Crl. A 113-2003 Page 1 of 30 IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on : 16.03.2011 Judgment delivered on: 21.04.2011 + Crl.A.113/2003 SH MOHAN LAL WALIA ..... APPELLANT Vs STATE (C. B.I) DELHI ..... RESPONDENT Advocates who appeared in this case: For the Appellant : Mr. K B Andley, Sr Advocate with Mr M Shamikh, Advocate For the Respondent : Ms Sonia Mathur, Advocates CORAM :- HON'BLE MR JUSTICE RAJIV SHAKDHER 1. Whether the Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to Reporters or not ? No 3. Whether the judgment should be reported Yes in the Digest ? RAJIV SHAKDHER, J 1. The captioned appeal has been preferred under the provisions of Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the „Code‟) against the judgment and order of sentence dated 11.02.2003 and 13.02.2003 respectively passed in CC No. 26/97 RC No. 72(A)/96/C.B.I./ACB/New Delhi by the Special Judge, Tis Hazari Delhi. 2. By virtue of the impugned judgment, the appellant has been found guilty under the provisions of Section 7, Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the „P C Act‟). 3. Briefly, the case of the prosecution is as follows: 4. On 21.09.1996 at about 1200 hrs one Sh Purshottam Singh (PW6) made a complaint (Ex PW6/A) dated 21.09.1996 to the Superintendent of Police, Anti Corruption Branch (in short „ACB‟), CBI, New Delhi about, a bribe, in the sum of Rs 2000/- having been demanded by the appellant. The complainant (PW6) alleged Crl. A 113-2003 Page 2 of 30 that the cause for seeking a bribe from him was his involvement in a criminal case filed against him under Section 308/323/34 of the Indian Penal Code, 1860 (in short „IPC‟) which was being investigated by the appellant. The said criminal case against the complainant (PW6) was instituted in turn based on a complaint filed by his neighbours. It was alleged in the complaint (Ex PW6/A) by PW6 that the appellant had warned him that in case the said bribe was not paid by 5.00 pm on that very day, he and the other co-accused, would end up in jail on the basis of the statement of the third witness, who was still to be examined. 4.1 In the complaint (Ex PW6/A) a reference was made to the complainant‟s (PW6‟s) fracas with his neighbours which took place on 13.09.1996, and the initial demand for bribe (to which reference is made above), which was made of him a day prior (i.e., 20.09.1996) when, he was being accompanied to Court by the appellant. 5. On the basis of the afore-mentioned complaint (Ex PW6/A), a FIR (Ex PW8/B) was registered. 6. Consequent thereto, the Superintendent of Police, ACB, CBI entrusted the case to Sh B K Pradhan (PW8), Inspector, CBI. Upon perusal of the complaint (Ex PW6/A) he set about, to lay a trap, to establish the veracity of the allegations made in the complaint (Ex PW6/A). Resultantly, a trap team was formed, and services of two independent witnesses was sought; one from the Oriental Insurance Company, Daryaganj and other from Punjab National Bank (in short „PNB‟), Daryaganj, Delhi. Sh Govind Ram Rawal (PW3) was summoned from PNB, while Mr Mahesh Mathur (PW4) was summoned from Oriental Insurance Company. Mr Mahesh Mathur (PW4), at the relevant point in time, was employed as the Development Officer. 6.1 Govind Ram Rawal (PW3) and Mahesh Mathur (PW4) were introduced to the complainant (PW6) and also shown the complaint (Ex PW6/A) filed by him. Both, Govind Ram Rawal (PW3) and Mahesh Mathur (PW4) were given an opportunity to interact with the complainant (PW6) so that they could satisfy Crl. A 113-2003 Page 3 of 30 themselves as regards the ingredients of the allegations made by the complainant (PW6) against the appellant. 6.2 Thereafter, B K Pradhan (PW8) who had been assigned the role of the Trap Laying Officer (in short „TLO‟) familiarized the trap team, which included the two independent witnesses Govind Ram Rawal (PW3) and Mahesh Mathur (PW4) as to how Phenolphthalein powder reacted when brought in contact with a solution of Sodium Carbonate powder and used in executing the trap. 6.3 In this regard the money arranged by the complainant (PW6), i.e., a sum of Rs 2000/- in the form of 20 currency notes of a denomination of Rs 100 each Exs PW-1 to PW-20 (hereinafter referred to as „GC notes‟) were treated with Phenolphthalein powder and handed over to the complainant (PW6), who kept them in the right side pocket of his Pajama. In order to ensure that the complainant (PW6) was not carrying anything else except the treated notes, a personal search of the complainant (PW6) was carried out. The complainant (PW6) was duly informed that he was to hand