CRL.A./151/2008 of KANTI PRASAD TYAGI Vs STATE OF DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHICRL.A. 151 of 2008

KANTI PRASAD TYAGI..... AppellantThrough: Mr. Ramesh Gupta, Senior Advocatewith Mr. G.C. Tyagi with Mr. Kailash Pande,Mr. Balendra Tiwari, Mr. Inderajeet Mishra,Advocates.

versus

STATE OF DELHI

..... Respondent

Through: Ms. Isha Khanna, APP.

CORAM: JUSTICE S. MURALIDHAR

O R R03.032014

1. This appeal by Kanti Prasad Tyagi is directed against judgment dated13[th]February 2008 passed by the learned Special Judge, Delhi in ComplaintCase No. 49 of 2002 convicting him of the offences under Sections 7 and13 (1)(d) read with Section 13 (1)(2) of the Prevention of Corruption Act,1988 (PC Act). It is also against the order of sentence dated 13[th]February2008 passed by the Special Judge sentencing the Appellant to undergorigorous imprisonment (RI) for period of two years and fine of Rs. 3,000for the offence under Section 7 of the PC Act and in default of payment offine, to undergo SI for period of two months and further to undergo RI fora period two years and fine of Rs. 3,000 for the offence under Section13(2) of the PC Act and in default of payment of fine, to undergo furtherSI for period of two months.

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2. The case of the prosecution was that one Raj Kumar @ Babloo, theComplainant (PW-6) was running shop of repairing puncture of tyre andtubes under the name and style of Vivek Tyres near Kirti Nanak FillingStation, AP Block, Shalimar Bagh. It is stated that around 10 days prior to17[th]August 2001, Constable Ranbir Singh, the co-accused took his motor-cycle to the shop of PW-6 for repairing the puncture.When PW-6informed Constable Ranbir Singh that the valve of his tube had beenbroken, Constable Ranbir Singh is alleged to have told the Complainant thatit is he who had broken the valve and had to replace the tube. PW-6 undercompulsion stated to have replaced the tube. It is alleged that ConstableRanbir Singh was annoyed with PW-6 and on 10[th]August 2001, took himto the police station and there Head Constable Yogender Singh informedPW-6 that case has been lodged against him and asked him to arrange fora surety and Rs. 5,000. According to the PW-6, after much persuasion andafter accepting Rs. 3,000 as bribe Constable Ranbir Singh and HCYogender released him. On that very date, Constable Ranbir Singh askedPW-6 to pay Rs. 5000 per month failing which he would be implicated insome other case. After much persuasion Constable Ranbir Singh agreed toaccept Rs. 3,000 as bribe. However, PW-6 expressed his inability to pay theamount in one go and thus Constable Ranbir Singh is alleged to have agreedto accept the bribe amount in two instalments of Rs.1,500 each. The firstinstalment was to be paid at around 7.00 p.m. on 17[th]August 2001.

3. The case of the prosecution was that PW-6 was against giving bribe andtherefore, went to Anti Corruption Branch (ACB) on 17[th]August 2001 andhis complaint (Ex. PW 5/A) was recorded.PW-6 handed over three

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government currency (GC) notes of Rs. 500 each to Inspector N.S. Minhas,the Raid Officer (PW-7). The GC notes were treated with phenolphthaleinand demonstration was given to the panch witness, S.M.A. Jafri, JuniorEngineer (Civil), Irrigation Flood Control (PW-5). pre-raid report wasprepared (Ex. PW-5/B).

4. At around 4.20 pm on 17[th]August 2001, Raid Officer (PW-7), theComplainant (PW-6), panch witness (PW-5), Inspector M.S. Sangha (PW-9), the Investigating Officer (IO) and three to four members of the raidingparty along with the driver left the ACB for Nanak Kriti Filling Station,Shalimar Bagh in government vehicle. Inspector Sangha remained in thegovernment vehicle whereas PWs 5 and 6 went towards the shop.

5. The Appellant who was Constable attached to Police Station ShalimarBagh is alleged to have come to the tyre puncture shop of PW-6 at around5.35 p.m. on two wheeler scooter. There was one pillion rider in plainclothes whose name was later heard as Sheoraj Singh. PW-7 stated to havereceived predetermined signal from PW-5. Thereupon PW-7 along withthe raiding party rushed to the spot. PW-5 is stated to have informed PW-7that the Appellant demanded bribe amount by ‘gesture and words’. PW-6had inquired from the Appellant about Constable Ranbir Singh and theAppellant is supposed to have told PW-6 that he had been sent by RanbirSingh. Thereupon PW-6 is stated to have given the treated GC notes to theAppellant which were accepted by him with his right hand and kept in theright side pocket of his shirt of the police uniform which he was wearing.

