Crl.A.No.995/2002 Page 1 of 51 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: April 01, 2011 Judgment Delivered on:May 06, 2011 + CRL.APPEAL NO.995/2002 SHRI BRIJ PAL SINGH ……Appellant Through: Mr.Pradeep Kumar Arya with Mr.Narindra Choudhry and Mr.V.K.Chopra, Mr.Anuj Chopra, Mr.Anuj Tomar, Ms.Esha Singh, Mr.Shobhit Mittal and Mr.Kunal Rana, Advocates Versus CBI ……Respondent Through: Dr.A.K.Gautam, Standing Counsel for CBI with Mr.Neeraj Kapoor, Advocate. CORAM: HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the 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 Yes Digest? SURESH KAIT, J. 1. The accused was charged, while functioning as a public servant, in the capacity of Sub-Inspector, Delhi Police, posted at Police Station: Jahangir Puri, on 12.07.1995 at about 7:00 pm at PS, Jahangir Puri, Delhi, for demanding and accepting an Crl.A.No.995/2002 Page 2 of 51 illegal gratification of `5,000/- from the complainant Ashok Kumar as a motive or reward for showing him official favour in the matter of a complaint of bank fraud submitted by one Samey Singh and thereby committed an offence punishable under Section 7 of Prevention of Corruption Act (hereinafter referred to as “P.C. Act” for short). Second charge against the accused is that as a public servant while working in the aforesaid capacity at the aforesaid time and place by corrupt or illegal means and by abusing his official position obtained for himself a pecuniary advantage of `5,000/- without any public interest, thereby, committed an offence punishable under Section 13(2) read with Section 13 (1) (d) of P.C. Act. 2. The accused pleaded not guilty and tried by the Special Judge, Delhi. Vide judgment dated 11th December 2002, the accused was convicted and vide order dated 16.12.2002 for offence punishable under Section 7 of the P.C. Act, 1988, the accused was sentenced to undergo Simple Imprisonment (SI) for a period of 2 years and a fine of `2,000/- and in default of payment of fine to undergo SI for a further period of two Crl.A.No.995/2002 Page 3 of 51 months. For the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988, the accused was sentenced to undergo SI for a period of 3 years with a fine of `3,000/- and in default of payment of fine, he shall have to undergo SI for 3 months. Both the substantive sentences were directed to run concurrently and period of detention already undergone during the investigation/trial of the case was set of. 3. The facts of the case in brief are that the accused had demanded a bribe of `10,000/- from Shri Ashok Kumar, complainant PW-1. On the complaint of aforesaid PW-1, a trap party was constituted by Shri S.K. Peshin PW-9, DSP of CBI consisting of Shri A.G.L. Kaul and Ved Prakash, Inspectors (Both witnesses not examined). Two eye witnesses, namely, Swaminath PW-3 from the Ministry of Health, Man Mohan Kumar PW-8 from the DGS & D and other staff of CBI(Anti Corruption Branch). After completing the requisite pre-trap formalities, the trap party left the CBI office at about 3:10 pm and reached the police station Jahangir Puri at about 4:50 pm. Crl.A.No.995/2002 Page 4 of 51 Accordnigly, the members of the trap party took up suitable position. 4. The Complainant PW-1, shadow witnesses PW-3 and public witness PW-8 went inside the police station. Since the accused was not present, they came out. Again, as directed by the TLO (Trap Laying Officer) went inside at about 6:00 pm. The appellant was found busy and told the complainant PW-1 to meet him at 7:00 pm. Accordingly, they met him again and handed over `5000/- to appellant. On receipt of pre-appointed signal from the shadow witness at 7.55 pm, the trap rushed in and accused was apprehended by his left wrist by Sh. Ved Prakash, Inspector. The appellant while trying to free himself, came out of the room and reached the passage outside. He took out some currency notes from the right hand side pocket of his pant and threw the same on the asbestos sheets adjoining the passage. The Government currency notes were photographed while they were lying on the Asbestos Sheets. The currency notes were found tallied with the numbers of the Crl.A.No.995/2002 Page 5 of 51 notes recorded in the annexure of the handing over memo prepared in the CBI office. 5. Inspector Ram Sewak PW-7, SHO of P.S. Jahangir Puri and A.C.P. were called. In their presence hand wash of the right hand of the accused was taken in a colourless solution of sodium carbonate which turned pink in colour and similarly, the wash of the inner-linings of the right pocket of the pant worn by appellant was taken which also gave positive result in the colourless solution of sodium carbonate. Both the pink solutions obtained were transferred to separate glass bottles which were duly sealed with CBI seal wrapped and got signed by the independent witnesses. 