REPORTABLE IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.Appeal no.340 of 2002 % Date of Decision : March 30, 2007 #Sunil Kumar Sharma Petitioner ! Through: Mr. Sanjay Jain, Senior Advocate, Amicus Curiae for the petitioner. Versus $ State (CBI) Respondent ^ Through: Ms.Neelam Grover, Advocate CORAM:- *HON'BLE MR. JUSTICE S.N. AGGARWAL 1.Whether reporters of Local paper may be allowed to see the judgment? 2.To be referred to the reporter or not? 3.Whether the judgment should be reported in the Digest? S.N. AGGARWAL, J. The appellant, before he was entrapped in a corruption case on 2.11.1994, was working as an Inspector in Delhi Police and was posted as Chowki in- charge at Police Post Sarita Vihar, New Delhi. Entrustment of and investigation of a dowry death case by him turned out to be his nemesis. He was accused of demanding and accepting illegal gratification of Crl. Appeal no.340/2002 Page 1 of 42 Rs.4,500/= from the relatives of the deceased as consideration to help them in early recovery of dowry articles from the house of deceased's in-laws. The appellant was charged and tried by the Special Judge, Delhi for offences under Section 7 and also under Section 13(i)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and after trial was convicted and sentenced on the said charges vide impugned judgment passed by the Special Judge, Delhi on 10.4.2002. He was sentenced to rigorous imprisonment for five years with a fine of Rs.5,000/= for each of the offences for which he was convicted. Aggrieved by his conviction and sentence, the appellant has preferred this appeal. 2. The facts of the prosecution case briefly stated are as follows. 3. On 29.4.1994 Ms.Reema, daughter of PW-2 Surinder Singh, was married to Shri Mukesh, resident of Madan Pur Khadar, New Delhi and she died an unnatural death within 4-5 months of her marriage by Crl. Appeal no.340/2002 Page 2 of 42 strangulation in the night intervening 10/11-9-1994. Her father (PW-2) got a criminal case registered against the husband of his deceased daughter, her father-in-law and two sisters-in-law vide FIR no.294/94 under Sections 498-A/304-B/34 IPC at Police Station Badar Pur. The investigation of this case was entrusted to the appellant and during investigation the deceased's father (PW-2) contacted the appellant on several dates prior to 2.11.1994, the date on which raid was held by the Central Bureau of Investigation (in short 'CBI') for trapping the appellant in the corruption case on the complaint of PW-1 Surinder Kumar, co-brother of deceased's father (PW-2). 4. As per prosecution case on 2.11.1994 the deceased's father along with his co-brother, Surinder Kumar, had contacted the appellant in the morning at Police Post Sarita Vihar, New Delhi and had requested him for the return of dowry articles of the deceased and also for proper investigation of the case. The appellant at that time was in a hurry and as such, he Crl. Appeal no.340/2002 Page 3 of 42 asked them to contact him at Patiala House Courts, New Delhi. Accordingly, the deceased's father along with his co-brother, Surinder Kumar, contacted the appellant in Patiala House Courts, New Delhi at about 11.00 AM on 2.11.1994. At that time the appellant demanded the bribe of Rs.5,000/= from them in consideration of proper investigation and return of the dowry articles given to the deceased at the time of marriage. PW-1 Surinder Kumar, filed a written complaint dated 2.11.1994 to the Superintendent of Police, CBI (Anti-Corruption Branch), New Delhi alleging therein demand of bribe of Rs.5,000/= by the appellant from him in consideration of proper investigation and return of dowry articles. PW-1 also alleged in his complaint that the appellant had asked him to pay the said amount on the same evening of 2.11.1994 at Police Post Sarita Vihar. The complainant had further alleged in his complaint that he did not want to pay the bribe money and requested the CBI authorities for taking legal action into the matter. Crl. Appeal no.340/2002 Page 4 of 42 On this complaint of the complainant (PW-1), case no.RC-79(A)/94-DLI was registered under Section 7 of the Prevention of Corruption Act on 2.11.1994 and its investigation was entrusted to PW-9 Shri S K Peshin, DSP, CBI (Anti-Corruption Branch, New Delhi). 