Sahib Singh v. State

JUDGMENT

SUNITA GUPTA, J. For detailed order, see Crl.A. 1222/2011. (SUNITA GUPTA) JUDGE APRIL 06,2016 rs Crl.Appeal No.1225/2011 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:6^'' April, 2016 I CRL.A. 1222/2011 IlARISII KUMAR Appellant Tlu-ough Mr. Ashok Soni & Mr. S.S. Chugh, Advocates versus STATE Respondent Tln-ough Mr. Hirein Sharma, APP for the State. I CRL.A. 1225/2011 & Crl. MA 4908/2012 SAHIB SINGH Appellant Through Mr. Deepak ShaiTna,Advocate versus STATE Respondent Through Mr. Hirein Sharma, APP for the State. % CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA JUDGMENT ; SUNITA GUPTA, J.

¶1Feeling aggrievedby the judgmentdated 20"" August, 2011 passed by the Special Judge (PC Act)-06, Tis Hazari, Delhi in CC No.185/09vide which appellant Sahib Singh was convicted under Section 7, 13(l)(d) punishable under Section 13(2) of the POC Act, 1988 r/w Section 120B of IPC and accused Harish guilty under Section 7 of POC, 1988 Act r/w Section 120B ofIPC and orderon sentencedated 8"^ September,2011 vide which both the appellants were sentenced to undergo RI for a period of one Crl. Appeal No.1222and 1225/2011 Page1 of 19 year with fine ofRs.5,000/-in defaultto undergosimpleimprisomnentfor further period of 3 months, separateappeals bearing nos. 1225/2011 and 1222/2011 have been preferred by thera. th

¶2During the pendency of the appeal, Sahib Singh expired on 10 December,2012 and vide orderdated 15"^ April,2013, his legalheirs were allowed to continuewith the appealto be decided on merits.