over the treated GC notes to the appellant, only on a specific demand being made by the appellant. Govind Ram Rawal (PW3) was instructed to act as a shadow witness so that he would be in a position to observe the events and overhear the conversation between the complainant (PW6) and the appellant during the execution of the trap. Govind Ram Rawal (PW3) was also instructed to signal the completion of the transaction (i.e., the making of the demand and its acceptance by the appellant) by scratching his head with his right hand. 7. A trap bag was also prepared which contained inter alia clean glass tumblers, seal, sealing material and Sodium Carbonate powder. A copy of the FIR and Rs 200/- was also kept in the said bag to meet incidental expenses. Before embarking upon the operation, the members of the trap team carried out a personal search, amongst themselves, with a view to ensure that no member of the trap team was carrying anything except their identity cards. Crl. A 113-2003 Page 4 of 30 7.1 The afore-mentioned events commencing with the lodgment of the complaint (Ex PW6/A), the preparatory steps taken before laying a trap and the instructions given to the members of the trap team including two independent witnesses were incorporated in the pre trap proceeding memo i.e., the handing over memo (Ex PW3/B). 7.2. Having thus prepared for the trap, the trap team proceeded to the Shri Ram Colony Police Post where the appellant was supposed to be located. The trap team parked their vehicles at a short distance from the police post so as to avoid undue attention. On disembarking from their vehicles, the complainant (PW6) and the shadow witness Govind Ram Rawal (PW3) were instructed to proceed to the police post where the appellant was located. 8. It is the case of the prosecution that the complainant (PW6) and the shadow witness Govind Ram Rawal (PW3) met the appellant, who demanded a bribe of Rs 2000/- whereupon, the complainant (PW6) handed over the treated GC notes to the appellant who accepted the same with his right hand, and after counting the same with both hands, put the treated GC notes in the right side pocket of his trouser . 8.1 At this juncture, the shadow witness Govind Ram Rawal (PW3) signalled to the other members of the trap team. On receiving signal from Govind Ram Rawal (PW3) the other members of the trap team converged at the spot where, the appellant alongwith Govind Ram Rawal (PW3) were present. 8.2 The appellant was apprehended. Care was taken that the appellant was held by his wrist. The appellant was confronted with the fact that he had demanded and accepted a bribe of Rs 2000/- from the complainant (PW6). The appellant evidently looked perplexed. 8.3 At the behest of B K Pradhan, TLO, (PW8), Mahesh Mathur (PW4) searched the appellant and recovered the treated GC notes from the right side pocket of the appellant. Immediately thereupon, serial numbers of the recovered GC notes were compared by Govind Ram Rawal (PW3) and Mahesh Mathur (PW4) with the numbers recorded in the Annexure A appended to the handing over Crl. A 113-2003 Page 5 of 30 memo (Ex PW3/B). A comparison of the serial numbers confirmed that the recovered GC notes were those which had been handed over to the complainant (PW6) for being given to the appellant on a specific demand made by him. 9. Consequently, the trap team prepared a colourless solution of Sodium Carbonate. The appellant was asked to dip his right hand fingers in the said solution. On the appellant‟s right hand fingers coming in contact with the colourless solution of Sodium Carbonate, it turned pink. The case was no different when the left hand fingers of the appellant were dipped in colourless solution of Sodium Carbonate. On coming in contact with the Sodium Carbonate solution, the colourless solution turned pink. A similar exercise was carried out with respect to the inner lining of the right side trouser pocket of the appellant. The inner lining of the right side trouser pocket was dipped in the colourless solution of Sodium Carbonate. Once Again, on the inner lining of the trouser pocket coming in contact with the Sodium Carbonate solution, it also turned pink. 9.1. Both the right hand wash as well as the trouser pocket wash of the appellant was transferred into two separate clean empty bottles each of which were sealed and covered with a cloth; with a label RWH and RPPW affixed to it respectively. As in the case of right hand wash, left hand wash was also transferred into a clean bottle, whereupon it was sealed and covered with a cloth and labeled as „LHWH‟. 