Crl.A.No.447/2001 Page 1 of 39 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.Appeal No.447/2001. Judgment delivered on 20th July, 2009. # Sh. Dashrath Singh Chauhan .... Petitioner Through : Mr. S. Khan and Mr. Shishir Mathur, Advocates. Versus C.B.I. .... Respondent Through : Mr. Ajay Pal, Advocate. CORAM: HON'BLE MR. JUSTICE G.S. SISTANI 1. Whether reporters of local papers may be allowed to see the Judgment ? YES 2. To be referred to the Reporter or not? YES 3. Whether the Judgment should be reported in the Digest? YES G.S. SISTANI, J. 1. The present appeal is directed against the judgment and order on conviction dated 31.05.2001 passed in C.C. No. 53/95 and R.C.No. 25(A)/ 95-DLI/ CBI/ ACB/ New Delhi, convicting the appellant to Rigorous Imprisonment (hereinafter referred to as, ―R.I.‖) for two years and a fine of Rs.40,000/- under Sections 7, 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. In default of the payment of fine, the appellant was to undergo a further simple imprisonment for a period of six months. 2. The facts of this case briefly stated are that as per the complainant/PW-1, in January, 1995, he was running the business of manufacturing Hosiery items under the name and style of M/s Garg Hosiery Works at premises No.A-309, Shastri Nagar, Delhi. Crl.A.No.447/2001 Page 2 of 39 In January, 1995, he applied for an electricity connection for the aforesaid factory in the DESU Office at Nangia Park. Inspector D.S. Chauhan (appellant herein), from DESU, visited the factory of Arun Kumar, PW-1, for inspection in February, 1995. The appellant asked the complainant/PW-1 to visit his office after ten days to find out the progress of his application. Ten days later, the complainant enquired from the appellant about the electricity connection. The appellant is stated to have demanded a bribe of Rs. 5,000/- which was negotiated by the complainant and it was agreed that Rs. 4,000/- would be paid. The appellant went to the office of the Central Bureau of Investigation (CBI) and registered his complaint regarding the demand of a bribe. Thereafter a trap was laid and as per schedule the complainant went to the office of the appellant. Inside the office premises, the appellant directed the complainant to deposit the money with one Rajinder. As soon as Rajinder accepted the money, a pre- arranged signal was sent and Rajinder was caught on the spot. However, the appellant managed to slip away who was then arrested on 24.04.1995. A case was registered and the accused persons were tried for the offence under section 120B IPC read with Sections 7, 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. Post trial, accused Rajinder was acquitted; however D.S. Chauhan (appellant herein) was found guilty of having demanded and accepted illegal gratification. Crl.A.No.447/2001 Page 3 of 39 3. Learned counsel for the appellant submits that the judgment and order of conviction is based on surmises and conjectures. It is submitted that there are material contradictions in the statements recorded of the complainant as well as other witnesses. Learned counsel submits that there is no evidence on record to show that the appellant was present at the office when the alleged incident took place and even otherwise, as per the case of the prosecution there was neither any demand made by the appellant nor any money was received by the appellant. Learned counsel for the appellant contends that the presence of the appellant is disputed and in fact PW-3 has also supported the appellant on this issue, besides the fact that DW-1 has also categorically stated that the appellant was not present at the spot. Counsel also contends that the learned Special Judge has mis-directed himself and no cogent reason has been brought on record as to why the evidence of DW-1 has not been relied upon. 4. It is contended that the learned Special Judge has passed the order of conviction only relying upon the sole testimony of PW-2 which alone cannot be the basis of conviction somuch so, that the learned Special Judge has not placed reliance on the evidence of the complainant as well as on the evidence of the I.O. It is further contended that in fact the Special Judge has categorically stated that no reliance can be placed on the evidence of the I.O. and it has been observed that he is a person of doubtful integrity. Crl.A.No.447/2001 Page 4 of 39 5. Learned counsel for the appellant has further relied upon the Attendance Register, which is Exhibit PW-3/A to show that the appellant was on leave on the fateful day and thus the entire story of the prosecution is false. Learned counsel has drawn my attention to the statement of the co-accused Rajinder Kumar recorded under Section 313 of the Cr.P.C. wherein he has supported the case of the appellant to the extent that the appellant was not present in the office on the date when the raid was conducted. It has been strongly urged before this Court that even if it is assumed that the appellant was present in the office, there is no evidence on record that any of the witnesses saw the appellant leaving the office premises when, the width of the corridor was not more than 3-4 feet and no one could have escaped from the corridor without the knowledge of the raiding party who had admittedly taken position in the vicinity. 