¶3Succinctly stated, prosecution case is as follows On 6"' May, 2005, complainantSomi, S/o ChanderBhan came to Anti CoiTuptionBranch, Delhi and gave a statementalleging inter alia that on 5'^' May, 2005, he along with his cousin brother Raj Kumar was going to Clock Tower, Shakti Nagar from Lai Bagh, Azad Pur on a two wheeler scooter bearing No. DL 8 5C 9216. At Check Post near gandanala, his scooter was stopped by Sahib Singh who asked for the documents of the scooter including pollution certificate. Since he was not having the pollution certificate, Sahib Singh told him that his vehiclewill be impounded.He pleadedthat he was a poor man, thereuponSahib Singh demandedRs.lOO/- for releasing the vehicle, however, he was not having Rs.lOO/-. Therefore, his driving licence as well as mobile make garud bearing No.20572030 belonging to Raj Kumar was kept by him and he was asked to pay Rs.lOO/- on 6^'' May, 2005 at 4:00 p.m. and then take back the drivinglicenceas well as mobile. He was further asked to give the amountto a shopkeepernear the picket andto take backthe licence. Sahib Singh would take bribe tlu'ough that shopkeeper, however, he is against paying any bribe, therefore, he prayed for action. Statement of the complainant Ex.PW4/A was recorded by PW7-ACP then Inspector B.S.Yadav in the presence of panch CrI. Appeal No,12?.2and 1225/2011 Page 2of19 witness-Mahesh Kumar. The complainant had brought one GC note of Rs.lOO/- which was handed over to him and he recorded its serial number in the pre-raid report Ex.PW4/B. Phenolphthalein powder on those GC notes was applied by Sh.B.S.Yadav and demonstration was given to thepunch witnessand the complainantby touchingthe right hand of panch witness with those treated GC notes and his wash of right hand in the solution of Sodium Carbonate was taken which turned into pink. Thereafter hands of panch witness were got washed with the soap and that solution was thrown away. The GC note was given to the complainant who kept the same in the pocket of his shirt. Panch witness was instructed to remain close to the complainant and to overhear the conversation and after being satisfied that bribe had actually been gwQn,panch witness was asked to give a signal by putting his hand over his head. The complainant was also instmcted to remain close to panch witness in such a manner that he could be able to see the transaction and hear the conversation and give the bribe money on specific demand. On the same day, at about 3:45 pm, Inspector B.S. Yadav along with the complainant, panch witness. Inspector K.S. Pathak, Sub-Inspector Sumer Singh along with 3 or 4 other members of raiding party left Anti-CoiTuptionBranch for Gur Mandi Ganda Nala, Model Town in a government vehicle and reached there at about 4:00 pm. The government vehicle was left at the gate of Gur Mandi and Inspector K.S. Pathania remained in that vehicle. Complainant and panch witness were reminded about the instmctions given to them in pre-raid proceedings and they were sent towards police picket Ganda Nala, Gur Mandi. Inspector B.S. Yadav along with members of raiding party followed them and took their suitable positions near CrI. Appeal No.1222and1225/2011 Page 3of19 /- / •V 2^" police post. Outside the police picket, both the accused were standing. The complainanttalkedto ConstableSahib Singh. Sahib Singh asked him to give the money to accused Harish Kumar. Thereafter,the complainantgave GC note of Rs.lOO/- in the right hand of accused Harish which he kept in the left side pocket of his shirt. Harish went to his shop and brought one envelope and handed over the same to the compkinant. After seeing the transaction, the panch witnessgave the pre-determinedsignalto the membersofthe raiding party who came there and apprehendedboth the accused persons. On the instructions of Inspector B.S. Yadav, panch witness recovered that GC notes from the pocket of the shirt of the accused-Harish which was taken into possession vide seizure memo EX.PW4/C. Thereafter right hand wash of accused Harish was taken in the colourless solution of Sodium Carbonate which turned into pink. That solution was transferred into two empty small clean bottles which were sealed with the seal of BSY. Wash of left pocket shirt of Harish was also taken and seized vide seizure memo EX.PW4/E. The driving licence of the complainant and mobile phone were seizedvide seizurememo Ex.PW4/F. Thereafterrukka EX.PW7/A was prepared and was sent through Constable Jai Prakash to Police Station, Anti-Comiption Branch for registi'ation of the case on the basis of which FIR, Ex.PW12/A was got recorded by PW12-SI Hari Om. Thereafter, Inspector K.S. Pathania was called at the spot and custodyof both the accusedwas handedoverto him along with case property. InspectorK.S. Pathaniapreparedsite plan EX.PW14/Aat the instance of complainant andpanch witness. Both the accused were an'ested. The case property was deposited in CrI. Appeal No.1222and 1225/2011 Page4of19 malkhana. Duringthe courseof investigation,the case propeitywas sent to FSL from where result Ex.PW14/A was received. A letter of requestalong with documentswas sent to DCP for grantofsanction to prosecuteaccused Sahib Singh which was accordedby PW-11 Sh.VirenderSingh. After completinginvestigation,chargesheet was submitted against both the accused.

¶4Both the accused were charged for offence punishable u/s 7 of the Preventionof CormptionAct, 1988 r/w Section 120B IPC. Additionally Sahib Singh was also chargedfor offenceu/s 13(l)(d) punishableu/s 13(2) of Prevention of Corraption Act, 1988. Both the accused abjured the guilt and claimed trial.

¶5In order to substantiate its case, prosecution examined 14 witnesses. All the incriminating evidence was read over to both the accused while recordingtheir statementu/s 313 Cr.P.C. whereinthey denied the case of the prosecution.AccusedHarishKumar pleadedthat neitherhe demanded any bribe nor acceptedthe same. He was victim of circumstances. He did not know what transpired between the complainant and the co-accused. He was not even aware as to what was lying in the envelope which the complainantwas having. Sahib Singh also denied having demanded or acceptedany bribe. Accordingto him, he was notworkingas trafficpolice at the relevant time. The checking of vehicle is entrusted to traffic police, lie never asked for bribe from the complainant or other witness, namely, Raj Kumar. Raj Kumaris abad characterofthe area and blackmailerwho had dragged 2-3 other officials in the same fashion. However, none of thempreferredto lead anydefenceevidence. CrI. Appeal No.l222and 1225/2011 Paie5of19

¶6Vide impugned judgment and order, both the appellants were convicted and sentenced as mentioned hereinbefore.