6. Thereafter the table drawer of accused was searched. Original complaint of Sh. Samey Singh PW-5, which was under verification was recovered. Pass-book and driving license of the complainant PW-1 and other documents were also recovered which were seized by the trap team of CBI. 7. During investigation, it was found that the appellant was verifying the complaint given by Sh.Samey Singh PW-5 and in Crl.A.No.995/2002 Page 6 of 51 connection with that complaint, the appellant had been calling the complainant Ashok Kumar, PW-1 to the police station repeatedly. 8. The prosecution examined 10 witnesses in all. Ashok Kumar PW-1 had deposed on 02.03.1998 that on 28.06.1995, accused Brij Pal Singh, SI called him to police station Jahangir Puri. He told him that by practicing fraud upon the bank a sum of `36,000/- had been withdrawn from the account of one Samey Singh PW-5. He was also told that in the aforesaid transaction of withdrawal of money, his (PW-1) bank account number as witness was written. The complainant told the accused that he had not given any witness for the bank account and the aforesaid withdrawal. The accused also threatened him that he would implicate him in the case if he failed to pay him `10,000/- as bribe. 9. Thereafter, the accused called him to the police station in that connection several times. On 12.07.1995 the accused further told him to pay first installment of `5,000/- on the same day at the police station. He (PW-1) came back to his Crl.A.No.995/2002 Page 7 of 51 residence. He wrote a complaint and went to CBI office and met S.P., Anti Corruption. 10. At about 1:30 pm, two public witnesses, namely Somi Nath (Swami Nath) PW-3 and Man Mohan Kumar PW-8 arrived in the room of PW-9 S.K.Peshin, DSP. The complainant produced `5,000/- comprising 50 GC notes of `100/- denomination each and gave to Shri S.K.Peshin PW-9. He noted down several numbers of those currency notes on paper Ex.PW-1/B. One chemical powder was applied to those GC notes. Thereafter, demonstration of chemical reaction of aforesaid powder was given by making one witness to touch the treated notes and dip his fingers in the plain water, but the colour of water did not change. Thereafter, one other chemical powder was dissolved in a clean glass of water to prepare a colourless solution. Same witness was directed to touch the treated notes with other hand and dipped his fingers in the said colourless solution. On this solution fingers turned pink. Aforesaid demonstration solution was thrown away. His search was conducted and he was not permitted to carry Crl.A.No.995/2002 Page 8 of 51 money. Thereafter, the aforesaid treated currency notes of `5,000/- were kept in the left pocket of his shirt, and was directed to give tainted money to the accused only on the event of specific demand. PW-3 Somi (Swami Nath) was directed to act as a shadow witness and watch the proceedings as well as hear the conversation between him and the accused. He was further directed to scratch his head in the event of acceptance of money by the accused. All the other members of the raiding party were searched by each other and no body was permitted to keep money on his person. One yellow bag was taken which contained empty bottle and chemical powder for making solution, sealing material, glass tumbler and CBI seal etc. All members of raiding party washed their hands before leaving for the raid. Pre-raid proceedings were prepared vide memo Ex. PW-1/C. 11. PW-1 further deposed that on seeing the accused in his room along with 3-4 persons sitting in the said room, the accused told PW-1 that he will talk with him after some time. Thereafter, they came downstairs and waited till 7:00 pm. Crl.A.No.995/2002 Page 9 of 51 Again, he along with Somi (Swami) PW-3 went to the room of accused at first floor at 7 pm. The conversation with the accused was as under: Brij Pal Singh - Kaya Haal Hai Complainant - Thik Hain Brij Pal Singh - Hoon; yeh kaun hain Complainant - Mere Mamaji ka ladka hai Brij Pal Singh - Kitne Paise Laye Ho Complainant - Paanch Hazar Rupaye 12. Thereafter, he took out `5000/- tainted money and gave to the accused Brij Pal Singh. He accepted the money in his right hand and kept the same in the right side pocket of his pant. Thereafter, complainant asked “MERE SAATH KOI AISI BAAT TO NAHI HOGI”, and accused told him that he would close the file and nobody would harass him. Then, accused asked him “DOOSRI KISHT KAB DEGA”, and complainant replied, “KAL DE DENGE”. Thereafter, accused Brij Pal Singh came out of the room. Meanwhile, PW-3 Somi (Swami) Nath gave signal by scratching his head and members of raiding party reached at the spot. Two CBI officials Mr.Kaul and Crl.A.No.995/2002 Page 10 of 51 Mr.Javed caught hold of the accused from his respective wrists. Accused started shouting. CBI officials, thereafter, gave the introduction to the accused. He managed to get free from his right hand. He took out tainted money from the right pocket of the pant and threw it on the asbestos sheet of the roof of the room of the reader of SHO. ACP and SHO of the police station were summoned at the spot and were asked to join further proceedings. Somi Nath PW-3 detailed the transaction as well as the conversation took place between him and the accused. Photographer was summoned, who took photographs of the Govt.Currency notes lying on the roof. Manmohan PW-8 picked up GC notes from the roof of the room of the reader and his photographs were taken while he was picking the GC notes. Numbers of those GC notes were also compared by PW-8, with the numbers already noted down on the list Ex.PW- 1/B and he confirmed that GC notes were same. 13. Thereafter, a glass of water was brought and accused Brij Pal Singh was made to dip his right hand fingers in aforesaid plain water, on this water turned pink. Aforesaid right hand Crl.A.No.995/2002 Page 11 of 51 wash was transferred into a clean empty bottle, its mouth was covered with a piece of cloth. It was sealed with the seal of CBI and identification lable was prepared and pasted on the bottle. Bottle was marked as „RHW‟. The accused was made to remove his pant. Fresh water in a clean glass of water was fetched and inner lining of the pocket of the pant of the accused was dipped, on this water turned pink. Thereafter, pocket wash was transferred into a clean and empty bottle, its mouth was closed and covered with a piece of cloth. The bottle was sealed with the seal of CBI and identification lable was prepared and pasted on the bottle. Recovered currency notes, bottles of washes and the pant of the accused etc., were seized vide recovery memo Ex.PW-1/D. 14. Thereafter, room of the accused was searched from where his (PW-1) „Bank Pass Book‟ and „Driving Licence‟ were recovered. 15. The cross-examination of the complainant was deferred at the request of the accused, as his counsel was not available on that day. However, this could take place only on Crl.A.No.995/2002 Page 12 of 51 24.07.1998 when PW-1 made a summersault and proved a complete turn-coat to the prosecution. He deposed in cross- examination as under:- “I do not know anyone with the name of Harish Aggarwal. I visited CBI office for lodging the complaint with one Mahender Kumar. It is correct that I took Mahender Kumar alongwith me because he knew some CBI officers. He reached at CBI office at around 11 a.m. In the CBI office, first of all, we went to the office of SP Sh. Dutta. It is correct that Mahender Kumar knew Mr. Dutta, SP, Anti Corruption, CBI. Thereafter, Mr. Dutta, called DSp Sh. S.K. Peshin. He sent me along with Shri S.K. Peshin to his room. It is correct that Mr. Dutta directed Sh. S.K. Peshin to get my complaint recorded from me. It is correct that Mr. Peshin interrogated me regarding the facts and on his dictation I wrote down my complaint. It is correct that accused beat me at the instance of SHO. It is also correct that SHO Jahangirpuri had demanded a bribe of `30,000/- from me. I had told Sh. Peshin about this fact. It is correct that my complaint was drafted several times and after tearing few drafts of complaint, finally complaint Ex.PW-1/A was written. Witnesses Manmohan and Swaminath were already sitting in the room of Sh. Peshin, when I arrived along with him. I produced `5,000/- for trap money. Aforesaid amount comprised of few `100/- GC notes and few `50/- GC notes. We left CBI office for raid at about 2 p.m. It is correct that I did not wash my hands with soap and water before leaving for the raid. I cannot admit or deny if the other members of the raiding party washed their hands. I had visited CBI office on 10.7.95 also. On the said day, I orally narrated the factum of Crl.A.No.995/2002 Page 13 of 51 bribe demanded by the accused to Shri S.K. Peshin. I also told him about the bribe demanded by the SHO. It is correct that on 