Crl. Rev.P. Nos.322 & 272 of 2008 Page 1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL APPEAL NOS. 82 & 75 OF 2002 Reserved on : 31st August, 2010. % Date of Decision: 2nd November, 2010. RAM CHANDER SINGH ... Appellant in 82/2002. PREM DUTT SHARMA ...Appellant in 75/2002. Through Mr. Ajay Burman, Mr. Rajesh Samanotra and Mr. Prabhat K. Singh, Advocates. Versus CBI …..Respondent Through Ms. Sonia Mathur and Mr. Sushil Kr. Dubey, Advocates. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in the Digest ? YES SANJIV KHANNA, J.: 1. These two connected appeals assail the judgment dated 22nd January, 2002 convicting the appellants Ram Chander and Prem Dutt Sharma under Section 120-B of the Indian Penal Code (hereinafter referred to as IPC, for short) read with Sections 7, 13 (2) and 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the PC Act, for short) and also for substantive offences under Section 7 and 13(2) read with Section 13(1)(d) of the PC Act. By order on sentence dated 30th January, 2002, the appellants Ram Chander and Prem Dutt Sharma have been sentenced to simple imprisonment for a period of one year for the offences punishable under Sections 120-B IPC read with Sections 7 and 13(2) read with Section 13(1)(d) of the PC Act Crl. Rev.P. Nos.322 & 272 of 2008 Page 2 and pay fine of Rs. 2,000/- each and in default of payment of fine, simple imprisonment for a period of 15 days. For the offences punishable under Section 7 of the PC Act the appellants have been sentenced to undergo simple imprisonment for a period of two years and fine of Rs.3,000/- and in default of payment of fine suffer simple imprisonment of one month. For the offences punishable under Section 13(2) read with Section 13(1)(d) of the PC Act the appellants have been sentenced to undergo simple imprisonment of three years with fine of Rs. 5,000/- and in default of payment of fine, undergo simple imprisonment of two months. 2. The allegations against the appellants are that they had demanded bribe from the complainant Sallan and the appellant Ram Chander was caught after he had accepted bribe of Rs.5,000/- pursuant to a trap, which was laid by the Central Bureau of Investigation (hereinafter referred to as CBI, for short). Facts of the case have been set out in detail in paragraph 2 to 6 of the impugned judgment, which for the sake of convenience are reproduced below:- “2. The case of the prosecution, precisely stated is that Sh. Sallan S/o. Sh. Jamaluddin (hereinafter referred to as the complainant), R/o Jhuggi No.30, Nagla Manchi Devi Nagar, Ring Road, New Delhi, lodged a complaint with the CBI alleging that on the intervening night between 28-29.3.94, he was lifted by S/Sh. Ram Babu, ASI, Prem Dutt Sharma, HC, Ram Chander Constable and other staff of P.S. Gokulpuri, in Police Vehicle from his jhuggi No.30 Nangla Manchi, Devi Nagar, Ring Road, New Delhi and taken to P.S. Gokal Puri where he was detained in the rook (sic room) of HC Prem Dutt Sharma. On 29.3.94 at about 5.45 PM, he was taken to the shop of Sh. Ramesh Verma, Kabbadi, located at Jangpura, Bhogal Road by the said police party. On being objected to by Sh. Ramesh Verma, the police party had taken him to the police post Jangpura and thereafter, he and Ramesh Verma, were taken to the shop of Sh. Allahbux Kabadi, Nangla Manchi Devi Nagar, Ring Road and the said Allahbux was also lifted by Crl. Rev.P. Nos.322 & 272 of 2008 Page 3 the said police party. Then all were taken to P.S. Gokulpuri. Sh. Ramesh Verma and Allahbux were, however, released on 29.3.94 at about 9.30 PM. 3. It is further stated that the complainant was released in the early hours of 30.3.94 by the said accused persons, who directed him to pay Rs.5,000/- by 4 PM on 30.3.94 i.e., the same day. The complainant met accused Prem Dutt Sharma and Ram Chander in P.S. Gokulpuri and expressed inability for arranging bribe amount whereupon both the accused told the complainant that they would come tomorrow, i.e, on 31.3.94 between 4 to 5 PM at the residence of his employer Sallaudin where the complainant was staying, to collect the bribe and also to meet with the said employer Sallaudin. Since the complainant did not want to pay the bribe, he lodged the complaint against the accused persons and the case was registered by the orders of SP who entrusted investigation to Sh. K.S. Joshi, Dy. SP for laying trap against the accused persons. 4. Accordingly, a trap party comprising of two independent witnesses namely, S/Sh. Uday Bhan Singh and Inder Singh, both working as Regular Mazdoors with MTNL (Vig.), K.L. Bhawan, New Delhi and other officers of CBI/ACB, had been constituted. The members of the trap party assembled in the CBI office and after satisfying themselves about the genuineness of the complaint dtd. 31.3.94, the complainant produced Rs.5000/- in the denomination of Rs.50/- GC notes of Rs.100/- each which were treated with Phenolphthalein powder and the demonstration of reaction between Phenolphthalein powder and Sodium Carbonate was performed. Sh. Inder Singh was directed to act as shadow witness and to give signal by scratching his head with his hands, to the trap party after the transaction was completed. The complainant was directed to pass on the treated GC notes of Rs.5000/- to either of the accused persons on the specific demand of the bribe only. A handing over memo incorporating the numbers of Crl. Rev.P. Nos.322 & 272 of 2008 Page 4 treated GC notes and all proceedings was prepared at the CBI office which was signed by all the members of the trap party. 5. At about 3:45 PM, the trap party left CBI office and reached near the house of Sh. Sallaudin at Kachi Colony, Rajeev Nagar, Khajuri Khas, Delhi at 4:20 PM on 31.3.94. 6. Further, the complainant along with shadow witness went inside the house of Sh. Sallaudin, employer of the complainant and at about 5:20 PM, Sh. Ram Chander reached and parked scooter no. DL-5SC 6321, outside the house of Sh. Sallaudin and went inside the house. He allegedly demanded the bribe amount from the complainant. At about 5:40 PM, Ram Chander, came out of the house, along with complainant, witness and Sh. Sallaudin, rode his scooter, which was parked in front side and directed the complainant to put the bribe amount in his left upper shirt pocket. The complainant took out the bribe amount from his pocket and kept the same in the shirt left upper pocket of accused Ram Chander. At about 5:45 PM, the shadow witness gave pre-appointed signal. While accused Ram Chander was trying to start the scooter, he was caught by left and right wrists by Inspectors Sh. R.S. Tokas and Kishore Kumar, both members of the trap team. The tainted money was recovered from the left upper shirt pocket of accused Ram Chander, inside the house of Sh. Sallaudin, where the accused was taken for personal search, immediately. The numbers of the GC notes were found tallying with the numbers mentioned in the handing over memo. Washes of left & right hands and left upper-shirt-pocket or accused Ram Chander, were taken respectively and these washes were transferred in the separate glass bottles, sealed with CBI seal and signed by both public witnesses. A site plan of place of occurrence was prepared. Seal after use was handed over to independent witness Sh. Uday Bhan Singh, for safe custody. A recovery memo incorporating all the proceedings was Crl. Rev.P. Nos.322 & 272 of 2008 Page 5 prepared and signed by witnesses at the spot. Personal search of the accused was also taken and the scooter No.DL-55C- 6321(sic), was seized during investigation.” 3. Learned counsel for the appellants has submitted that the learned trial court had erred in relying upon statement of Sallan (PW-2), the complainant, which is contradictory and, therefore, the said witness is not reliable. It was submitted that Sallan (PW-2) was an accomplice and his statement should not be relied upon. It was submitted that the independent witnesses namely, Inder Singh (PW-5) and Uday Bhan (PW-10) have not supported the prosecution case and even Sallauddin (PW-6), who was the employer of Sallan (PW-2) has not supported the prosecution version. 4. Even though there may be variance, exaggeration, embellishments or inconsistencies in the statement of the witnesses, rejection in entirety is not justified unless it affects the core of the prosecution case. It has to be examined whether established material and evidence assists the court to act in a reasonable manner to establish the existence of the facts alleged by the prosecution. Whether the said evidence would induce a reasonable man to reach a particular conclusion? The probative value of the proved circumstances must be considered with due regard to ordinary human conduct and on a pragmatic and realistic approach. The entire evidence in totality has to be taken into consideration. Evidence is not to be considered in isolation but total cumulative effect of all proved circumstances has to be considered. If the evidence on the whole is found credible after careful analysis and all the proved circumstances each of which reinforces the conclusion of quilt, the said evidence may be relied upon to form the basis of conviction. The Supreme Court in Munshi Prasad vs. State of Bihar, (2002) 1 SCC 351 has observed:- “10. ……………Incidentally, be it noted that while appreciating the evidence of a Crl. Rev.P. Nos.322 & 272 of 2008 Page 6 witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of, and we do not see any justification to pass a contra-note, as well, on perusal of the evidence on record. In this context reference may be made to two decisions of this Court. The first being State of U.P. v. M.K. Anthony as also a later one in the case of Leela Ram v. State of Haryana. Needless to record that difference in some minor detail, which does not otherwise affect the core of the prosecution case, may be there but that by itself would not prompt the court to reject the evidence on minor variations and discrepancies. In Leela Ram this Court observed in para 10 of the Report: “10. * * * „24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.‟ This Court further observed: „25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for Crl. Rev.P. Nos.322 & 272 of 2008 Page 7 confronting him during cross- examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below: “155. Impeaching credit of witness.—The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him— (1)-(2) * * * (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;” 26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be “contradicted” would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross- examiner to use any former statement of the witness, but it cautions that if it is intended to “contradict” the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross- examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to “contradict” the witness. 27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to Crl. Rev.P. Nos.322 & 272 of 2008 Page 8 contradict that witness (vide Tahsildar Singh v. State of U.P.).‟ ” The issue, therefore, is whether the evidence available on record is otherwise trustworthy and an acceptable piece of evidence: in the contextual facts the answer is in the affirmative and both the trial court and the High Court have also considered the same to be so.………..” 5. Reference may also be made to the Supreme Court in M. Narsinga Rao Vs. State of A.P. (2001) 1 SCC 691 wherein it was observed:- “15. The word “proof” need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word “proved” in the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. observed like this: “Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion.” 6. Similarly in State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73, it was observed : “15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of Crl. Rev.P. Nos.322 & 272 of 2008 Page 9 proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of Indian Evidence Act. Although, the court‟s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter. 16. In Gurbachan Singh v. Satpal Singh Mr Justice Sabyasachi Mukharji (as he then was) has very rightly indicated that the conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.” 7. The statement of Sallan (PW-2) is very detailed and he has narrated and supported the prosecution case. As noticed below Sallan‟s statement has a few discrepancies but it will be wrong to reject and discard his entire testimony. We have to see and examine the extent to which his statement can be relied upon and how and to what extent is his statement corroborated by other witnesses and material. It is not as if Crl. Rev.P. Nos.322 & 272 of 2008 Page 10 the statement of Sallan (PW-2) is entirely unreliable. It is true the Inder Singh (PW-5) and Uday Bhan Singh (PW-10) were declared hostile, but they have partially proved and corroborated a part of the prosecution case and supported the statement made by Sallan (PW-2). Similar is the position with regard to the statement of Sallaudin (PW-6). We also have the evidence of the CBI officers. The entire incident has to be dealt with and examined in three episodes/periods viz the period between the picking up of the complainant Sallan and the making of the complaint, the period between the registration of the complaint and laying of trap and lastly the trap, i.e. the episode where the appellant was arrested by the TLO pursuant to the trap, in order to see to whether the statement of Sallan (PW-2) is reliable and is corroborated on material aspects. 8. The fact that Sallan (PW-2) was detained and taken to the police station Gokul Puri on the night intervening 28-29th March, 1994 as stated by Sallan (PW-2) stands fortified by DD entry No.23A dated 28-29th March, 1994 marked Ex.PW- 8/A. The said DD entry was made at about 1.50 am at night. The said DD entry records that information was received through wireless that police had picked upon two persons from Nangal Manchi Devi Nagar, Ring Road and PW-8, ASI Kartar Chand came to know upon enquiry that 5-6 persons had gone in a police vehicle and picked up one Sallan (PW-2) and had taken him away with them. Nobody had noted the number of the police vehicle and no progress could be made. 9. Abrar (PW-3) has stated that he and Sallan (PW-2) were sleeping in the shop of Sallauddin Kabari at Nangla Market, Devi Nagar, New Delhi and that they were taken to the police station at about 1-1.30 am in the night. He has stated that he was allowed to go at 4 pm but Sallan (PW-2) was detained in the police station and came back in the evening the next day. 10. Sallan (PW-2) has stated that on 28th March, 1994 during the night he was picked up by police and taken to the Crl. Rev.P. Nos.322 & 272 of 2008 Page 11 police station Gokul Puri. Sallan (PW-2) has stated that in the morning he was taken to the kabadi shop of one Shabir Khan but he was not there and he was brought back to the police station. Thereafter he was taken to the shop of one Ramesh at Bhogal, Jangpura. Ramesh insisted that he should be taken to the police chowki, at Jangpura. After some discussion with the police at police chowki he along with Ramesh was taken to the shop of Allahbux situated at Nangla Manchi Devi Nagar, Ring Road. Allahbux and Ramesh were let off from the police station at about 10 pm on 29th March, 1994. The aforesaid statement of PW-2, Sallan (PW-2) is affirmed by the statement of PW-9, Allahbux. He has stated that on one evening in March 1994, 4-5 police officials came to his shop and arrested him. He was interrogated about stolen property but after one or two hours he was released. The said witness was declared hostile and was cross-examined by the Public Prosecutor, CBI. However, the fact that he was detained and taken to the police station was not denied by him. Ramesh Chander (PW-7) is more forthright as he has stated that on 29th March, 1994, a police team comprising of 6-7 persons came to his shop with Sallan (PW-2) in their custody. He was informed that Sallan (PW-2) had told police that he was selling stolen goods to Ramesh Chander (PW-7). He refused to accompany them and contacted police chowki of the area on telephone. Chowki Incharge Mr. Rajesh Sharma asked him to accompany police officers. He has stated that he was taken to the shops of Sallauddin and Allahbux. Allahbux was also picked up and taken to the police station. Both of them were made to sit there and were released after he had paid Rs.4,000/- to the policemen. However, he did not make any complaint against these police officials. He could not identify the police officials in the court and had stated that the two appellants might be among the police officials. 11. Sallan (PW-2) has further stated that on the night intervening 29-30th March, 1994, he was released/let go at Crl. Rev.P. Nos.322 & 272 of 2008 Page 12 about 2.30 am. At the time of his release the two appellants and ASI Ram Babu had directed him to bring Rs.5,000/- on 30th March, 1994 at 4 pm to police station Gokul Puri. Thereafter he met Sallauddin and informed him about the bribe demanded. Sallauddin was not prepared to give bribe and stated that he had already lodged a complaint at the police station. Sallan (PW-2) had stated that he met the two appellants and ASI Ram Babu and told them he could not arrange the money and the same would be arranged the next day. Appellant Ram Chander stated that he would accept the money at the residence of Sallauddin. It was decided that Sallan (PW-2) would reach the house of Sallauddin at 5 pm and they agreed to take the money at the residence of Sallauddin. Sallan (PW-2) wrote the complaint marked Ex.PW-2/A on the next day i.e. 31st March, 1994 and went to the office of the CBI. He had also taken Rs.5,000/- with him. 12. Learned counsel for the appellants submitted that there is discrepancy as to who had written the complaint (Ex.PW-2/A). With regard to preparation of complaint (Ex.PW- 2/A), Sallan (PW-2) has admitted his signatures on the said complaint. In his examination-in-chief on 28th November, 1995, Sallan