¶7Assailingthe findings of the learned SpecialJudge, Sh. Anil Soni, learned counsel for the appellant-Harishsubmitted that Harish is a tempo driver. The charge againsthim was u/s 7 of Preventionof CorraptionAct r/w Section 120 B IPG, however, he has been convicted for offence u/s 13(l)(d) of POC Act, 1988 and punishable u/s 13(2) of POC Act r/w Section 120 B IPG as if he is a public servant. As per the prosecution case, when the demandofbribe was made by the co-accusedSahib Singhon 5'^ May, 2005, he was notpresentat the spot. Evenonthe date of incident,he was not on the check post. Absolutely no evidence was led by the prosecution to prove that there was a conspiracy between the two co-accused. In this regard heavy reliance was placed on the cross-examination ^ ofthe complainantwhereinhe deposedthat when on the asking ofSahib Singh, he gave Rs.lOO/-to Harish,he was surprisedand thereafterlooked at Sahib Singh. When Sahib Singh nodded his head, then Harish took the same. Therefore, where is the question of meeting of minds? No evidence has been led by the prosecution to prove that this appellant was having the knowledgethat it was bribe money. Althoughit was not disputedduring the course of arguments that Rs.lOO/- was given to him which was recovered from his possession but it was submitted that the evidence is conspicuously missing that the appellant was having the requisite Imowledgethat it was bribe money. Therefore, he could not have been convicted for the said offence. Reliance was placed on Prem Singh Yadav vs. CBI, 2011(2) JCG 1059;K. Subba Reddy vs. State ofAndhra Pradesh, 2008 Grl.LJ 345 and Virendranath vs. State of Maharashtra,

(1996) 11 see 688. CrI. Appeal No.1222and 1225/2011 Page 6of19 ^0

¶8Assailing the findings of the learned Special Judge, counsel for appellant-SahibSinghsubmittedthat as per the case ofprosecution,on S*'' May, 2005 itself, the driving licence of complainant as well as mobile phone of Raj Kumar was kept by this appellantto be retimiedon payment of Rs.lOO/-. However, PW13-Sumer Chand, uncle of Raj Kumar has deposedthat the mobileis in his name and this mobiletelephonewas given by him for use to his nephew Raj Kumar on 6'^ May, 2005. Ifthe mobile itselfwas given to Raj Kumar on 6'^ May, 2005 by SumerChand,how this mobile could be handed over by the complainantto Sahib Singh on 5^'' May, 2005. Furthemore, althoughit is the case of the prosecutionthat the drivinglicenceof the complainantwas takeninto possessionbut testimony of PW3-Kartar Singh is silent regarding deposit of driving licence. The panch witnessdidnot identifyany of the accused. Moreover,accordingto InspectorB.S.Yadav,the bribe amount was taken out from the pocket of Harish by the panch witness, however, testimony of panch witness is conspicuouslysilent in this regard. Moreover,the punch witness did not hear any conversation between Sahib Singh and the complainant as accordingto him, he was standing outside the police booth whereas the talks between the complainant and Sahib Singh took place inside the booth. Moreover, Raj Kumar, who was allegedly accompanying the complainanton 5'^' May, 2005 when the mobilephone and drivinglicence were kept by Sahib Singh for non-paymentof bribe amount, althoughwas examined as PW-11 but his testimony is confined to handing over the copy of the registrationcertificateof the scooter. He has not deposed anything regardingthe incidentwhich allegedlytook place on 5"" May, 2005. As such, the very genesis of the case is doubtful.

¶9Reference was also made to an apphcation moved u/s 391 r/w Scction 482 Cr.P.C. filed by the appellant for leading flirther evidence for Crl. Appeal No.1222and 1225/2011 Page 7of19 showingthat a specificsuggestionwas given to the complainantthat Raj Kumar is a bad character of police station Sabzi Mandi but he pleaded his ignorance. In his statementu/s 313 Cr.P.C. also same plea was taken by the appellantthat he is a blackmailerwho had dragged2-3 officialsin the same fashion but at that time he had no details of the cases. Now, under RTI Act he has come to know that as many as 14 cases are pending against Raj Kumar whereas the complainantis also arrested in a case u/s 324/34 IPG, Police Station Adarsh Nagar, Delhi. Under the circumstances, it is submitted that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. As such, the appellant is entitled to be acquitted. It is further submittedthat during the pendency of the appeal, the appellanthas expired and the present appeal has been pursued by his family members. He was a constable in Delhi Police and was suspended after the registration of this case. All the benefits accrued to the appellant have not been released to his family members due to pendency of this case. As such, it is submitted that even on humanitarian grounds, a liberal view is required to be taken.