5. PW-9 Shri S K Peshin after satisfying himself decided to lay a trap by arranging a trap party consisting of himself, two independent witnesses, S/Shri Tahir Hussain and Jitender Kumar Sharma, both from CGO Complex, besides other officers of the CBI. Pre-raid proceedings were conducted in the CBI office. Thereafter as per instructions given during pre-raid proceedings the complainant and shadow witness met the appellant at the Police Post Sarita Vihar in the evening on 2.11.1994. The appellant during conversation accepted the request of the complainant for reducing the bribe amount by Rs.500/=. The appellant directed the complainant to keep the bribe money in his table drawer which the complainant did accordingly. Thereafter the appellant invited them Crl. Appeal no.340/2002 Page 5 of 42 for tea and came out from his office room. When they were going for taking tea, Constable Ashok Kumar met him, who was directed to bring the money kept in his table drawer. Constable Ashok Kumar picked up the money from the table drawer of the appellant as per his directions and by his left hand kept the same in his left side pant pocket and came out from the room of the appellant. Meanwhile, the pre-appointed signal was given by the shadow witness and thereafter the raid party led by PW-9 Shri S K Peshin, immediately rushed to the spot. The appellant on seeing the raid party ran away from the spot. However, Constable Ashok Kumar was caught red handed at the spot. He immediately disclosed that he in compliance of the directions of the appellant had picked up the money from the drawer of his table and the same was kept by him in the left pocket of his pant. The appellant was chased by the officials of the CBI and was brought to the spot. The recovery of the tainted money was made from the left side pant pocket of Constable Ashok Crl. Appeal no.340/2002 Page 6 of 42 Kumar. The appellant as well as Constable Ashok Kumar were arrested from the spot on 2.11.1994 and post-raid proceedings were done at the spot and after the complete investigation of the case, the challan was filed against the appellant. 6. The appellant was charge-sheeted for offences under Section 7 and also under Section 13(i)(d) read with Section 13(2) of the Prevention of Corruption Act on 5.12.1995. He pleaded not guilty to the charge and was tried by the Special Judge, Delhi. The prosecution examined nine witnesses and they are PW-1 Surinder Kumar (complainant); PW-2 Surinder Singh (deceased's father); PW-3 Jitender Kumar (independent witness); PW-4 R S Gupta (the then Additional Commissioner of Police–examined to prove the sanction order); PW-5 Tahir Hussain (shadow witness); PW-6 V S Bisaria, Senior Scientific Officer; PW-7 Constable Ashok Kumar [the person from whom bribe money was recovered]; PW-8 Shri Rajiv Kumar Chadha DSP, CBI (2nd I.O. of the case); and PW-9 Shri S K Peshin, DSP, CBI Crl. Appeal no.340/2002 Page 7 of 42 (the initial I.O. of the case). 7. The statement of the appellant was recorded under Section 313 Cr.P.C. He also examined two witnesses in his defence and they are DW-1 Constable Vikram Singh and DW-2 Const. Ratan Lal. 8. At the conclusion of the trial and upon consideration of the evidence adduced by the parties, the court below found the appellant guilty of the offences for which he was charged vide impugned judgment and order dated 10.4.2002. Aggrieved by the findings of the court below, the appellant has preferred this appeal. 9. Mr.Sanjay Jain, learned senior counsel, was appointed as Amicus Curiae to assist the court on behalf of the appellant whereas Ms.Neelam Grover, learned Advocate, appeared on behalf of the CBI/respondent. Learned Senior Counsel has also filed his written submissions which have been carefully gone through by me. I have also gone through the entire record of the trial court as well as the impugned Crl. Appeal no.340/2002 Page 8 of 42 judgment with utmost care. 10. The learned Senior Counsel for the appellant had argued that there are fundamental and other errors in the impugned judgment. He had referred to the testimony of the witnesses on record and by reference to the same, he had argued that there was absolutely no evidence of demand or acceptance of illegal gratification by the appellant and in the absence of such evidence, the court below had committed an error in shifting the onus of proof to explain the charges slapped on him. The evidence pointed out by the learned counsel and the contentions raised thereon during the course of arguments shall be dealt with at appropriate places hereinafter. 