6. Learned counsel for the appellant submits that in fact in the judgement itself, the Special Court has observed that the statement of the complainant is false in totality. It is submitted that the present appeal is liable to succeed. 7. Per contra, learned counsel for the CBI has strenuously urged before this Court that the prosecution has been able to prove its case beyond any shadow of doubt. Learned Counsel submits that merely because the case of the prosecution would not be proved against the co-accused, no benefit can be derived by the appellant herein who was, in fact, present in the office and at his instructions the money was handed over to the co-accused, Crl.A.No.447/2001 Page 5 of 39 Rajinder Kumar. It is submitted that the appellant had moved away from the scene of the crime on realizing that a raid was being conducted. Learned counsel further submits that the Attendance Register is an unreliable document in asmuchas, the employees were not marking their attendance daily in the said register. Learned counsel also submits that contradictory stands have been taken by the appellant. In the statement recorded under Section 313 of the Cr.P.C., the appellant has stated that he was on leave from 28.03.1995 and onwards, however, his leave of application shows that he had requested for leave from 29.03.1995 onwards. Counsel next submits that there is no reason as to why the evidence of PW-2 cannot alone be the sole ground for conviction against the appellant when PW-2 is an independent witness and has clearly identified the appellant. 8. The prosecution in this case had examined seven witnesses, where as one witness was examined by the defence. Statement of the appellant was also recorded under section 313 of Cr.P.C. It would be worthwhile to analyse the evidence of relevant witnesses. 9. PW-1, Arun Kumar (complainant), deposed that in the year 1995 he was running the business of manufacturing Hosiery items under the name and style of ‗M/s Garg Hosiery Works‘ at premises A-309, Shastri Nagar, Delhi. In January, 1995, he had applied for an electricity connection for the aforesaid factory in the DESU office at Nangia Park. Inspector D.S. Chauhan (appellant) from D.E.S.U., (PW-1 correctly identified the appellant Crl.A.No.447/2001 Page 6 of 39 present in the Court), visited his factory premises for inspection in February, 1995. No one else from D.E.S.U. had visited the factory premises on the said visit. As per PW-1, the appellant went away telling him to visit his office after ten days to find out about the progress of his application. This witness further deposed that ten days later, he had visited the office of D.S. Chauhan, appellant, at Shehzada Bagh, Daya Basti and enquired from the appellant about his electricity connection. On this the appellant, D.S. Chauhan said ―BEF KOOF PANE KI BAATEN NAHIN KAREEN? JO SAHI BAAT HAI ISE KAR‖. Thereafter, the appellant said ―AB BHI NAHIN SAMJHA MAIRA ISHARA‖. On this the complainant said ―BATA DO MUJH KO KIYA BAAT HAI. The appellant, D.S. Chauhan, said that he will take Rs.5,000/- for installing power connection at the factory. PW-1 stated that he had a small hosiery business and was not in a position to pay this amount and said that he could pay a lesser amount as per his capacity. But appellant, D.S. Chauhan, insisted for Rs.5,000/- and said that his remark on his application cannot be reversed by even the General Manager, DESU. PW-1 came back to his residence and again visited the office of the appellant, D.S. Chauhan five or ten days after. At this stage, PW-1 again said that before his said visit to the office of D.S. Chauhan, one Rajinder had visited his residence along with D.S. Chauhan three/four days after the date on which D.S. Chauhan had demanded a bribe of Rs.5,000/-. PW-1 further deposed that the accused persons were also accompanied by some technicians. Crl.A.No.447/2001 Page 7 of 39 Appellant, D.S. Chauhan, asked him ―KIYA HOOWA‖. PW-1 said that he could not arrange for the money. On this, appellant, D.S. Chauhan