9911796707
TMI Blog2016 (1) TMI 1429X X X X Extracts X X X X X X X X Extracts X X X X ..... r short "the PC Act") and vide order dated 15.7.2008 sentenced him to undergo rigorous imprisonment for two years with fine of Rs. 5,000/- for the offence punishable Under Section 7 of the PC Act and in default to undergo simple imprisonment for two months. For the offences punishable Under Section 13(2) of the PC Act, he was further sentenced to undergo rigorous imprisonment for two years with fine of Rs. 5,000/- and in default to undergo simple imprisonment for two months. Both the sentences imposed upon him for the above said offences were to run concurrently. 3. Brief facts of the case are stated hereunder to appreciate the rival legal contentions urged on behalf of the parties: 4. The prosecution case before the trial court was that on 29.7.2004, an FIR No. 662 of 2004 was registered at Police Station, Nangloi, Delhi Under Sections 279 and 337 of Indian Penal Code (for short "Indian Penal Code") against one Krishan Kumar (PW-9), the brother of the complainant-Jai Bhagwan (PW-2). Krishan Kumar was arrested on 29.7.2004 in connection with the alleged offences referred to in the above said FIR. 5. The complainant-Jai Bhagwan (PW-2) had approached Assistant Sub-Inspector (ASI) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the spot and had conversation with complainant-Jai Bhagwan. Both the complainant and the Appellant moved towards a water trolley, had water and again continued their conversation. Panch witness-Anoop Kumar Verma followed them. After sometime, the complainant-Jai Bhagwan took out the tainted GC notes from the left pocket of his shirt and gave them to the Appellant which he took with his right hand and kept the same in the left pocket of his shirt. Soon after the said transaction, panch witness-Anoop Kumar Verma gave the pre-determined signal to the raiding team upon which the team rushed to the spot. 11. Anoop Kumar Verma informed the raiding team that the Appellant had demanded and accepted the bribe money of Rs. 1000/- from the complainant-Jai Bhagwan. Inspector Sunder Dev introduced himself as Inspector from Anti Corruption Branch to the Appellant upon which he immediately took out the tainted GC notes from the pocket of his shirt with his left hand and threw the same on the ground. The said GC notes were then picked up from the ground by panch witness-Anoop Kumar Verma on the instructions of Inspector-Sunder Dev. The serial numbers of the recovered GC notes were matched with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phthalein test, sans the proof of demand of bribe is not enough to establish the guilt of the charge made against Appellant. In support of the above legal submission, he placed reliance upon the judgments of this Court in the cases of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55, A. Subair v. State of Kerala (2009) 6 SCC 587 and State of Kerala and Anr. v. C.P. Rao (2011) 6 SCC 450, wherein this Court, after interpreting Sections 7 and 13(1)(d) of the PC Act, has held that the demand of bribe money made by the accused in a corruption case is a sine qua non to punish him for the above said offences. The learned senior Counsel has also placed reliance upon the three Judge Bench decision of this Court in the case of P. Satyanarayana Murthy v. The Dist. Inspector of Police, State of Andhra Pradesh and Anr. (2015) 10 SCC 152, in which I was one of the companion Judges, wherein this Court, after referring to the aforesaid two Judge Bench judgments on the question of necessity of demand of bribe money by the accused, has reiterated the view stated supra. 16. It was further contended by him that the High Court has failed to appreciate the fact that the complainant-Jai Bhagwan tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore not vitiated in law. Hence, he would submit that no interference with the same is required by this Court in exercise of its appellate jurisdiction. 21. He has submitted that the High Court has rightly re-appreciated the evidence of the complainant-Jai Bhagwan and other prosecution witnesses and concurred with the findings recorded on the charges. Further it was submitted by him that the trial court while appreciating the evidence of the complainant-Jai Bhagwan relied upon the decision of this Court in the case of Sat Paul v. Delhi Administration AIR 1976 SC 294, paragraphs 41 and 51 of which decision in recording the finding on the charges against the Appellant, are extracted hereunder: 41. The fallacy underlying this view stems from the assumption that the only purpose of cross-examination of a witness is to discredit him; it ignores the hard truth that another equally important object of cross-examination is to elicit admissions of facts which would help build the case of the cross-examiner. When a party with the leave of the court, confronts his witness with his previous inconsistent statement, he does so in the hope that the witness might revert to what he had sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: 16...It is true that complainant has not testified entirely in terms of his statement recorded Under Section 161 Code of Criminal Procedure and he was declared hostile and was cross examined with the leave of the court. But simply because he did not testify strictly as per the prosecution case does not mean that his statement is altogether effaced from the record. Therefore, he would submit that the decision of the trial court on the charges framed against the Appellant is based on proper evaluation of the evidence on record which has been rightly accepted by the High Court. Therefore, the same cannot be termed as erroneous in law and need not be interfered with by this Court in exercise of its appellate jurisdiction. 