11. On the other hand, Ms.Neelam Grover, learned Advocate for the CBI/respondent, had argued in support of the reasonings for conviction contained in the impugned judgment. She had submitted that though the independent witnesses have turned hostile but their testimony to the extent they have supported the Crl. Appeal no.340/2002 Page 9 of 42 prosecution by their admission of various acts may be looked into as corroborative evidence to support the testimony of the complainant (PW-1) and that of the trap laying Officer (PW-9). She also relied upon the conduct of the appellant of his running away on seeing the raid party and this, according to her, proves the guilt of the appellant of accepting the illegal gratification from the relatives of deceased Reema. Ms.Grover relied upon a judgment of the Supreme Court in State of UP V/s. Zakaullah 1998 SCC (Cri) 456 in support of her contentions that conviction can be based only on the statement of trap laying Officer de hors other evidence on record. I have given my anxious thought to the rival arguments advanced by the learned counsel for the parties. 12. All cases of corruption have two important aspects and they are (i) demand and (ii) acceptance. Unless demand and acceptance of illegal gratification by the public servant charged with under the Prevention of Corruption Act are proved by the Crl. Appeal no.340/2002 Page 10 of 42 prosecution beyond doubt, the presumption provided for in Section 20 of the Act cannot be drawn. Three cardinal principles of criminal jurisprudence are well settled and they are as follows :- i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case; ii) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and iii) that the onus of the prosecution shifts. 13. The Evidence Act also does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of his Crl. Appeal no.340/2002 Page 11 of 42 version throws doubt on the prosecution case. 14. The learned Senior Counsel, who appeared for the appellant, had challenged to the validity of the sanction order passed by the sanctioning authority PW- 4, Shri R S Gupta, then Addl. Commissioner of Police, Delhi. He urged that there was complete non- application of mind on the part of the sanctioning authority in granting the sanction for prosecution. In support of his said contention, he placed reliance upon three judgments viz (i) Ganesh Prasad Shukla V/s. State of Bihar 2000 Crl.L.J. 4841; (ii) Har Bharosey V/s. State of UP 1988 Crl.L.J. 1122; and (iii) M ohd.Iqbal Ahmed V/s. State of AP AIR 1979 SC 677. These judgments on the point of sanction are of no consequence to the contention relating to validity of sanction raised on behalf of the appellant. PW-4 Shri R S Gupta, who at the relevant time was the competent authority to sanction the prosecution, has testified in his testimony during the trial that he had granted sanction for prosecution of the appellant after Crl. Appeal no.340/2002 Page 12 of 42 consideration of all the material placed before him. On perusal of sanction order, Exhibit PW-4/A, it cannot be said that the said order was passed by the sanctioning authority without application of mind as alleged on behalf of the appellant. Hence, the contention of the appellant relating to validity of sanction is found to be without any substance and is, therefore, rejected. 15. Now adverting to the merits of the case, it may be noticed at the outset that the appellant being the Investigating Officer of a dowry death case has heavily relied upon the fact that the relatives of the deceased in the said case had been contacting and threatening him prior to the date of raid held on 2.11.1994 and that he had recorded such threats in his case diary for 25.10.1995 and 29/3.10.1994 (Exhibits DW-1/A, DW-1/B and DW-2/A respectively). The appellant has also submitted in his defence that the father of the deceased (PW-2) had lodged a complaint against him prior to the date of raid in the Vigilance Crl. Appeal no.340/2002 Page 13 of 42 Department on 19.9.1994 pursuant to which a departmental enquiry was held against him in which after enquiry he was exonerated. 16. The learned Senior Counsel for the appellant had vehemently argued that since the relatives of the deceased had an animosity with the appellant as they were not satisfied with the investigation of dowry death case done by the appellant, they had conceived a plan in connivance with their another relative Mool Chand, a Constable in Delhi Police to falsely implicate the appellant in a corruption case and to cause harm to him. 17. It was further contended by the learned Senior Counsel that neither there was any demand by the appellant nor the bribe money was ever accepted by him from any of the relatives of the deceased. According to him, Constable Mool Chand ('Phoopha' of the deceased) and