¶10ReUance is placed on State ofPunjab vs. Madan Mohan Lai, AIR 2013 SC 3368 Hari Singh Yatlavvs. State, Crl.A.464/2004 dated 18.02.2014 S.K-Singhal vs. State (CBI), 2013 (136) DRJ 431 Chironjilal vs. State ofM.P., 2008 Crl.L.J 1784(Madhya Pradesh High Court) RaghhirSingh vs. State ofPunjab, 1976 Crl.L.J172 (SupremeCourtofIndia) State ofRajasthan vs. Mohan Lai, 2009 (2) RCR (Crl.) SC 812 Sanjiv Kumar vs. State ofHaryana, 2010 (4) RCR (Crl.) 891 Roshan Lai Saini vs. CBI, 2011 (2) RCR (Crl.) 36 (Delhi) State (Govt. NCT ofDelhi) vs. Girdhari Lai Verma, 2011 (3) JCC 1744 Narayan Swami vs. OfMaharashtra, 1968 Crl.L.J. 657 (S.C.) The Pubic Prosecutor (A.P.) vs. Baggu Rama Murti & Ors., 1973 Crl.L.J.1761 (Andlu-aPradesh High Court) Kanti Prasad Tyagi vs. State ofDelhi, 2014 (1) JCC 803 DHC Rajinder Kumar Narang vs. State, 2014(2)JCC 1085 (DelhiHighCourt) Crl. Appeal No.1222and1225/2011 Page8of19

¶11Counteringthe submissions of learned counsel for the appellant, learned Additional Public Prosecutor for the State subletted that the fectum of paymentofbribe, its acceptanceand recoveryhas been proved by the prosecutionbeyondreasonabledoubt. Even the panch witnesshas supported the case of prosecutionin all material particularsexcept for identifyingthe accused. However, the identity of the accused is proved fi-om the testimonyof the complainantand other witnesses. The impugned judgment does not call for any interference.As such, the appeals are required to be dismissed. Appeal No.1222/2011 (filed by Harish Kumar)

¶12As per the prosecutioncase, on 5"^ May, 2005, while PW4-Soni along with PWll-Raj Kumar were going on two-wheeler scooter and reached at Check Post near Ganda Nala, they were stopped by co-accused Sahib Singh who asked for the documents of the scooter including pollutioncertificate.Since the complainantwas not having the pollution certificate, he was told that the vehicle would be impounded. A sum of Rs.lOO/-was demanded by Sahib Singh as bribe for releasing the vehicle. The driving licence of the complainant and mobile phone of Raj Kumar were kept by Sahib Singh to be returned on the next day when Rs.lOO/- will be paid by the complainant.It is allegedthat the complainantdid not want to pay bribe, therefore,approachedthe Anti-Con-uptionBranch. A trap was laid pursuantto which one panch witness-MaheshKumar, PW8 was joined. Thereuponthe officialsof the Anti-ComiptionBranch along with the complainantand panch witness reached the spot where on the directions of Sahib Singh, complainant gave a note of Rs.lOO/- to this appellantwhich was kept by him in left pocket of his shirt. Thereafter, CrI. Appeal No.l222and 1225/2011 Page 9of19 when the raiding party reached the spot, the recovery was effected from Harish Kumar. Recovery of Rs.lOO/-from the pocket of Harish Kumar is not even disputed by the learned counsel for the appellant, however, the crucial question for considerationis whether Harish Kumar was aware of the fact that it was a bribe money or there was any meeting of minds between Harish Kumar and the appellant-Sahib Singh. The sequence of events as narrated by the prosecution witnesses makes it clear that when demand of Rs.lOO/-was made bythe co-accusedSahib Singh on 5'^ May, 2005, this appellantwas not present. As regards the incidentof 6"^ May, 2005, the cross-examination of the complainant himself is very material wherein he deposed as under:- "The tempo stand of accused Harish was at a distance of about 20 meters from the checi<post. When I went to the spot along with the panch witness, accused Sahib Singh was present near the checic post and accused l-iarish was present near his tempo stand. The tall<s of bribe too/f place with accused Sahib Singh at the check post. When the talk took place with Sahib Singh, Harish was at his tempo stand. Accused Sahib Singh asked me at check post to hand over money to Harish who was standing near his tempo stand. When I tendered money to Harish at his tempo stand, Harish was bit surprised and when I told Harish that Sahib Singh had asked me to hand over money to him and then Harish looked at Sahib Singh and Sahib Singh nodded with head indicating to accept the money. When Sahib Singh directed me to handover the money to Harish, he told me that he (Sahib Singh) has to pay Rs.lOO/- to Harish. Harish handed over envelop to me at the asking of Sahib Singh "