10. The appellant was thereupon arrested. A personal search was conducted. The recoveries made consequent upon search, was recorded in the personal search memo being Ex PW3/F. The signatures of the appellant as well as the others were taken on the said memo. A rough site plan was also prepared by Inspector S K Bhati on instructions of the TLO B K Pradhan (PW8) being Ex PW8/C. The original police file pertaining to the case involving the complainant (PW6), which was being handled by the appellant was also seized. The proceedings as they transpired during the execution of the trap were reduced to writing and recorded in the recovery memo being Ex PW3/D. The washes of both the right and left hand as Crl. A 113-2003 Page 6 of 30 well as that of his right side trouser pocket were sent for chemical analysis to the Central Forensic Science Laboratory (in short „CFSL‟) for chemical examination. 11. Upon completion of the investigation by Inspector P K Sharma (PW7), the Investigating Officer in the case (in short „IO‟) took steps to obtain sanction for prosecution of the appellant. A request in that regard was made to the sanctioning authority i.e., the Deputy Commissioner of Police vide letter dated 14.12.1996 (Ex DW1/A) by the Superintendent of Police, ACB, CBI. Based on the evidence collected and other material on record including the statement of witnesses, sanction was sought for prosecution of the appellant. The sanctioning authority after due consideration of the material on record vide order dated 17.12.1996 (Ex PW2/A) granted sanction for prosecution of the appellant. 12. A chargesheet was prepared and filed in the trial court. The trial court on taking cognizance, summoned the appellant. After hearing the appellant, charges were framed vide order dated 06.01.1998 under the provisions of Section 7 and Section 13(2) read with Section 13(1)(d) of the P C Act. Since the appellant pleaded “not guilty”, the matter was put to trial. 13. During the course of the trial, the prosecution examined eight (8) witnesses, while the appellant apart from recording his statement under Section 313 of the Code examined one (1) witness being ASI Rajiv Wason (DW1). 14. The trial court after weighing the evidence on record and the arguments advanced by both parties came to a conclusion that the guilt of the appellant was established beyond reasonable doubt, and thus convicted the accused of the offences with which he was charged. 15. Before me on behalf of the appellant arguments were addressed by Mr K B Andley, Sr Advocate instructed by Mr M Shamikh, while on behalf of the State/CBI, submissions were advanced by Ms Sonia Mathur. 16. At the outset, I may notice that even though in the appeal several grounds have been raised, Mr Andley during the course of arguments has confined his submissions to the following: Crl. A 113-2003 Page 7 of 30 16.1 The complaint was motivated in as much as the complainant (PW6) himself was carrying on illegally, the business of generating electricity, which had resulted in causing pollution in the neighbourhood. On account of this illegal activity there was tension in the neighbourhood. 16.2 Furthermore, according to Mr Andley, the complainant (PW6) bore a grudge against the appellant in as much as he was aggrieved by the fact that in the criminal proceedings involving him and his neighbours, the appellant had arrested only the complainant (PW6) and his family members, though they were injured, and not his neighbours. 16.3 Mr Andley sought to buttress his submissions by submitting that on the day (i.e., 20.09.1996) when allegedly, the appellant is said to have demanded a bribe from the complainant (PW6), the appellant could have done very little, if at all, to jeopardize the interest of the complainant (PW6) since, the complainant (PW6) had already been released on bail on 18.09.1996, in the other criminal case involving his neighbours, which was handled by the appellant. Therefore, according to Mr Andley, the entire case, which had its genesis in a false complaint made by PW6, was triggered only to settle a score because of the grudge that the complainant (PW6) bore against the appellant. 16.4. Mr Andley went on to contend that in this case decidedly, the two independent witnesses i.e., Govind Ram Rawal (PW3) and Mahesh Mathur (PW4) had been declared hostile by the prosecution and hence, no reliance be placed on the testimony of the said witnesses. In support of his submissions reliance was placed on the judgment of the Supreme Court in Jagir Singh vs The State (Delhi): 1975 SCC (Cri) 129. It was thus contended that in these circumstances no reliance whatsoever can be placed on the testimony of Govind Ram Rawal (PW3) and Mahesh Mathur (PW4). 