deceased's father, Surinder Singh (PW-2) were also the members of the raiding party and were present at the time of raid on 2.11.1994 but the Crl. Appeal no.340/2002 Page 14 of 42 prosecution had deliberately withheld Constable Mool Chand from examining him as witness in the case. The contention was that had Constable Mool Chand been examined then he would have unfolded the real truth because it was this man who had kept the money in the drawer at the time of raid. 18. In order to appreciate the above contentions advanced on behalf of the appellant, it would be necessary to refer to the explanation given by the appellant in his statement under Section 313 Cr.P.C., where he has given an explanation why he was involved in the present case. The relevant portion of his statement under Section 313 Cr.P.C. is extracted below :- “......In November 1994 I was investigating a criminal dowry death case bearing FIR no.294/94, PS Badarpur. In this case, Smt.Reema, d/o Surinder Singh PW was the deceased. The case was registered against Mukesh and Ajit Singh, Kumari Bala and Smt.Manju (the husband, father in law and sisters in laws of the deceased). I had arrested Mukesh and Ajit Singh, However, the two ladies, Kumari Bala and Smt.Manju had applied for anticipatory bail. They were granted bail by the court of Sessions on Crl. Appeal no.340/2002 Page 15 of 42 6.10.94, although I had opposed the bail application. Grant of anticipatory bail to the ladies annoyed the family members of the deceased, including the complainant and other family members of the deceased. Those persons carried impression that bail was granted by the court because of the weak opposition though it was not the fact. Surinder Singh, the father of the deceased had complained against me to the Vigilance Department and the DCP, South Distt. Both the witnesses had appeared in the inquiry in my presence and their complaint was found without any substance and the same was filed. Surinder Singh, father of the deceased PW went to the court of ACMM and made allegations against me that I was colluding with the accused persons of dowry death case and the Hon'ble Court recorded the statement of Surinder Singh and his family members. One Mool Chand Ct., of Delhi Police is related and known person to Surinder Singh and Surinder Kumar, PWs. Mool Chand is not an authorised person. There has been many complaints against his integrity and he is facing departmental inquiry. Criminal cases stands registered against him. He was the person behind the screen to involve me in this case. On 29.9.1994 the said Mool Chand Const., Surinder Singh and Surinder Kumar came to the Police Post and had threatened me that if I failed to show the return of the dowry articles, they will not allow me to remain in service. I recorded the threat in the case diary dated 29.10.1994. Such threats were Crl. Appeal no.340/2002 Page 16 of 42 also extended to me on 25.10.1994 and I recorded the said threat in my case diary on 25.10.1994. I also recorded the threats in daily diary dated 29/30.10.1994 of PP Sarita Vihar....” 19. The above statement of the appellant clearly indicates that prior to the date raid was held on 2.11.1994, the relatives of the deceased had extended threats to the appellant which was recorded by him in his case dairy of 25.10.1994 and 29/30.10.1994. The case diaries containing the threats have been proved by DW-1 and DW-2 as documents Exhibit DW-1/A, DW-1/B and DW-2/A. 20. The learned court below has taken note of the plea of the appellant regarding the threats extended to him by the relatives of deceased recorded in case diary Exhibits DW-1/A, DW-1/B and DW-2/A and in this regard it would be necessary to quote the observations and findings of the court below on this aspect contained in paras 77, 78 and 98 to 102 of the impugned judgment and the same are reproduced hereinbelow :- Crl. Appeal no.340/2002 Page 17 of 42 “77 PW-1 conceded during cross examination that he accompanied by PW-2 had visited and met the accused at PP on 29- 30/09/94. He however, denied that Const. Mool Chand was with him on the said date. He further denied the suggestion that he (PW2) and Const. Mool Chand had extended threats to the accused on the said dates. He further denied the suggestion that similar threat was given by him and others to the accused on 25.10.1994 and 29.10.1994. He stated that he would not know if accused had made any entry with regard to such threats in the case diary or DD of P.S. It was suggested to him that he was bearing grudge and ill will against the accused and, therefore, had lodged false complaint against him. He denied the said suggestion categorically. Similar suggestions about threats extended on 29- 30.09.94, 25.10.94 and 29.10.94 have also been given to PW-2, who also denied the same, also showing ignorance if any entry in this regard had been made by the accused in the case diary or general diary. 