23. It was further contended by him that though the complainant-Jai Bhagwan turned hostile witness and he has deposed before the trial court by stating that he had inserted the tainted GC notes in the left pocket of Appellant's shirt. The trial court has held that evidence of Anoop Kumar Verma and inspector-Sunder Dev have supported the case of the prosecution who have demolished the version given by the complainant-Jai Bhagwan (PW-2) in his examination-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore he was declared as hostile witness and thereafter, he was cross-examined by Mr. Alok Saxena, the learned Additional Public Prosecutor to the following effect: I did not mention in my complaint that one ASI Ranbir Singh asked Constable Krishan Kumar to release my brother and he himself went for some other work and I requested Constable Krishan Kumar to release my brother and he demanded Rs. 5000/- from me for releasing my brother (confronted with portion A to A of his complaint Ex. PW2/A...... It is incorrect to suggest that accused Krishan Kumar had demanded Rs. 5000/- from me and today I am giving a false exception that one IO had demanded Rs. 5000/- from me in order to save the accused......I did not tell to the police that after receiving signal from the panch witnesses, Raid Officer came near me and challenged the accused that he had taken Rs. 1000/- as bribe from me on which accused became perplexed and he took out those treated GC notes from his pocket and threw the same on the ground (confronted with portion B to B of his statement-Ex. PW-2/H recorded). He has further stated that: It is wrong to suggest that accused Krishan had accepted bribe from me in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The relevant para 12 of the aforesaid case reads thus: 12. It is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether. In Bhagwan Singh v. State of Haryana Bhagwati, J., speaking for this Court observed as follows: The prosecution could have even avoided requesting for permission to cross-examine the witness Under Section 154 of the Evidence Act. But the fact that the court gave permission to the prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. (Emphasis supplied) However, in the instant case, from the material on record, it is amply clear that the complainant-Jai Bhagwan turned hostile on two important aspects namely, demand and acceptance of bribe by the Appellant which is sine qua non for constituting the alleged offence Under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove the prosecution case. 31. It becomes amply clear from the perusal of the evidence of PW-10, I.O. in the case that the same has not been done by the prosecution. Thus, the statements of PW-2 marked from Section 161 of Code of Criminal Procedure in his cross-examination cannot be said to be proved in the case to place reliance upon his evidence to record the findings on the charge. The position of law in this regard is well settled by this Court in the case of V.K. Mishra v. State of Uttarakhand (2015) 9 SCC 588. The relevant paras are extracted hereinbelow: 16. Section 162 Code of Criminal Procedure bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police Under Section 161(1) Code of Criminal Procedure can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) Code of Criminal Procedure. The statements Under Section 161 Code of Criminal Procedure recorded during the investigation are not substantive pieces of evidence but can be used primarily for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction. (Emphasis laid by this Court) Thus, the contradiction of evidence of the complainant-Jai Bhagwan (PW-2) does not prove the factum of demand of bribe by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The relevant paragraph 7 from B. Jayaraj case (supra) reads thus: 7. Insofar as the offence Under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence Under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI. (Emphasis supplied) In the case of P. Satyanarayana Murthy (supra), it was held by this Court as under: 21. In State of Kerala and Anr. v. C.P. Rao, this Court, reiterating its earlier dictum, vis-`-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 22. In a recent enunciation by this Court to discern the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 740-41, para 39) 39. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption Under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated Under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation Under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted. (Emphasis supplied) 35. The learned Senior Counsel for the Appellant has also placed reliance upon the case of Banarsi Dass referred to supra wherein it was he ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