pointed towards the Electricity meter already installed at his house and said ―YE JO TERI DHARAM SHALA LAGI HUI HAI? YEH SAB METER WAGERA UTAAR DOON GAAN AGAR PAISE NAHIM DIYE‖. After that the accused persons left and while going appellant, D.S. Chauhan, told him to visit his office after 4/5 days. As per PW-1, on 28.3.1995 he visited the office of appellant, D.S. Chauhan and there it was agreed that he should pay Rs.4,000/- as bribe to the appellant for installing power connection at his factory. D.S. Chauhan himself reduced the demand amount to Rs.4,000/-, when PW-1 said that he was not in a position to pay Rs.5,000/-. PW-1 left the office of the appellant telling him that he would pay the amount to him in his office on 29.3.1995 at 10.00 a.m. Thereafter, PW-1 went and met his friend, Mahabir, and narrated the matter to him. Mahabir suggested to take PW-1 to the CBI Office. Thereafter PW-1 visited the CBI Office on 28.3.1995 at 1.00 p.m. There, PW-1 met one S.P., Shri Prabhakar and narrated the entire facts to him. Thereafter, S.P., Shri Prabhakar, made PW-1 write down his complaint. After recording of his complaint, Mr. Prabhakar sent PW-1 to Sh. Kaul, Inspector, CBI. PW-1 deposed that his complaint is Ex.PW-1/A and is in his handwriting and bears his signatures Ex.PW-1/A. 10. PW-1 further deposed that on 29.3.1995 at about 10.15 a.m. Shri Kaul, Inspector came to his residence along with two public Crl.A.No.447/2001 Page 8 of 39 witnesses and 3/4 CBI officers. They did not disclose the name of independent witnesses to PW-1 at that time. The two public witnesses enquired from him about the contents of his complaint and he verified about the correctness of allegations. Thereafter, he produced Rs.4,000/- at the instance of Inspector Kaul. Inspector who noted down the numbers of the said currency notes on paper. Thereafter, one chemical powder was applied on the said currency notes. He then said that money produced by him consisted of two hundred rupee notes and seventy six fifty rupee notes. Remaining chemical powder which was applied to the currency notes was thrown away in the latrine of his house. Thereafter, Inspector Kaul, told him to keep the tainted notes in his pocket and also directed him to pay that money to the appellant, Chauhan, only in the event of demand by him. He kept the said money in the front pocket of his pant. One of those public witnesses was also directed to accompany him and watch the proceedings. He was also directed to give the signal by facing his hand on the head in the event of acceptance of bribe by the appellant. 11. PW-1 also deposed that thereafter, they all left his residence for the office of appellant, D.S. Chauhan, Daya Basti, Shahazada Bagh, in a car. He and one public witness, who was directed to accompany him, went inside the office of the appellant, D.S. Chauhan. 3/4 public persons were there in the office of the appellant, Chauhan, and when they left, he told the appellant, D.S. Chauhan, that he has brought Rs.4,000/- as per demand. Crl.A.No.447/2001 Page 9 of 39 Appellant, D.S. Chauhan, told him to wait for a minute. Thereafter, he took out aforesaid Rs.4,000/- and extended the same towards the appellant, D.S. Chauhan, but he did not accept the money in his hand and told him to give the same to appellant, Rajinder Kumar. At this stage, learned P.P. requested to cross-examine PW-1. 12. During cross-examination by learned Public Prosecutor, PW-1 deposed that his statement was recorded under Section 161 of the Cr.P.C. and he had read the same. Aforesaid statement was correctly recorded as per his narration and he was satisfied after reading it. PW-1 deposed that it was correct to say that as soon as the aforesaid 3/4 persons present in the office of appellant, D.S. Chauhan, left, he said to him ―HAAN KAHO‖. It was correct to say that when he said ―HAAN SAHIB MAIN APNE WALE KAAM KE BAARE MAIN AIYA THA‖, on this appellant, D.S. Chauhan said ―PAISE LAE HO‖. It was also correct that ―he replied in affirmative by saying ―JI‖. PW-1, however, denied the suggestion that he did not tell the appellant, D.S. Chauhan, in so many words that he had brought Rs.4,000/- as per his demand and that he had stated in his statement under Section 161 of the Cr.P.C. that he told appellant, D.S. Chauhan, in his office that he had brought Rs.4,000/- as per his demand, he was confronted with his statement under Section 161 of the Cr.P.C. marked ‗X‘ where it was not so recorded. 