16.5. Mr Andley further submitted that in so far as recovery of the treated GC notes was concerned, there was complete lack of clarity in the case set up by the prosecution. While according to the TLO B K Pradhan (PW8) the treated GC notes Crl. A 113-2003 Page 8 of 30 were recovered by Mahesh Mathur (PW4) from the right side pocket of the appellant the testimony of Mahesh Mathur (PW4) seem to suggest to the contrary. Mr Andley in this regard drew my attention to the examination-in-chief of Mahesh Mathur (PW4) wherein he stated as follows:- “….On the directions of Inspector B K Pradhan accused Mohan Lal Walia (correctly identified) took out tainted Rs.2000/- from the right side pocket of his pant and kept the money on the table. I was directed to compare the numbers of those GC notes with the numbers noted down in the list PW3/A. On comparison numbers tallied…..” 16.6. Mr Andley submitted that it is quite evident that Mahesh Mathur (PW4), did not recover the money from the appellant as was alleged by the prosecution. The testimony of the witness by its very nature is akin to that of an interested party and hence cannot be relied upon. He has also laid stress on the fact that even though according to the complainant (PW6), the bribe had been allegedly demanded on 20.09.1996; the complainant for reasons best known to him, chose not to inform the Magistrate, when he was produced before him in the other criminal case, about the illegal demand of money being made by the appellant at the time of his production before the Magistrate on 21.09.1996. 16.7. Mr Andley thus contended that on account of the aforementioned factors, the benefit of doubt ought to be given to the appellant and the impugned judgment thus be set aside. 17. As against this, Ms Sonia Mathur in rebuttal made the following submissions: 17.1 The learned counsel at the very outset submitted that the basic premise of Mr Andley‟s submission that a witness once declared hostile his testimony has to be completely discarded, is flawed. To buttress her submissions she placed reliance on the following judgment:- Jodhraj Singh vs State of Rajasthan: (2007) 15 SCC 294; Gura Singh vs The State of Rajasthan: 2001 Crl.Law Journal 487. Crl. A 113-2003 Page 9 of 30 17.2 Ms Mathur further contended that in this particular case an initial demand was made by the appellant on 15.09.1996, when the complainant (PW6) was produced for remand in the court below. The demand of bribe was reiterated by the appellant on 20.09.1996. In respect of both these contentions my attention was drawn to the relevant paragraphs of the testimony of the complainant (PW6). 17.3 In so far as the acceptance of the bribe by the appellant was concerned, Ms Mathur relied upon the testimony of the shadow witness Govind Ram (PW3) apart from that of the other witnesses Purshottam Singh (PW6) and B K Pradhan (PW8). The relevant portion of the testimony of Purshottam Singh (PW6) on which reliance was placed for the sake of convenience is extracted hereinbelow:- “……When we entered the room of accused in police post, he was sitting on a chair. On entering the office of room, I wished him “RAM RAM SAHAB”. Accused also replied “RAM RAM”. Then I said “SAHAB KAL JO BAAT HUI THI PAISE LE AYA HUN”. On this accused got up from his chair and signaled me to come out of his office. Then I followed him outside his office room. After coming out of the room, accused Mohan Lal Walia made a gesture of demand with his hand. On this I took out tainted Rs. 2000/- from the pocket of my pajama and extended towards accused. He accepted the money in his right hand and kept it in the right side pocket of his pant. I said “SAHAB GIN LO”. And on this accused replied “KOI GINNE KI CHIJE HOTI HAIN”. Thereafter, on my request, accused took out tainted money from the right pocket of his pant and counted it with his hands and again kept it in the said pocket…..” 17.4 As regards the contention of the Learned counsel for the appellant that there was a contradiction with regard to the aspect of recovery of the treated GC notes from the appellant, Ms Mathur drew my attention to the cross-examination of Mahesh Mathur (PW4) by the prosecutor wherein he is stated to have said “….It is possible that your suggestion that I recovered tainted money from the pocket of the pant of the accused may be correct….”. Ms Mathur argued that given the period of time which had elapsed between the execution of the trap and the date on which testimony of the witness was recorded, a slight variation between what was stated in the examination-in-chief by Mahesh Mathur (PW4) and that which was stated by the other witness B K Pradhan (PW8) would not be material when, Crl. A 113-2003 Page 10 of 30 looked at in the light of PW4‟s testimony in the cross-examination by the prosecution which was done to really rejog PW4‟s memory. 17.5 Ms Mathur submitted that in any case even apart from the testimony of Mahesh Mathur (PW4), the recovery of the treated notes from the person of the appellant was clearly established if, regard is had to the testimonies of Purshottam Singh (PW6) and B K Pradhan (PW8). 17.6 Ms Mathur submitted that the court could rely upon even the uncorroborated testimony of the TLO if it was otherwise credible to convict an accused in a particular case. Ms Mathur submitted that in this case, however, the testimony of the TLO was corroborated and hence, the appellant‟s conviction was in any event in order. 17.7 As regards the submission of the learned counsel for the appellant that the conduct of the complainant (PW6) was wholly unnatural in as much as he did not raise the issue of illegal demand being made of him by the appellant when he was produced in Court in the criminal proceedings pending against him under Section 308 and other relevant sections of the IPC on 15.09.1996; Ms Mathur sought to place reliance on the observations of the trial court in paragraph 20 of the impugned judgment. Ms Mathur further contended that in this case since recovery stood proved the Court could draw a statutory presumption under Section 20 of the P C Act that the appellant was guilty of the offence charged. 17.8 In this connection Ms Mathur also relied upon the response of the appellant to the question put to the appellant during the course of his statement being recorded under Section 313 of the Code, whereby he had been asked as to what was his say with regard to the evidence against him that: B K Pradhan (PW8) had asked Mahesh Mathur (PW4) to search him, and the search had resulted in recovery of the tainted money i.e., Rs 2000/- from the right side pocket of his trouser. 17.9 Since the appellant had given a laconic reply to the effect : “it is incorrect”; Ms Mathur contended that the failure to furnish an explanation would be an Crl. A 113-2003 Page 11 of 30 additional circumstance which the Court would take into account in ascertaining the guilt of the appellant. In support of her submissions Ms Mathur relied upon the following Judgments:- Balasubramanian vs State through Inspector of Police: (2010) 9 SCC 20; Madhukarrao Bhaskarrao Joshi vs State of Maharashtra: (2000) 8SCC 571 paras 9, 11, 12 Page….; M Narsinga Rao vs State of Andhra Pradesh: (2001) 1 SCC 691 paras 13 to 15, 21, 22 at pages….; B Noha s State of Kerala & Anr. (2006) 12 SCC 277 paras 10 and 11 at Pages…. 17.10 In rejoinder, the learned counsel for the appellant apart from reiterating what was said in the opening for the first time argued that the sanction was not in accordance with law. The short submission made in this regard was that, the sanctioning authority while according sanction did not have the opportunity to pursue the statement of the witnesses recorded under Section 161 of the Code and other vital documents. For this purpose, reliance was placed on the testimony of ASI Rajiv Wason (DW1). Thus, according to the learned counsel for the appellant, the sanction was vitiated as the authority concerned did not have the relevant material before it. 17.11 Ms Mathur, in rebuttal, relied upon the testimony of Kishan Kumar (PW2) and the observations made by the trial court in paragraphs 50 to 54 of the impugned judgment to meet the aforesaid submission made on behalf of the appellant. 18. I have heard the learned counsel for the parties as well as perused the evidence on record. Before I proceed further, it would be relevant to refer to the material parts of the testimony of the witnesses on record so as to ascertain as to whether the prosecution had been able to prove its case beyond reasonable doubt. 18.1. In this regard, first in line, is the testimony of the complainant (PW6). PW6 in his examination-in-chief briefly states as follows: On 13.09.1996 he got involved in a quarrel with his neighbours: Sant Lal, Jia Lal, Kunwar Pal and Ram Babu and others, and an altercation followed, in which, the Complainant (PW6) and his son Dharmender Singh received injuries. Resultantly, a criminal case was Crl. A 113-2003 Page 12 of 30 registered against him and his family members, even while the complainant (PW6) himself also filed, a