [SECTION] [ACT] or, at the appellate stage under [SECTION] [ACT] is a procedural law and in view of the pronouncement in [PRECEDENT] (supra) partly overruling [PRECEDENT] (supra), the prosecution may be entitled to invoke the aforementioned provisions, when justified and required. Of course, it is open to the court/presiding officer at that time to ascertain and verify whether the responsible officer could issue the said certificate and meet the requirements of [SECTION]"
22. I am, therefore, of the considered view that to prove secondary evidence regarding an electronic record, the certificate u/[SECTION] of the [ACT] must accompany the electronic record when the same is produced in evidence. It is pertinent to mention here that neither the certificate u/[SECTION] of the [ACT] was filed at the time of filing of chargesheet/CDs nor when the CDs were produced in evidence which is a mandatory requirement to prove the secondary evidence. Hence, as rightly argued by learned counsels for the accused, the prosecution failed to prove the alleged recorded conversations regarding the alleged transaction of demand and acceptance of Rs.60,000/. Since the prosecution failed to prove the CDs, consequently, I am of the opinion that no importance can also be attached to the FSL report FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 20 of 33 (Ex. PW15/A) which opined that the voices in the CDs matched with that of the accused persons and to the transcription of the conversation (Ex. PW27/A) which was allegedly prepared by SI [ENTITY] (PW27).
Admissibility of FSL report
23. It was also strenuously argued by learned Counsels for the accused persons that otherwise also, the FSL report (Ex. PW15/A) is inadmissible in evidence for want of notification u/[SECTION] of [ACT]. To support their arguments, they cited [SECTION] of [ACT], [SECTION] and [SECTION] of [ACT] coupled with [SECTION] of [ACT]. The same are reproduced here as under: "[SECTION] of [ACT] "Electronic Record" - The words "Electronic Record"
shall have the meaning assigned to them in clause (t) of subsection (1) of Section 2 of the [ACT]".
[SECTION] of [ACT] "Electronic Record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche."
[SECTION] of [ACT] "Opinion of Examiner of Electronic Evidence - When in a proceeding, the Court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in [SECTION] of the [ACT] is a relevant fact.
Explanation - For the purpose of this section, an Examiner of Electronic Evidence shall be an expert;
[SECTION] of [ACT] "Central Government to notify Examiner of Electronic Evidence - The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the official Gazette, any FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 21 of 33 Department, body or agency of the Central Government or a [ENTITY] Government as an Examiner of Electronic Evidence.
Explanation - For the purposes of this section, "electronic form evidence" means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines."
24. The above provisions on their very bare reading reflect that only if the Central Government notifies any department, body or agency of the Central Government or [ENTITY] Government as an examiner of electronic evidence, then only that agency would be competent to provide expert opinion on electronic form evidence. In the instant case, the CDs containing the audiovideo recordings, the cassettes containing voice samples of accused persons are all electronic record and the opinion of the examiner of such electronic record is a relevant fact. In this regard the prosecution had examined PW15 Dr. [ENTITY], Asst. Director (Physics) FSL, Rohini who had proved his opinion Ex.PW15/A regarding the voices in the CD having matched with the voice samples of the accused persons. It is very significant to mention here that in his cross examination, he very categorically admitted that "FSL Rohini is not notified U/[SECTION] of [ACT] and FSL Rohini has initiated the process for notification U/[SECTION] of the [ACT]"
meaning thereby that Central Government has not notified FSL Rohini as an examiner of Electronic Evidence. Since the Central Government has not authorised FSL Rohini to be a competent examiner of Electronic Evidence under the provision of [SECTION] of the [ACT], therefore in my opinion, no importance can be attached to the opinion Ex.PW15/A given by PW15 Dr. [ENTITY] for this reason also.
FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 22 of 33
25. Moreover, it is the admitted case of the prosecution that the CD produced in the court, alleged to have been prepared by PW27/Insp. [ENTITY] from the original recording contained a folder namely 16th December. The said folder contained two separate files; one audio file namely 1216M005.WAV and one video file namely vid0000.3gp. Since the original recording device was not sent to FSL for an expert opinion to rule out the tampering, it was extremely vital that opinion ought to have been sought from the FSL regarding the correlation between audio recording and the lip movement in the video recording. This fact was also admitted by IO/Insp. [ENTITY] (PW3[SECTION]) in his cross examination wherein he admitted that he did not seek any opinion from FSL in this regard. In addition to the aforesaid, PW15/Dr. [ENTITY] also very candidly admitted that he had examined the file from the angle of audio analysis only. It is also relevant to note that no voice sample of complainant was obtained to match with his voice alleged to be that of the complainant in the CDs. Furthermore, no register/ document was produced in the Court to show that any recording device was issued to Insp. [ENTITY] (PW27) to enable the complainant [ENTITY] (PW24) to make the audiovideo recording of the alleged transaction of Rs.60,000/. It was very categorically admitted by PW39/Insp. [ENTITY] that during the relevant time it was SI [ENTITY] who used to hand over the recording devices and that he had not recorded the statement of SI [ENTITY] in this regard. PW39 also showed his ignorance regarding the issue, if any record qua handing over and taking over of recording devices was being maintained in any form. I am therefore of the view that not only the electronic evidence produced by the prosecution cannot be read in evidence but even the authenticity of the alleged recording is doubtful.
FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 23 of 33 Sanction
26. During the course of the arguments, it was also pointed out by learned counsel for accused [ENTITY] and [ENTITY] that the Sanction (Ex. PW23/A) accorded by Sanctioning Authority DCP [ENTITY] (PW23) was defective as the same was accorded without application of mind in a mechanical manner. To strengthen his arguments, he pointed out certain portions in Ex. PW23/A (Sanction order) which were verbatim reproduction of facts mentioned in Ex. PW23/[CASE NUMBER] which was a letter addressed to DCP [ENTITY] (PW23) from [ENTITY], Addl. Commissioner of Police, Anti Corruption Branch. It was also argued that complete documents were not sent to sanctioning authority and the same is evident from the Sanction Order (Ex. PW23/A) which mentions that all statements u/[SECTION] [ACT] were not placed before PW23 but only the statements of police officials who were the part of second team and had gone to apprehend accused [ENTITY] and [ENTITY] from PP[ENTITY]/PS Sangam Vihar were placed before him. It was also contended had the sanctioning authority/PW23 gone through the statement of SI [ENTITY], he would have realised that the second spot in the statement of SI [ENTITY] referred to Anti Corruption Branch, whereas as per the IO, the second spot was PP[ENTITY]. For this reason itself, PW23 would not have accorded sanction. There is no teeth in the argument of learned counsel for accused [ENTITY] and accused [ENTITY] that sanction order is invalid as the same has been passed without application of mind. The sanction order (Ex. PW23/A) reveals that complete documents were sent to the sanctioning authority/PW23. The sanction order very categorically mentions that "whereas a report has been received from Sh.[ENTITY], Addl. Commissioner of Police, Anti Corruption FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 24 of 33 Branch/GNCT of Delhi included its enclosures (35 Pps plus one CD) with statements of Insp. [ENTITY], Insp. [ENTITY], SI [ENTITY] (all AC Branch), Const. [ENTITY], Const. [ENTITY] (both PS Sangam Vihar), [ENTITY] ". The report of Sh. [ENTITY], Addl. Commissioner of Police, Anti Corruption Branch (Ex. PW23/[CASE NUMBER]) reveals that the copies of all the relevant documents were sent with the report for reference and the copies of the relevant documents included copies of the statements recorded u/[SECTION] [ACT] in FIR No.41/0[SECTION] dated 17.12.200[SECTION]. Further, the crossexamination of PW23/DCP [ENTITY] reveals that no suggestion was put to him that he had not received all the statements recorded u/[SECTION] [ACT] So far as reproduction of facts mentioned in Ex. PW23/[CASE NUMBER] and Ex. PW23/A is concerned, the same would not tantamount to nonapplication of mind. With respect to the statement of SI [ENTITY] (Ex. PW31/PA) recorded u/[SECTION] [ACT], that the 2nd spot was Anti Corruption Branch, it is of no consequence. PW23 DCP [ENTITY] was required to accord sanction to prosecute accused [ENTITY] and Ct[ENTITY] only qua the provisions of [ACT] and not other provisions under the [ACT] and the material placed before him prima facie disclosed commission of offences under the [ACT].
27. Thus, in the light of my aforesaid discussion, I am of the opinion that the prosecution miserably failed to prove charge for offences punishable u/[SECTION] [ACT] r/w [SECTION] [ACT] and [SECTION] [ACT] against accused [ENTITY] (private person); charge u/[SECTION] & [SECTION] [ACT] r/[SECTION] [ACT] against accused [ENTITY] and charge u/[SECTION] & [SECTION] [ACT] r/[SECTION] [ACT] and [SECTION] [ACT] against accused [ENTITY].
FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 25 of 33 SECOND INCIDENT Incident of accused [ENTITY] resisting and assaulting the second team at PP[ENTITY] thereby committing offences punishable u/[SECTION] [ACT] Sanction
2[SECTION]. Qua the offence u/[SECTION] [ACT] alleged to have been committed by accused [ENTITY], it was argued by learned counsel for accused [ENTITY] that the complaint u/[SECTION] [ACT] (Ex. PW36/A) filed by Sh. [ENTITY] (PW36) was defective and without any application of mind. Even though the alleged offence was allegedly committed by the accused [ENTITY] only, the fact that the complaint (Ex. PW36/A) was filed against all the three accused persons shows non application of mind. Even otherwise, PW36/[ENTITY] was not competent to file the complaint as he was not the immediate superior of Insp. [ENTITY]. Because of the aforesaid reasons, the complaint (Ex. PW36/A) is not admissible in evidence. There is no merit in this argument. Ex. PW36/[CASE NUMBER] which is a letter addressed to the Dy.Commissioner of Police, Anti Corruption Branch, GNCT Delhi by Insp. [ENTITY], AC Branch regarding complaint u/[SECTION] [ACT] in case FIR No. 41/0[SECTION], U/[SECTION] [ACT] read with [SECTION] [ACT], PS AC Branch, GNCT of Delhi reflects that all the relevant documents along with their copies and list of witnesses were annexed therewith and the same was sent to PW36/[ENTITY], Dy. Commissioner of Police, Anti Corruption Branch to make a complaint against accused [ENTITY]. DCP/[ENTITY] (PW36) was only to make a complaint against accused [ENTITY] for the offence committed u/[SECTION] [ACT] and therefore, even if he reproduced the contents of the forwarding letter (Ex. PW36/[CASE NUMBER]) in his complaint (Ex. PW36/A) FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 26 of 33 after applying his mind regarding the offence u/[SECTION] [ACT] committed by accused [ENTITY], it does not, in my opinion, indicate nonapplication of mind. The contention of the learned counsel for the accused [ENTITY] that PW36/[ENTITY] was incompetent to file the complaint as he was not the immediate superior of Insp. [ENTITY] also is without force as [SECTION] [ACT] enunciates that "No court shall take cognizance of any offence punishable under [SECTION] (both inclusive) of the [ACT] except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. [SECTION] no where postulates that the complaint if not filed by the concerned public servant, then it can only be filed by his immediate superior. As per [SECTION], the concerned public servant should be administratively subordinate to the complainant. Hence, the complaint filed by DCP/[ENTITY] (PW36) squarely meets the requirement of [SECTION] [ACT] So far as the argument of learned counsel for the accused that since the complaint was not directly filed before this court as stipulated under [SECTION] [ACT] the complaint (EX. PW36/A) cannot be considered as valid is concerned, the same deserves to be outrightly rejected. The bare perusal of the complaint ( Ex. PW36/A) shows that the same is addressed to the learned Predecessor of this Court and is only routed through the IO. It is not the case that no complaint addressed to the court was filed.
29. It was also argued by learned counsel for accused [ENTITY] that since accused [ENTITY] at the relevant time was discharging official duty, therefore, by virtue of [SECTION] of [ACT], sanction was to be obtained. Also that, in the absence of the mandatory requirement of sanction u/[SECTION] [ACT], charge u/s FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 27 of 33 1[SECTION]6 [ACT] against accused [ENTITY] must fail. This argument also deserves to be rejected as use of expression "Official Duty"
implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. In the case of Ramkubhai Valkubhai Dhakhda Vs. [ENTITY] of Gujarat reported as (2006) 1 GLR 6[SECTION], the complainant who was the Chief Officer of Rajula Municipality had been directed by the accused who was the President of Rajula Municipality to sign a cheque as Chief Officer of Municipality. When complainant brought to the notice of the accused that being a Chief Officer he would sign the second cheque only when the first cheque is presented before the bank, the accused assaulted the complainant with a knife and caused hurt as well as administered threat to kill. In the judgment it was observed as under: "Before [SECTION] can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of [SECTION] does not get immediately attracted on institution of the complaint FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 2[SECTION] of 33 case."
In the aforesaid case (supra), it was thus held that, "Examining the allegations made as it is, it is apparently clear that the act alleged to assault the complainant with knife to cause hurt, abusing him and to threaten him for killing by no stretch of reasoning could be said to be an act falling in the range of the official duty of the President of Municipality."
30. Similarly, in the instant case, assuming that accused [ENTITY] was doing his official work when the second raiding team came to make enquiries and to take him to PS ACB, assaulting the members of the second raiding team cannot by any stretch of imagination, come within the definition of "acting in discharge of his official duty". Therefore, I am of the view that no sanction as mandated u/[SECTION] [ACT] was required in the instant case and the complaint (Ex. PW36/A) thus filed against the accused [ENTITY] was sufficient to put the criminal law in motion for trial of this accused for the offences u/[SECTION] [ACT].
APPRECIATION OF EVIDENCE
31. Adverting to the evidence produced by the prosecution to prove that accused [ENTITY] had resisted his apprehension by the second team comprising of Insp. [ENTITY], Insp. [ENTITY] (PW39) and SI [ENTITY] (PW31) and had assaulted Insp. [ENTITY] and SI [ENTITY] (PW31), the prosecution examined the victim SI [ENTITY] (PW31) and ACP [ENTITY] (PW39). PW31/SI [ENTITY] testified that on 17.12.200[SECTION], he was posted in PS ACB and at about 1:30 pm, he along with Insp. [ENTITY] (PW39), Insp. [ENTITY] (deceased) and Const. [ENTITY] had left for raid from PS ACB. On their way to [ENTITY], PS Sangam Vihar, they were informed by Insp. [ENTITY] (deceased) regarding the success of the raid FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 29 of 33 conducted by Insp. [ENTITY] (PW34). They arrived at [ENTITY] at about 2:45 pm and came to know that accused [ENTITY] was in his office. They went inside, introduced themselves and asked accused [ENTITY] to accompany them to PS ACB in reference to to the raid conducted by Insp. [ENTITY] (PW34). However, accused [ENTITY] asked them to show the copy of the FIR and make an arrival entry in the DD register. When he was informed that he was to be taken only for enquiry, accused [ENTITY]/SI threatened that if he was taken forcibly, he will kill himself. Insp. [ENTITY] (deceased) held accused [ENTITY] by his hand and directed him outside the room. In the meantime, the accused picked up a poker from his table and tried to stab himself in the stomach. At this, he (SI [ENTITY]) immediately sprang towards the accused to hold the poker which caused a scratch in his left palm. The poker landed on the right thigh of the accused and during the scuffle, Insp. [ENTITY] (deceased) fell down and broke his spectacles. After this incident, SHO Sangam Vihar and ACP SubDivision arrived at [ENTITY]. Accused SI [ENTITY] wrote a DD entry in his own handwriting in the DD register. He handed over the poker to Insp. [ENTITY] (PW39). Accused [ENTITY] was brought to PS ACB and was handed over to Insp. [ENTITY] (PW3[SECTION])/IO of the case. In his crossexamination by learned Addl.PP for the [ENTITY], SI [ENTITY] (PW31) stated that he did not remember having informed the IO that accused [ENTITY] had threatened to kill himself or to kill the officials of PS ACB. He admitted that the accused [ENTITY] had stabbed himself voluntarily with a poker in his thigh. He categorically denied that the accused [ENTITY] had attacked the officials of PS ACB including him. He also refuted having stated to the IO that accused [ENTITY]/SI had physically assaulted during enquiry.
FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 30 of 33
32. The version of SI [ENTITY] (PW31) that accused [ENTITY] did not assault him and Insp. [ENTITY] was also supported by PW39/ACP [ENTITY]. He testified that when Insp. [ENTITY] and SI [ENTITY] tried to apprehend accused [ENTITY], a scuffle ensued between three of them. In the scuffle, accused stabbed himself on his thigh, Insp. [ENTITY] fell down on the ground due to which his spectacles broke and SI [ENTITY] (PW31) received poker injuries in the palm of one of his hands. The poker got bent in the scuffle. He took the poker from the hands of the accused and pacified him. In his crossexamination also by learned counsel for the accused [ENTITY], he admitted that no intentional injuries were caused by accused [ENTITY] to any member of the raiding team and that the injuries were sustained by the members of the raiding team in a scuffle when they tried to snatch the poker. The spectacles of Insp. [ENTITY] broke when he slipped in the scuffle.
33. From the testimonies of PW31/SI [ENTITY] and PW39/ACP [ENTITY], it is evident that neither of them supported the story of the prosecution that the accused [ENTITY] had assaulted SI [ENTITY] (PW31) and Insp. [ENTITY] (deceased). It is also pertinent to mention here that even though Insp. [ENTITY] could not be examined due to his death, the prosecution also failed to examine Const. [ENTITY] (part of the second team) who could have possibly shed light on this incident.
34. Thus, in my opinion, the prosecution has failed to prove the charges under [SECTION] and [SECTION] [ACT] against the accused [ENTITY] that he had assaulted Insp. [ENTITY] and SI [ENTITY] and had used criminal force against them while they FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 31 of 33 were discharging their public duties beyond reasonable doubt.
35. So far as the offence u/[SECTION] [ACT] is concerned, it is evident from the testimonies of SI [ENTITY] (PW31) and ACP [ENTITY] (PW39) that neither the copy of the FIR was shown nor they made any arrival entry in the DD register of [ENTITY], PS Sangam Vihar before taking any action. Rather, SI [ENTITY] (PW31) in his crossexamination testified that he did not remember having stated to the IO that accused [ENTITY] had threatened to kill himself or to kill officials of PS ACB. Both SI [ENTITY] (PW31) and ACP [ENTITY] (PW39) testified that before leaving [ENTITY], PS Sangam Vihar, accused SI [ENTITY] wrote a DD entry in his own handwriting in the DD register which was neither read nor seized by ACP [ENTITY]. Accused [ENTITY] too in his statement u/[SECTION] [ACT] had very specifically stated that when he requested the officials who had informed him that he was involved in a corruption case to serve him a notice u/[SECTION] [ACT] [ACT], they had started forcibly dragging him. He had then called SHO PS Sangam Vihar and area ACP and had lodged DD No.14 in DD register of [ENTITY]. The DD No.14 recorded in the roznamcha of [ENTITY], PS Sangam Vihar which was seized by PW3[SECTION]/Insp. [ENTITY] shows that accused [ENTITY] had soon after the second incident recorded DD No.14 at 3:50 pm wherein he had mentioned that he was being forcibly taken by the staff of Anti Corruption regarding some allegation of corruption and that when a crowd got collected, the crowd was also threatened and thereafter, he was assaulted by the staff of ACB. It is also pertinent to mention here that despite the allegations against accused [ENTITY] that he had caused obstruction and had assaulted SI [ENTITY] (PW31) and Insp.
FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 32 of 33 [ENTITY] (deceased) in [ENTITY], PS Sangam Vihar, no FIR was lodged against him in PS Sangam Vihar especially when it was the case of the prosecution that accused [ENTITY] had also called SHO PS Sangam Vihar to [ENTITY] at that time.
36. In view of the aforesaid, I am of the considered opinion that the prosecution also failed to prove the charge u/[SECTION] [ACT] against accused [ENTITY] beyond reasonable doubt.
CONCLUSION
37. Resultantly, accused [ENTITY] is acquitted for the offences punishable u/[SECTION] [ACT] r/w [SECTION] [ACT] and [SECTION] [ACT]. Accused [ENTITY] is acquitted for the offences punishable u/[SECTION] & [SECTION] of the [ACT] r/[SECTION] [ACT] and [SECTION] [ACT]. Accused [ENTITY] is acquitted for the offences punishable u/[SECTION] & [SECTION] of the [ACT] r/[SECTION] [ACT] and [SECTION] [ACT].
File be consigned to Record Room.
Announced and signed in the open Court on 25th May, 2016 ([ENTITY]) Special Judge([ACT])(Central)05, Tis Hazari Courts, Delhi FIR No. 41/200[SECTION], PS ACB in case [ENTITY] & Ors. Page No. 33 of 33