¶13The conduct of this appellant in getting surprised when the complainant tendered money to him and thereafter on receiving signal from Sahib Singh to accept the money itself raises a doubt as to whether he was having any knowledge that the amount paid to him was bribe money. Moreover, Sahib Singh also told the complainant that he was to pay Rs.lOO/- to Harish and, therefore, the said amount be paid to him. Admittedly,no demandwas made by this appellanteitheron 5**" May, 2005 or on 6^'' May, 2005. Demand of illegal gratificationis sine qua non for CrI. Appeal N0.122Zand 1225/2011 Page10 of 13 3> constituting an offence under the Act, 1988. As such, mere recovery of tainted money alone is not sufficient to record conviction.

¶14In Prem Singh Yadav (supra), learned Single Judge relied upon the following judgments;- "in Suraj Mai vs. State (Delhi Administration), (1979) 4 SCC 725,it was held that mere recovery of money, divorcedfrom the circumstances under w/hich it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. iVIere recovery of money cannot prove the case of the prosecution against the accused in the absence of any instance to prove the payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. In the case of CM. Girish Babu (supra). The Supreme Court held that mere recovery of money from the accused by itself is not enough in the absence of substantive evidence of demand and acceptance. In this case the reliance was also placed on a three-Judge Bench judgment in M. Narsinga Rao v. State of A.P. wherein it was held as under: "20. A three-Judge Bench in M. Narsinga Rao v. State of A.P. while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCCp.700, para 24)

¶24...we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra) The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned Counsel: (See P.577, Para 12)

¶12The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by lookingat the collocationof two expressions adjacent to each other like 'gratification or any valuable thing'. Ifacceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it. CrI. Appeal No.l22Zand1225/2011 Page 11of19

¶22It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.

¶4...It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence of proof his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 under the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e.; that of establishing on the whole case the guilt of the accused beyond a reasonable doubt." (See V.D. Jhangan v. State ofU.P. at AIR p. 1764, para 4). (Emphasis supplied)

¶15In the case of Dnyaneshwar Laxman (supra) also the Supreme Court held as under: "16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt." CrI. Appeal No.1222and 1225/2011 Page 12of19

¶15K. Subba Reddy (supra) was also a case where the complaint was that Excise Sub-Inspector demanded bribe from complainant for return of stock register. The complainant was asked to pay amount to the accused in case Sub-Inspector was not available. Tainted money was paid and recovered from accused. His conviction was set aside by Hon'ble Supreme Court on the ground that there was no evidence to show that accused had any knowledge that money paid was bribe money. Accused was a home guard. He had no role to pay in return of stock register, as such, evidence was insufficient to convict him. Virendranath (supra) was again a case where the complainant gave tainted money to A2-a restaurant owner at the request of Al-a police officer. A trap was laid and tainted money was recovered from A2. A1 was convicted under Section 7 and 13(1) (d) r/w Section 13(2) and A2 convicted as abettor u/s 7 r/w Section

¶12Conviction of A2 was set aside on the ground that the prosecution had not led any other evidence except for recovery of tainted money from the possession of A2 from which it can be spelt out that A2 was a habitual go-between in facilitating acceptance of bribe by Al. Even in State ofPunjab vs. Madan Mohan Lai Verma (supra) relied upon by the counsel for co-accused Sahib Singh, it was held that demand of illegal gratification is sine qua non for constitutingan offenceunderthe Act, 1988. Mere recoveryof tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarilyas a bribe. Mere receiptof amountby accusedis not sufficientto fastenguiltin the absenceof any evidencewith regard to demand and acceptanceof the amount as illegal gratification.Hence the burden rests on the accused to displacethe statutorypresumptionraised under Section20 of the Act by bringing on record evidence, either direct or circumstantial,to estabhsh CrI. Appeal No.l222and 1225/2011 Page 13 of19 -1^- with reasonable probability that the money was accepted by him other than as a motive or reward as referred to in Section 7 of the Act. While invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution.