6. PW-7 is stated to have challenged the Appellant about taking Rs. 1500from PW-6 and offered to allow the Appellant to search him before theAppellant himself was searched. The Appellant is supposed to havedeclined to do so and became perplexed. On instructions of PW-5, PW-7 isstated to have recovered the bribe amount of Rs. 1500 from the right pocketof the shirt of the Appellant.The serial numbers of the said GC notestallied with the notes of the pre-raid report. The right hand wash of theaccused was taken separately in colourless solution of sodium carbonatewhich turned pink. The wash of the right pocket of the shirt was also takenand it turned pink. The solutions were then sealed in empty bottles. Theshirt of the Appellant was converted into pulanda with the seal of NSMand was taken into possession vide memo (Ex. PW5/D). The two wheelerscooter on which the Appellant came was also taken into possession.

7. After completion of the investigation, the charge sheet was filed. Theinvestigation was transferred to Inspector H. N. Meena (PW-8). The FSLreport (Ex. PW8/A) was obtained. The sanction to prosecute the Appellantwas also obtained (Ex. PW1/A and Ex. PW1/B). The charges were framedagainst the accused for the offences under Sections 7 and 13 (1)(d) of thePC Act read with Section 120-B IPC.

8. Prosecution examined nine witnesses. The most crucial witness was theComplainant himself (PW-6). However, PW-6 turned hostile. In the firstplace, he stated that his name was not ‘Raj Kumar’. It was his brother whowas Raj Kumar. His brother had taken the shop and given it to PW-6 forbeing run. Since everybody started addressing him as ‘Raj Kumar’ he

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adopted that name. After identifying his signatures on the sealed bottlescontaining the hand wash, PW-6 stated that he was unwell. This was on 1[st]June 2007. He was thereafter recalled for further examination-in-chief on6[th]July 2007. He failed to identify Constable Ranbir Singh. He stated thatConstable Ranbir Singh, Gian Chand and HC Yogender had demanded thebribe of Rs. 6000 and that they agreed to accept Rs. 3,000 in twoinstalments. He confirmed that he had lodged complaint with ACB on 17[th]August 2001 at about 2 p.m. He also confirmed the pre-raid proceedings.He identified the Appellant as having come to the shop on two wheelerscooter. He then stated as under:

“I asked one boy who was working with me to inflate the tyre of thescooter of accused Kanti Prasad. The panch witness insisted me togive those treated GC notes to Kanti Prasad by stating that RanbirSingh had not come and if I would not give the money to someonethe officials of Anti Corruption Branch would implicate me. He kepton insisting me to give the money to Kanti Prasad but in themeantime panch witness gave the signal and the raiding teammembers rushed there and started beating accused Kanti Prasad.Many persons gathered there and I became perplexed.Thereaftersome proceedings regarding hand washes and putting of the clothesof Kanti Prasad took place and I was asked to sign some documents.No money was kept in the pocket of accused Kanti Prasad even thenhe was taken by the raiding team. I had signed the documents and thepaper slip under the fear of police officers of Anti Corruption Branch.Accused Kanti Prasad was arrested in my presence. I do not

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remember if the personal search of accused Kanti Prasad was takenas I was in panic.”

9. At the above stage, the Additional Public Prosecutor (APP) with thepermission of the trial Court began to cross-examine PW-6. PW-6 deniedhis previous statement given to the police. He further stated as under:

“It is correct that accused Kanti Prasad had come at my shop on hisscooter in police uniform. I did not tell the police that accused KantiPrasad called me by gesture and asked me ‘Bohni Karwa’ and by thegesture of his hand he demanded money on which I inquired fromhim about Ranbir Singh and accused Kanti Prasad told me thatRanbir Singh had sent him and thereafter I took out those treated GCnotes from my pocket and gave in the right hand of accused KantiPrasad who kept the same in the right pocket of his shirt (policeuniform). (Confronted with portion to of his statement Ex. PW-6/A and the contents of post raid report where it is so recorded.”

10. The next prosecution witness was the panch witness (PW-5).In hisexamination-in-chief he stated that the Appellant had come at around 5.35p.m. to the tyre puncture shop of PW-6 “and demanded the money from thecomplainant by words and also by gestures”. He confirmed that the treatedGC notes had been recovered on the instructions of PW-7 by him from theright side shirt of the Appellant and that the right hand wash of theAppellant turned pink.In his cross-examination on behalf of the co-accused (Ranbir Singh), he stated “I have been panch witness in two morecases also with Anti Corruption Branch”. He, however, stated that “I have

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never seen accused Ranbir nor I can identify him”.In his cross-examination on behalf of the Appellant, he stated as under:

“In the year of 1996 I had been deputed with Anti Corruption Branchas panch witness first time.I have been deputed 10/12 times aspanch witness with Anti Corruption Branch. I had accompanied theAnti Corruption Branch officials four times in raids.Today I amdeposing first time in the Court. I have not yet been examined in anyother case in which I was the panch witness.”

11.In his examination-in-chief, PW-5 stated that the Complainant didinquire from the Appellant about Constable Ranbir Singh and the Appellanttold PW-6 that “Ranbir Singh had sent him”.In his cross-examination, hestated as under:

“It is wrong to suggest that accused Kanti Prasad was passingthrough the shop of the complainant and the complainant had calledaccused Kanti Prasad and asked him while giving money to him thathe should give the same to Ranbir Singh.It is also incorrect thataccused Kanti Prasad refused to accept the money and asked thecomplainant to give the money to the concerned person butcomplainant insisted and tried to thrust the money in his pocket of theshirt which accused Kanti wanted to return the same to thecomplainantbutatoncetheraidingpartycamethereandapprehended the accused.”

12. PW-7 who was the Raid Officer, even according to the prosecution wasnot present at the time when the bribe amount was allegedly given to the

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Appellant by PW-6.He could only speak for what happened after hearrived at the spot. Therefore, he was not witness either to the demand orthe giving of the bribe amount.

13. At the outset, it must be noticed that on 6[th]February 2008, the trialCourt passed an order holding that there was no incriminating evidenceagainst the accused Ranbir Singh. separate judgment was passed on thatdate acquitting him. Against the said judgment, no appeal has been filed bythe State and said judgment has, therefore, become final.

14. From that stage onwards, the case proceeded only against the Appellantherein. By the impugned judgment, the trial Court held the Appellant guiltyof the offences under Section 7 and 13 (1)(d) read with 13 (2) of the PCAct. By the order of sentence dated 13[th]February 2008 sentenced him twoyears RI and fine of Rs. 3000 on each count and in default to undergo SIfor period of two months.

15. An analysis of the judgment of the trial Court revealed that it proceededon the basis that merely because PW-6 had turned hostile did not mean thatthe entire case of the prosecution should fail. It was held that the panchwitness (PW-5) had fully supported the case of the prosecution. Thestatements had been corroborated by the Raid Officer (PW-7). It was heldthat from the evidence of PW-5 it had been proved that the bribe wasdemanded by Appellant from PW-6 by ‘words and gestures’ and the treatedGC notes were recovered from his possession.Accordingly, it was heldthat the presumption under Section 20 of the PC Act got attracted. Also

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simply because PW-6 gave wrong name did not mean that the entireprosecution case should fail.

16. This Court has heard the submissions of Mr. Ramesh Gupta, learnedSenior counsel for the Appellant and Ms. Isha Khanna, the learned APP.

17. Mr. Ramesh Gupta, first submitted that with the co-accused ConstableRanbir Singh being acquitted, the case against the Appellant also had to failsince the only allegation against him was that he had accepted the bribeamount on behalf of Constable Ranbir Singh.Merely because three GCnotes were recovered from the Appellant, was not sufficient to bring homethe charge under Sections 7 and 13 (1)(d) read with 13 (1)(2) of the PC Act.Once the Complainant (PW-6) turned hostile, it could not be said that therewas any substantive evidence as regards the taking of the bribe by theAppellant. Mr. Gupta referred to the decisions in State of Kerala v. C.P.Rao (2011) 6 SCC 450; C.M. Girish Babu v. CBI 2009 II AD (Cr.) (S.C.)591; Banarsi Dass v. State of Haryana 2010 [3] JCC 1842 and Suraj Malv. State (Delhi Administration) (1979) 4 SCC 725. Mr. Gupta also referredto the decision in G. V. Nanjundiah v. State (Delhi Admn.) 1988 SCC(Cri) 77 to urge that the evidence of PW-5 panch witness ought not tohave been relied upon since he was stock witness for the prosecution.

18. In reply, Ms. Isha Khanna, the learned APP supported the impugnedjudgment of the trial Court by relying on the evidence of PW-5 and PW-7.She submitted that both these witnesses corroborated each other as regardsthe raid proceedings. The fact that the PW-5 spoke about the Appellant

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taking the bribe by words and gestures and that this was followed by therecovery of the tainted GC notes from the Appellant was sufficient to attractthe presumption under Section 20 of the PC Act.

19. In the first place, it must be noted that the charge framed against theAppellant was that he and Constable Ranbir Singh had entered into acriminal conspiracy to extract illegal gratification from the Complainant toallow him to run his tyre puncture shop. The charge was also framedagainst Appellant as well as Constable Ranbir Singh under Section 120-BIPC.This charge straightway failed with Constable Ranbir Singh beingacquitted by the trial Court by the separate judgment dated 6[th]February2008 which was not appealed against by the State.

20. The second charge against the Appellant was that in pursuance of thesaid conspiracy Constable Ranbir Singh had demanded Rs. 3000 from theComplainant on 17[th]August 2001. This part of the charge obviously failed.The further part of this charge is that “you accused Kanti Prasad Tyagiobtained Rs. 1500/- from the Complainant for yourself and on behalf of theco-accused, and thereby both of you committed an offence punishableunder Section 7 of the Prevention of Corruption Act, 1988”.The thirdcharge is also that “in pursuance of the afore-said conspiracy between youtwo being public servant employed as aforesaid, you accused Kanti PrasadTyagi obtained Rs. 1500/- from the above named complainant for yourselfand on behalf of the co-accused as pecuniary advantage by corrupt or illegalmeans” or otherwise by abusing your position as such public servant andthereby both of you committed an offence of criminal misconduct as

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specified under section 13(1)(d) and punishable under Section 13(2) of thePrevention of Corruption Act, 1988”.

21. perusal of the charge also shows that the charge against the twoaccusedwere in fact inseparable. Theoffences,according to theprosecution, stemmed from the conspiracy between the two accused. Thecase against the Appellant was that he had accepted the bribe amount on hisown behalf as well as on behalf of the co-accused Ranbir Singh. There wasno charge against the Appellant for demanding or accepting separately thebribe amount.

22. In the considered view of the Court, once Constable Ranbir Singh stoodacquitted and that acquittal became final the entire prosecution case asprojected before the trial Court and on the basis of which the charges wereframed, should have failed against the Appellant as well. Once it was clearthat Constable Ranbir Singh was not involved in the offence, the questionof the Appellant acting in conspiracy with Constable Ranbir Singh andpursuant thereto accepting the bribe money on behalf of Constable RanbirSingh did not arise. The charge against the Appellant being inseparablefrom Constable Ranbir Singh meant that the Appellant could not have beenconvicted of the offence in terms of the charges framed against him.

23.PW-6, the Complainant admittedly turned hostile.Therefore, asregards the pre-raid proceedings and what happened immediately thereafterat the shop of PW-16 had to be proved only by the evidence of PW-5.Admittedly PW-5, panch witness was stock witness.The Supreme

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Court has, in G.V. Nanjundiah, discussed the effect of the evidence ofstock witnesses. In para 19 of the said judgment in G.V. Nanjundiah, itwas observed as under [SCC (Cri) @. P.85):

“19. As has been noticed earlier, the learned Special Judge and alsothe High Court have placed much reliance upon the evidence of R.L.Verma and R.N. Khanna and the Deputy Superintendent of Police asto the acceptance of the bribe by the appellant and recovery of thebribe amount from him.R.L. Verma and R.N. Khanna have beenstated to be two independent witnesses. So far as R.N. Khanna isconcerned, he categorically admitted in his cross-examination that hehad earlier joined three or four such raids for traps organised by theCBI.Khanna and Verma work in the same office and there issubstance in the contention made on behalf of the appellant that bothof them are very much known to the police.It was the DeputySuperintendent of Police who had called them from their office forthe purpose of being trap witnesses.We do not think that in thecircumstances either of them can be called an independent witness.”

24. In the present case, it was unsafe for the trial Court to have proceededto accept the version of PW-5 as regards the demand of the bribe by theAppellant from PW-6 ‘by words and gestures’. If the demand was on behalfof Constable Ranbir Singh then clearly it could not have been merely bygestures. If it was by words, then PW-5 does not say what the wordsactually used were. On the other hand, PW-6 has totally failed to supportthe case of the prosecution in this regard.In the circumstances, it was

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unsafe for the trial Court to have proceeded to accept the case of theprosecution only on the basis of the evidence of PW-5.

25. As already noticed, PW-5 entered the picture after the signal was givento the raiding party. Therefore he was not witness either to the demand oracceptance of the bribe by the Appellant.

26. As explained by the Supreme Court in Suraj Mal v. State, the mererecovery of the bribe amount cannot itself prove the charge in the absenceof any evidence to show that the Appellant voluntarily accepted the bribeamount. Again in C.M. Girish Babu v. CBI, it was pointed out that themere recovery of the tainted money divorced from the circumstances underwhich it was paid, is not sufficient to convict the accused when theevidence in the case is unreliable.

27. The Court is of the view that the prosecution in this case, has not beenable to prove the offence with which the Appellant has been chargedbeyond all reasonable doubt. The benefit of doubt ought to be given to theAppellant.

28. Accordingly, the impugned judgment of the trial Court is set aside andthe appeal is allowed. The Appellant is acquitted of the offences with whichhe has been charged.

MARCH 03, 2014

akg

S. MURALIDHAR, J.