78 Accused sought to prove the aforesaid entries in the case diary and daily diary through DW-1 and DW-2. DW-1 Const. Vikram Singh Proved the case diary no. 20 & 21 Ex. DW1/A and Ex. DW1/B pertaining to the dowry death case referred to earlier. DW proved DD No. 8 dated 29-30/09/94 vide copy Ex. DW2/A in the hand of Const. Dhani Ram. Ex. DW1/A is the copy of the case diary dated 25.10.94 while Ex. DW1/B is the copy of case diary of 29.10.94, both purported to be in the hand of the accused. In the case diary Ex. DW1/A the accused, as I.O. of the dowry death case, is shown to have recorded inter alia that outside the Court, Const. Mool Crl. Appeal no.340/2002 Page 18 of 42 Chand and some of his relatives had demanded early restoration of dowry or else they would take suitable action against him Ex. DW1/B. Similarly inter alia also refers to Const. Mool Chand and his relative Surinder Singh (PW-2) having met again outside the Court and having threatened to make a complaint against him before superior officers. In this case diary he also mentioned that the aforesaid persons had gone away extending threats that they would see him and that he would face difficulty in his service. 98 I am not prepared to draw any motive for false implication even from the daily diary entry Ex. DW-2/A, which essentially pertains to report recorded at the instance of the accused as to what had transpired in the Court on 29.10.94. Said entry no where alleges any threats having been extended. 99 Case diaries Ex. DW-1/A & B on the other hand however, perse appears to be fabricated assumbly after involvement in this case. Interestingly, the date and place of occurrence mentioned in the said case diary is described as 10.11.94, even though the case diaries purport to have been recorded on 25.10.94 and 29.10.94. The case diary, even otherwise, was a record within the control of the accused. It is quite apparent that he fabricated these case diaries so as to create ground of defence in the case in hand. Assuming such threats had been extended as are fount reflected in these case diaries, there is no explanation whatsoever on the part of the accused as to what steps did he take to ensure that the threats were not translated into action. Crl. Appeal no.340/2002 Page 19 of 42 100 It is inconceivable that a police officer of the rank of Inspector would sit quiet even on hearing threats from a police official of as low a rank as a Constable. If such incidents as alleged by the accused actually happened they amounted to serious misconduct, even penal offences, on the part amongst others, of constable Mool Chand. There was nothing stopping the accused from initiating action against him under the law, or through the department by way of reports to his superiors. There is nothing on record to indicate any such initiative on the part of the accused. 101 Noticeably, the accused has himself not entered the witness box to vouch safe the acts pertaining to alleged threats received by him on 25.10.94 and 29.10.94. The mere reference to the case diaries through DW1 cannot result in the contents thereof being held even remotely being proved. The fact that accused avoided entering the witness box to depose to such effect rather shows he would not take the risk of facing inconvenient questions in the nature mentioned above, rendering the defence plea further suspect. 102 All said and done, I am of the considered opinion that the theory of threats by the Complainant side has been invented on the basis of record that has been fabricated. In these circumstances Chander Bhan Vs. Stated 73 (1998) Delhi Law Times, 318 (as relied upon by defence) is distinguishable on facts.” 21. A reading of the findings of the court below on the aspect of case diary ( Exhibits DW-1/A, DW-1/B Crl. Appeal no.340/2002 Page 20 of 42 and DW-2/A) would clearly indicate an erroneous approach on the part of the trial court in shifting the onus of proof from prosecution to the accused. I am of the view that the learned court below ought to have considered the facts of the case in its entirety while adverting to the controversy as to whether or not the appellant was guilty of committing the offences complained of.