¶16In the instant case, although the accused has led no evidence in defence but from the cross-examination of prosecution witnesses more particularly the complainant himself, he has satisfactorily discharged the onus laid upon him. By preponderance of probability, the accused has been able to create doubt in the prosecution case. Except for recovery of tainted money from the possession of this appellant, no evidence has come on record to prove that accused had any knowledge that money paid was bribe money. It is settled principle of law that suspicion, howsoever grave, cannot take place of proof and in ^se of doubt, the accused is entitled to get the benefit of the same.

¶17As regards the submission that although the appellant was charged for offence under Section 7 of POC Act/120B IPC but convicted and sentenced for offence u/s 13 (1) (d) of POC Act r/w 13(2) of PQC Act r/w Section120B IPC, it seemsto be a clericalerror. Videjudgmentdated20"^ August, 2011 this appellant was held guilty u/s 7 of POC Act r/w Section 120B IPC only. However, while awarding sentence, the same Sections under POC Act and IPC were mentioned as that of Sahib Singh, however, this was only a technical eiTor but on the factual matrix of the case as observed above, prosecution failed to establish its case beyond reasonable CrI. Appeal No.1222 and 1225/2011 «• & doubt qua this accused. As such, his appeal succeeds. The impugned judgment qua him stands set aside and he is acquitted of the offences alleged against him. Aimeal No. 1225/2011 filed by Sahib Chand

¶18It is not in dispute that this appellant was posted as constable in Delhi police. As stated above, as per the case ofprosecution,on 5"' May, 2005 he had demanded a sum of Rs.lOO/- from the complainant for releasing his vehicle and since the complainant was not having the requisite amount on that day, as such, the driving licence of the complainantand mobile phone of Raj Kumar was kept by this appellant and complainant was told to pay the amount next day and thereafter the seized articles will be returned to him. According to the complainant, he was accompanied by Raj Kumar, S/o Chhote Lai and were going on two-wheeler scooter towards Shakti Nagar Chowk when this incident took place. It is pertinentto note that Raj Kumar S/o Chande Lai althoughwas examined by prosecution as PWll, however, his testimony is confined to handing over the copy of registration certificate of two-wheeler No.DL 8 5C 9216 to InvestigatingOfficer of the case which was in the name of Suresh Kumar on 8"" March, 2006. If the complainantwas accompanied by this witness when the requisite demand of bribe was made by this appellant, the Investigating Officer who had recorded his statement must have recordedthe incidentof 5"" May, 2005 as well. But his testimonyis conspicuouslysilent regardingthe incidentof 5^*^ May, 2005. Not only that, his testimonyis also conspicuouslysilent as to whetheron 5"" May, 2005, he was having any mobile make gariid bearing No.20572030which V he handed over to the appellant. Except for the testimony of the complainantwho is an interestedwitness, there is no coiToborationeither CrI. Appeal No,1222and 1225/2011 Page 15 of19 to his initial statement Ex.PW4/A or his deposition in the Court regarding the incidentof S'*" May, 2005.

¶19Things did not end here. Althoughaccordingto the complainant,the mobilephoneof Raj Kumarmakeganid bearingNo.20572030was handed over to the appellant on 5"" May, 2005, however, as stated above, testimony of Raj Kumar is completely silent in this regard. The prosecutionalso examinedPW13-SumerChand, uncle of Raj Kumar who has deposed that this mobile is in his name and he had given this mobile telephonefor use to his nephew Raj Kumar on "6^'^ May, 2005". If the mobilephonewas handedoverto Raj Kumaron 6"^ May,.2005 only, where was the questionofRaj Kumarhavingthis mobileon 5*'^ May, 2005 so that it could be handed over to Sahib Singh on that day? All this makes the genesis of the entire incident doubtful.