10.7.95 also, a trap was organized by Shri S.K. Peshin and trap party went to P.S. Jahangirpuri to trap the accused. It is correct that on 10.7.95, accused did not meet me at the police station. Trap Party did not go to the police station on 11.7.95. I had handed over my complaint Ex. PW-1/A to Sh.S.K. Peshin. Witness Swaminath and Manmohan accompanied the trap party to P.S. Jahangirpuri on 10.7.95 also. On 12.7.95, we reached at P.S. Jahangirpuri at around 3.20 pm. At the time of trap, Manmohan accompanied me as shadow witness. My statement was not recorded by CBI at any stage during the investigation. On 12.7.95, at about 3.30 pm, when we reached at police station accused Brij Pal Singh was available in the police station. I met him in his room. I along with Manmohan had gone to the room of accused upstairs but remaining members of the raiding party remained downstairs. At that time, Sh.S.K.Peshin was sitting with SHO in his room. It is correct that remaining members of the raiding party took position in the room of duty officer. When I reached in the room of the accused, ¾ public persons including one Narender Singh were already sitting there. Manmohan did not accompany into the room of the accused and he stayed outside. He stayed at a distance of 5-7 feet from the room of the accused in the gallery. After we reached the room of the accused, he left the room for sometime. It is correct that in the absence of accused, aforesaid Narinder demanded money from me and I handed over aforesaid tainted `5000/- to Narender in absence of accused. It is correct that this happened in the presence of public persons who were already present there. It is correct that at the time of trap I had no conversation with the accused, But I had Crl.A.No.995/2002 Page 14 of 51 onversation with said Narender. It is correct that after I passed on the money to Narinder, trap party entered said room and at the same moment, accused also entered his office. It is also correct that I told Shri Peshin that I had given trap money to Nainder on his demand. It is also correct that on this S.K. Peshin got annoyed and told me that I should have given tainted money to the accused. When I entered the room, I shook hand with the accused. On seeing the trap party, Narinder Singh got up and pushed the money towards the accused and on this accused Brij Pal Singh came out of the room. He refused to accept that money from Narinder saying “what is this?” It is correct that accused was apprehended by CBI team and Narinder managed to run away. It is correct that thereafter, S.K. Peshin along with the raiding party, accused as well as SHO straightway came to CBI office. It is also correct that entire proceedings of the raid were recorded in the CBI office. I have seen handing over memo Ex. PW-1/C. It was prepared in the CBI office after the raid. It is correct that I do not know English. It is also correct that before obtaining my signatures on handing over memo, it was not read over to me. Numbers of the GC notes were not recorded during pre-raid proceedings. It is correct that Ex.PW-1/B was prepared in the CBI office after the raid. I have seen Ex. PW-1/D. It bears my signatures on all the four pages. I appended these signatures in the CBI office. When I signed aforesaid recovery memo, it was already written. It is correct that recovery memo PW-1/D was not read over to me nor its contents were explained to me before obtaining my signatures. Contents of these documents were not explained to me even thereafter. I signed the recovery memo presuming that CBI officers must have narrated the correct facts in the memo. Crl.A.No.995/2002 Page 15 of 51 We reached CBI office at 6 pm. It would be incorrect to say that we reached back to CBI office at about 11 pm in the night. It would be incorrect to say that accused demanded bribe from me at around 7.30 pm or that he was arrested at that time. ACP Sanjiv Kumar did not arrive at the spot during raid proceedings. I remained at CBI office for about 15 minutes after our arrival back from the raid. “It is correct that at the time of raid, Sh.Peshin, DSP directed the public persons sitting in the room of the accused to leave the room. He did not search the room of the accused in my presence. Nothing was recovered from the said room in my presence. When I left CBI office, after the proceedings, above said independent witnesses also left CBI office along with me. Inspector D.M. Sharma, was also a member of the trap party. I was examined by the Ld. PP in this court on 02.3.98. My said version is incorrect and version given today is correct. I gave statement dted. 2.3.98 under the pressure of 2 or 3 CBI officers. It is correct that they threatened me that if I failed to support the prosecution case, I can suffer dire consequence. The version given by me today was told by me to Inspector D.N. Sharma. Q. You have stated that when the trap party entered the room of the accused Narinder Kumar pushed tainted money towards the accused and accused came out of the room saying “what is this?”. Please tell at that time where Narinder Kumar and Brij Pal Singh were present. A. At that time, Narinder Singh was sitting on a chair and accused was standing by the side of his table. It is correct that Narinder Kumar pushed the money towards the accused on the directions Crl.A.No.995/2002 Page 16 of 51 of S.K.Peshin. It is also correct that because accused was not ready to accept the money and Sh. S.K.Peshin wanted the money to be forced upon him, in the process money fell down on the ground. Rough side plan was not prepared in my presence on the day of trap. It is correct that my complaint was got written on 10.7.95. It is also correct that on 12.7.95, Sh. Peshin made me to copy said complaint dated 10.7.95 and thereafter the complaint dated 10.7.95 was torn off because trap did not succeed on 10.7.95. No document was prepared in the CBI office on 10.7.95. On 12.7.95, when I left CBI office for my residence, SHO Jahangirpuri was still in the CBI office. I do not know whether he was arrested. It is correct that accused Brij Pal Singh never demanded bribe from me nor he accepted this ame. It is correct that because accused used to beat me at the instance of SHO, therefore, I was annoyed to (with) him. It would be incorrect to say that Swaminath accompanied me as a shadow witness. It was only Manmohan who accompanied me as a shadow witness. It is correct that I did not have conversation described at portion “A” to “A” of my examination in chief dated 2.3.98 with the accused. It is correct that this conversation took place with Narinder but I substituted his name with the accused under the pressure of CBI. Narinder was also a policeman. I had seen him on several occasions with SHO.” 16. Considering the conduct of complainant in making two entirely contradictory statements, the public prosecutor CBI then cross-examined him, but failed to bring him around to his case. While in his re-cross-examination by defence counsel, he reiterated what he had stated on 24.07.1998, adding further that a trap was laid on 10.07.1995 and he changed the Crl.A.No.995/2002 Page 17 of 51 date to 12.07.1995 at the behest of Sh.S.K.Peshin PW-9, who was T.L.O. of this case. 17. Interestingly, not only the complainant PW-1 has turned hostile, both the two public witnesses joined in the raiding party, namely, Swami Nath. PW-3 and Manmohan PW-8, who acted according to the prosecution as a shadow witness and recovery witnesses respectively. Both public witnesses PW-3 and PW-8 completely had turned hostile and did not support prosecution case. Public prosecutor cross-examined them at length and confronted with them the statements purported to had been recorded under Section 161 Cr.P.C., however, he could not elicit anything favourable to the prosecution from them. Their testimonies did not land any corroboration to the complainant PW-1, who as discussed above, earlier deposed in favour of the prosecution but later on retracted from his deposition in chief examination recorded on oath on 02.03.1998. 18. The trial Judge has relied upon the testimony of S.K.Peshin DSP, PW-9 TLO of the case and circumstantial evidence of K.S.Chhabra, Sr. Scientific Officer PW-4, Sh.Samey Crl.A.No.995/2002 Page 18 of 51 Singh PW-5, P.D.Vasandhani PW-6, and Inspector Ram Sewek PW-7. 19. To this effect it is relevant to discuss all the aforesaid witnesses in brief how they had put light in the case while deposing in the Court. 20. PW-4 Sh.K.S.Chhabra, Sr.Scientific Officer Grade-I cum Assistant Chemical Examiner, Govt. of India CFSL Delhi deposed that on 18.07.1995, two sealed bottles were received in the laboratory; their seals were intact and tallied with official specimen enclosed; both bottles contained pink colour liquid with sediments and were marked as “RHW” and “RPPW”, which gave positive tests for phenolphthalein and sodium carbonate. He proved his report as Ex.PW-4/A. This witness had not been cross-examined. 21. PW-5, Samey Singh, was having a bank account with State Bank of India, at Jahangirpuri Branch, in the year 1995. Regarding embezzlement of