13. PW-1, in his further examination by learned Prosecutor, deposed that while leaving his residence, CBI officials had a bag Crl.A.No.447/2001 Page 10 of 39 containing sealing material, a glass tumbler, empty bottles, sodium carbonate, etc. He accepted the suggestion that on reaching the office of appellant, D.S. Chauhan, he told him ―HAN SAHIB MAIN APNE KAAM KE BAARE MAIN AIYA THA‖. He also accepted the suggestion that on this appellant, D.S. Chauhan asked ―PAISE LAYE HO‖ and to which he replied in the affirmative. The appellant, D.S. Chauhan, told him to give the money to Rajinder, who was also present in the said room. PW-1 also accepted the suggestion that he had wished Rajinder, by saying, ―ABHI CHAUHAN SAHIB SE BAAT HUI HE‖ and to which Rajinder said that ―HAAN HAAN LAO KITNE HAIN‖. On this he took out the tainted notes from his pocket and handed over those Rs.4,000/- to Rajinder. Rajinder took the money in his right hand and transferred it to his left hand and thereafter kept the tainted money in left pocket of his pant. As soon as the money was accepted by Rajinder, the public witness went outside and gave signal to the trap party. PW-1 stated that it was correct to suggest that after this members of the raiding party came inside the room and Mr. Kaul showed his identity card. It is also correct that he enquired from Rajinder whether he has accepted the bribe of Rs.4,000/- from PW-1. He also accepted the suggestion that on this Rajinder told Shri Kaul that he has taken the money of bribe at the instance of the appellant, Chauhan, who is his officer. He also deposed that meanwhile, appellant, Chauhan, escaped from the room and further that Rajinder was apprehended by CBI officers from both his wrists. PW-1 accepted Crl.A.No.447/2001 Page 11 of 39 the suggestion that other officials of DESU were requested to join the proceedings of the raid, but no one agreed and left the office. The public witness who had accompanied him recovered the tainted notes from the pocket of Rajinder's pant, in the presence of other members of the raiding party. Currency notes were counted by both the public witnesses and they also compared their numbers with the numbers already noted down in the annexure to the handing over memo. PW-1 accepted the suggestion that sodium carbonate solution was in a glass of water and thereafter Rajinder was made to dip his right hand fingers in the said solution and the aforesaid solution turned from colourless to pink. He also accepted the suggestion that solution of right hand was transferred into an empty bottle and its mouth was covered with a cloth wrapper and thereafter the bottle was sealed with the seal of CBI. A rough site plan was prepared by the IO at the spot. He further deposed that bottle of the right hand wash is Ex.P-1, bottle containing left hand wash is Ex.P-2 and the bottle containing pocket wash is Ex.P-3. Hundred rupee currency notes are Ex.P4 and Ex.P-5. Fifty rupee currency notes are Ex.P-6 to Ex.P-81. He also identified the currency notes as the same currency notes which were given by him as bribe and accepted by Rajinder. He accepted that lining of the pocket of the pant of Rajinder was signed by the independent witnesses and Ex.P-82 is the same pant which Rajinder was wearing at the relevant time. He further deposed that the CBI officials searched for appellant, D.S. Chauhan, in the office, but in vain. Thereafter, Crl.A.No.447/2001 Page 12 of 39 they went to the residence of the appellant, D.S. Chauhan, at Rohini. Appellant, D.S. Chauhan was not present at his residence but his neighbour told that he had left shortly in his Maruti Car. He accepted that the appellant, D.S. Chauhan, had warned him not to depose against him and because of that fear he had incorrectly stated in his examination-in-chief that in the office of Mr. Chauhan he told him that he had brought Rs.4,000/- as per demand and thereafter he took out aforesaid four thousand and extended the same towards appellant, D.S. Chauhan, who told him to hand over the same to Rajinder Kumar. He accepted the suggestion that because of fear, he did not mention about the demand made by D.S. Chauhan. 14. During cross-examination by counsel for the appellant, D.S. Chauhan, PW-1 deposed that he met appellant D.S.Chauhan for the first time in January, 1995 but he did not remember the date. He had never met him before January, 1995. D.S.Chauhan visited his factory 3/4 times. His statement under Section 161 of the Cr.P.C. was recorded on his narration. It was in February, 1995, or the last week of January when appellant, D.S. Chauhan, pointed towards the electricity meter installed at his house and said ―YEH JO TERI DHARAMSHALA LAGI HUI HAI, YEH SAB METER WAGERA UTAAR DOON GAAN AGAR PAISE NAHIN DIYE‖. When on the day of raid he entered the office of appellant, D.S. Chauhan, he wished him by saying, ―CHOHAN SAHIB NAMESTE‖. Shadow witness was along with him. Other members of raiding party were present in the galary leading to the said office. PW-1 stated Crl.A.No.447/2001 Page 13 of 39 that it was incorrect to suggest that on 29.3.95 he had no conversation with appellant, Chauhan, because he was not present in the office on the said day. 15. PW-1, Shri Arun Kumar, was further cross-examined by counsel for Rajinder and he deposed that when he entered the office room of accused persons, 3/4 persons were already present there. PW-1 stated that he did not remember whether on the first occasion right hand or left hand wash of Rajinder was taken. They remained at the spot of the raid for about 2 or 2 ½ hours. PW-1 denied that Rajinder did not accept the money from him. 16. PW-2 Mohinder Lal, UDC, CPWD (Vigilance Unit), deposed that on 29.3.1995 during morning time, CBI officials came to his office and at their request Sh. Sukhdev Singh, Executive Engineer directed him and Shri K. Ganesh to go to the CBI office for the purposes of the raid. From their office, they accompanied the CBI team to the residence of the complainant at Shastri Nagar, Delhi. They satisfied themselves about the contents of the complaint. Thereafter the complainant produced Rs.4,000/- comprising of some hundred rupee currency notes and some fifty rupee currency notes. Numbers of those currency notes produced by the complainant, were recorded on a memo. One chemical powder was applied on them. They were told that if any-one after handling those notes would dip his fingers in another chemical solution, aforesaid solution would turn pink. The tainted notes were handed over to the complainant which he kept in the pocket of his pant. Complainant was directed that he Crl.A.No.447/2001 Page 14 of 39 should not touch the tainted notes again and give the same to the accused only in the event of specific demand and not otherwise. He was directed to accompany the complainant for watching the proceedings and hearing the conversation. He was also directed that in the event of acceptance of bribe, he should give signal by placing his hand over his hair. All the members of the raiding party were made to wash their hands. One IO bag was prepared which contained a few glass tumblers, few empty bottles, handing over memo, sealing material and the chemical powder of which solution was made. The remaining portion of chemical powder which was applied to the tainted notes was destroyed. Handing over memo was prepared which is Ex.PW1/B, which was signed by the complainant on both the sheets at respective points ‗B‘, Ex.PW1/B1 in his presence. He along with members of raiding party left the residence of the complainant at about 11.15 a.m. and at about 11.30 a.m. reached the DESU office at Shehzada Baagh. He along with the complainant went to the office of the accused, Chauhan, and other members of raiding party took positions. He identified accused, Chauhan, who was present in the Court. When he reached inside the office, Chauhan, was standing outside his office room in the corridor. Complainant greeted accused Chauhan by saying ―NAMASTE‘. Chauhan, returned the greeting and told the complainant to wait. At that time, Chauhan was talking to two or three other persons. 2/3 minutes later when those 2/3 persons left, Chauhan, said, ―PAISE LAAYE HO‖. Crl.A.No.447/2001 Page 15 of 39 Complainant replied ―HAAN LAYA HOON‖. Thereafter, complainant (sic Chauhan) said ―AAP KAA KAAM JO JAYE GAA‖. ―PAISE ANDER US AADMI KO DE DO‖. It was also recorded that Chauhan also took the name of the said person while pointing towards him. Aforesaid person was present in Court and this witness correctly identified the accused Rajinder Kumar. Thereafter, the complainant went inside the room, took out the tainted money, and told Rajinder that Mr. Chauhan has directed him to give the money to him. On this Rajinder, accused, accepted the money from the complainant. As soon as, the accused, Rajinder, accepted the tainted Rs.4,000/-, he went outside the room and gave the pre-arranged signal by placing his hand on his head. On this, other members of the raiding party came inside the office and apprehended the accused, Rajinder. Recovery memo, EX.PW-1/D was prepared at the spot. A rough site plan was prepared at the spot which is Ex.PW-2/A. CBI officials searched for the appellant, Chauhan, in the office, but in vain. Thereafter, they all went to the residence of Chauhan. He did not remember his address but the appellant was not present at his residence. PW-2, Mohinder Lal, UDC further at first deposed that the chemical powder which was supposed to be used during post-raid proceedings was kept in the IO bag, but then