¶20Furthermore, besides the complainant, the only independent witness is PW8-Mahesh Kumar. This witness did not support the case of prosecutionin all materialparticularsand in cross-examinationby learned Public Prosecutor, he categorically denied that this appellant was the same person who met them at police picketor accusedHarish Kumar was the •person who had acceptedthe bribeofRs.lOO/-fromthecomplainanton the direction of accused Sahib Singh.

¶21Over and above, according to Inspector B.S. Yadav, specific instructionswere given to this witnessto remainwiththe complainantand j to hear the conversationbetweenthe complainantand the appellantbut he ^ admits in cross-examinationthat he did not hear the conversationwhich took place betweenthe complainantand the constableas the complainant and constable were sitting inside the beat box whereas he was standing CrI. Appeal No,1222and 1225/2011 Pai^ 16 of19 near the wmdow of beat box. In State ofRajasthan vs. Mohan Z,fl/(supra) and Sanjiv /fw/ziarCsupra),one of the ground for acquittal of the accused was that the independent witness did not hear any conversation between the complainant and the accused.

¶22Furthermore, according to Inspector B.S. Yadav and Inspector K.S. Pathania, the entire post-raid proceedings were conducted at the spot. However,they were contradictedby this witnesswho deposedthat pre-raid proceedings were conducted before going for raid and post-raid proceedings were conducted after bringing the two persons to Anti-CoHTiptionBranch.

¶23Moreover, it is not estabhshed on record as to who recovered the amount from Harish as Inspector B.S. Yadav has deposed that on his instiTictions,panch witnessrecoveredthe GC notes from pocket of shirt of the accused Harish, however, testimony of panch witness is completely silent in this regard.

¶24Lastly, it was suggestedto the complainantm cross-examinationthat Raj Kumar is bad characterof Sabji Mandi and is involvedin II cases of Police Station Subzi Mandi and Bara Hindu Rao and has also dragged 2-3 other officials in the same fashion. Although no concrete evidence was led by the appellant, however, now he has placed on record information received under Right to InformationAct for showing that Raj Kumar was involved in as many as 14 cases.

¶25It is settled principleof criminaljurisprudencethat the burden of proving the guilt of the accused beyond reasonable doubt is upon the prosecution and as stated above, the burden to displace the statutory CrI. Appeal No.l222and 1225/2011 Page 17of19 presumptionraised under Section20 of the Act would rest on the accused only after his foundationalfacts have been established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence has to be tested in the same way as that of any other interestedwitness. In a proper case, the Court may look for independentcorroborationbeforeconvictingthe accusedperson. {Vide: Ram Prakash Arora v. The State of Punjab, AIR 1973 SC 498; T. Siihramanian v. The State ofT.N., AIR 2006 SC 836; State ofKerala and Anr. V. C.P. Rao, (2011) 6 SCC 450 and Mukut Bihari and Anr. v. State of Rajasthan,

(2012) 11 SCC 642); State of Punjab vs. Madan Mohan Lai Verma (supra)

¶26The testimony of the complainant regarding the demand of Rs.lOO/- on 5'^' May, 2005 in the presenceof Raj Kumardoes not find corroboration from any independent source as despite the fact that Raj Kumar was examined as a witness he did not depose so. Similarly, keeping the mobile phoneofRaj Kumaron 5^' May, 2005 by the appellantis highlysuspicious in view of the testimony of PW13 who had handed over the mobile to Raj Kumar on 6*^ May, 2005 only. Therefore,questionof Raj Kumarhanding over his mobile on 5^'' May, 2005 to this appellantdoes not arise. In view of the aforesaid discussion, the prosecution has not been able to prove the guilt of the accusedbeyond shadow of reasonabledoubt. That being so, even this appellantdesei-vesthe benefitof doubt. Accordingly,he is also acquitted of the offence alleged against him.

¶27The result of the aforesaid discussion is that both the appeals succeed. Conviction and sentence are set aside. CrI. Appeal No.1222and1225/2011 Page 18of19 ;

• * IN THE HIGH COURT OF DELHI AT NEW Dl^jai DateofDecision:6*'' April,2016 + CRL.A. 1225/2011 & Crl. MA 4908/2012 SAfflB SINGH Appellant Through Mr. Deepak Sharma,Advocate versus STATE ••••• Respondent Through Mr. HireinSharma,APP for the State. % CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA