Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1276 OF 2010
Dashrath Singh Chauhan ….Appellant(s)
VERSUS
Central Bureau of Investigation ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is directed against the final
judgment and order dated 20.07.2009 passed by
the High Court of Delhi at New Delhi in Criminal
Appeal No.447 of 2001 whereby the High Court
dismissed the appeal filed by the appellant herein
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.10.09
16:01:01 IST
Reason:
and upheld his conviction and sentence awarded by
1
order dated 31.05.2001 passed by the Special
Judge, Delhi in C.C. No.53 of 1995 acquitting him
of the charge under Section 120B of the Indian
Penal Code, 1860 (hereinafter referred to as “IPC”)
and convicting him for the charges under Sections
7, 13(2) read with 13(1)(d) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as “the
PC Act”) and sentenced him to undergo rigorous
imprisonment for a period of two years and to pay a
fine of Rs.40,000/ under Sections 7 and 13(2) read
with Section 13(1)(d) of the PC Act cumulatively, in
default of payment of fine, he shall further undergo
simple imprisonment for six months.
2) In order to appreciate the issues involved in
this appeal, few facts need mention hereinbelow.
3) In short, the case of the prosecution is that the
appellant was an employee of Delhi Electric Supply
2
Undertaking (DESU). At the relevant time, he was
working on the post of Inspector.
4) On 28.03.1995, the complainantArun Kumar
(PW1) lodged an FIR under Section 7 read with
Section 13(2) of the PC Act against the appellant
and another employee of DESU namely, Rajinder
Kumar complaining inter alia that in January 1995,
he applied for installation of an electric connection
for his factory and for that purpose he met the
appellant in his office where he demanded from him
Rs.4000/ for doing the abovesaid work and told
him that unless he pays a sum of Rs.4000/ as
bribe to him, it is not possible to install the electric
connection.
5) On the basis of the said FIR, the CBI through
its Inspector Mr. Kaul (PW6) formed a raiding
party on 29.03.1995 to implicate the appellant and
3
then reached to his office with one shadow witness
Mahinder (PW2).
6) On reaching the office, the Complainant told
the appellant that he has brought Rs.4000/ as
demanded by him. The appellant, however, told the
Complainant to give the said money to Rajinder
Kumar, who accepted the money from him. No
sooner Rajinder Kumar accepted the money, than
PW2 and PW6 entered in the room and caught
Rajinder Kumar with the bribe money.
7) This led to initiation of the prosecution of the
appellant and coaccused Rajinder Kumar for
commission of the offences punishable under
Sections 7, 13(2) and 13(1)(d) of the PC Act read
with Section 120B of IPC in the Court of Special
Judge Delhi. The prosecution examined their
witnesses to prove the three charges framed against
4
both the accused. The appellant also adduced
defense evidence.
8) By judgment dated 31.05.2001, the Trial Court
(Special Judge) held that the prosecution failed to
prove the case of any conspiracy between the
appellant (A1) and coaccused Rajinder Kumar (A
2) in relation to the offences in question and,
therefore, the charge of conspiracy against them
under Section 120B IPC was held as not made out.
Both the accused were, therefore, acquitted of the
charge of conspiracy under Section 120B IPC.
9) The finding on this issue recorded by the Trial
Court in Paras 14 and 16 reads as under:
“ 14. In the case before us, there is not
even slightest evidence about the existence
of a criminal conspiracy between A1 and A2.
Once this had been established, only then we
could have read the statement of both the
accused, not only against each one of them,
but against the other of them and also for
proving the existence of criminal conspiracy
as such.
5
16.There is no such situation before us.
There are certain statements only. In any
case, once conspiracy is not established,
even the statement, made by A1 against A2
are viceversa, cannot be read in evidence.”
10) The Trial Court then disbelieved the evidence
of the Investigating OfficerMr. Kaul (PW6) on the
ground that he himself was of a doubtful integrity
because the High Court, in one case, had directed
registration of a bribe case against him and,
therefore, his evidence in this case cannot be relied
on (See Para 17 of the judgment of the Trial Court)
but the Trial Court believed the evidence of shadow
witness (PW2 Mahinder Lal) for holding the
appellant guilty of the offences punishable under
the PC Act.
11) The Trial Court accordingly acquitted Rajinder
Kumar (A2) from all the charges but convicted the
appellant(A1) for the offences punishable under
6
Sections 7 and 13 (2) read with 13(1)(d) of the PC
Act.
12) The State, however, accepted the judgment of
the Trial Court and did not file any appeal against
the acquittal of Rajinder Kumar nor even file any
appeal against the acquittal of the appellant from
the offence under Section 120B IPC.
13) The appellant (A1), felt aggrieved by his
conviction and sentence under the PC Act, filed
criminal appeal in the High Court at Delhi. By
impugned order, the High Court dismissed the
appeal and affirmed the judgment of the Trial Court
which has given rise to filing of the present appeal
by way of special leave by the appellant(A1) in this
Court.
14) Heard learned counsel for the parties.
15) Mr. Rishi Malhotra, learned counsel appearing
for the appellant (A1) while assailing the legality
7
and correctness of the impugned order mainly
argued two points.
16) In the first place, learned counsel contended
that the Trial Court as well as the High Court
having rightly acquitted both the accused (A1 and
A2) insofar as the offence of conspiracy under
Section 120B is concerned and further having
rightly acquitted Rajinder Kumar (A2) from all the
charges under the PC Act but erred in not
acquitting the appellant(A1) from the offences
under Sections 7, 13(2) read with Section 13(1)(d)
of the PC Act.
17) It was his submission that once the charge of
conspiracy under Section 120B IPC was held as
"not proved" against the appellant(A1) and the co
accused Rajinder Kumar(A2) and further its benefit
was rightly extended to Rajinder Kumar (A2) for his
clean acquittal from the charges under the PC Act,
8
the same benefit should have been extended to the
appellant(A1) as well.
18) In the second place, the learned counsel
contended that the appellant’s conviction is based
only on the evidence of a shadow witness (PW2)
whereas the evidence of the Investigation Officer,
Mr. Kaul (PW6) was not believed due to his
doubtful integrity.
19) It was his submission that the basic
requirements in such a case, namely, proving of
"demand of bribe and its acceptance by the
appellant" was not proved much less beyond
reasonable doubt. It was urged that at best what
the prosecution was able to prove was the “demand"
of bribe made by the appellant to the Complainant
but not “its acceptance” because the evidence, in
clear terms, established coupled with the findings of
the Courts below that the appellant did not accept
9
the money but it was accepted and recovered from
the possession of Rajinder Kumar(A1).
20) It was, therefore, urged that since the
acceptance of bribe money was not proved qua the
appellant and nor it was proved that Rajinder
Kumar accepted it for and on behalf of the
appellant, the appellant’s conviction under any of
the provisions of the PC Act much less under
Sections 7, 13(2) read with Section 13(1)(d) was
not legally sustainable and hence it deserves to be
set aside.
21) In reply, learned counsel for the respondent
(CBI) supported the reasoning and the conclusion
arrived at by the two Courts below and contended
that no case for any interference in the impugned
judgment is made out and hence the appeal be
dismissed.
10
22) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find force in the submissions of the learned counsel
for the appellant.
23) It is not in dispute that the prosecution had
framed three charges against the appellant and co
accusedRajinder Kumar and two out of the three
charges, namely, Charge Nos. 1 and 2 were based
on the conspiracy. It is also not in dispute that the
Trial Court, on appreciation of the evidence, held
that the prosecution failed to prove the charge of
conspiracy under Section 120B IPC against the
appellant and Rajinder Kumar (A1) and accordingly
acquitted both of them from the said charge. It is
also not in dispute that so far as coaccused
Rajinder Kumar (A1) is concerned, he was
acquitted from all the charges framed under the PC
Act. It is also not in dispute that the State neither
11
challenged the clean acquittal of Rajinder Kumar
and nor challenged the part acquittal of the
appellant in the High Court by filing any appeal.
This, therefore, attained finality.
24) In substance, the charges against both the
accused were that the appellant entered into a
criminal conspiracy with Rajinder Kumar to
demand and accept illegal bribe money of Rs.
4000/ from the ComplainantArun Kumar as a
motive or reward for showing him official favour in
the matter of installation of electricity power
connection and, in furtherance thereof, the
appellant on 28.03.1995 as also on 29.03.1995
around 11.30 AM to 11.55 AM in the DESU office
demanded Rs.4000/ from the complainant and
directed him to pay the said money to Rajinder
Kumarco accused, who accepted the said money on
his behalf.
12
25) In our considered opinion, when the charge
against both the accused in relation to conspiracy
was not held proved and both the accused were
acquitted from the said charge which, in turn,
resulted in clean acquittal of Rajinder Kumar from
all the charges under the PC Act, a fortiori , the
appellant too was entitled for his clean acquittal
from the charges under the PC Act.
26) It is not the case of the prosecution that the
appellant had conspired with another person and
even though the identity of the other person was not
established, yet the appellant held guilty for the
offence under Section 120B IPC. On the contrary,
we find that the case of the prosecution was that
the appellant conspired with one Rajinder Kumar to
accept the sum of Rs.4000/ as illegal gratification
from Arun Kumarthe complainant.
13
27) Once Rajinder Kumar so also the appellant
stood acquitted in respect of the charge of
conspiracy and further Rajinder Kumar coaccused
was also acquitted from the charges under the PC
Act, the charges against the appellant must also
necessarily fall on the ground. (
See Para 15 Bhagat
Ram vs. State of Rajasthan, (1972) 2 SCC 466).
28) Even assuming that despite the appellant
being acquitted of the charge relating to conspiracy
and notwithstanding the clean acquittal of Rajinder
Kumar from all the charges, the prosecuton failed ot
prove the charge against the appellant under
Sections 7, 13(2) read with Section 13(1)(d) of the
PC Act.
29) It is for the reason that in order to prove a case
against the appellant, it was necessary for the
prosecution to prove the twin requirement of
“demand and the acceptance of the bribe amount by
14
the appellant”. As mentioned above, it was the case
of the prosecution in the charge that the appellant
did not accept the bribe money but the money was
accepted and recovered from the possession of
Rajinder Kumar–coaccused (A1).
30) In such circumstances, there is no evidence to
prove that the appellant directly accepted the money
from the Complainant. Since the plea of conspiracy
against the appellant and Rajinder Kumar failed, it
cannot be held that money (Rs.4000/) recovered
from the possession of Rajinder Kumar was as a
fact the bribe money meant for the appellant for
holding him guilty for the offences punishable
under Sections 7, 13(2) read with 13(1)(d) of the PC
Act. It is more so when the benefit of such acquittal
from the charge of conspiracy was given to Rajinder
Kumar but was not given to the appellant.
15
31) In our view, the prosecution, therefore, failed
to prove the factum of acceptance of bribe money of
Rs.4000/ by the appellant from the Complainant
on 29.03.1995 as per the charges framed against
him.
32) Since in order to attract the rigors of Sections
7, 13(2) read 13(1)(d) of PC Act, the prosecution was
under a legal obligation to prove the twin
requirements of “demand and acceptance of bribe
money by the accused”, the proving of one alone
but not the other was not sufficient. The appellant
is, therefore, entitled for acquittal from the charges
framed against him under the PC Act too. (
See para
8 of M.K. Harshan vs. State of Kerala, (1996) 11
SCC 720)
33) In view of the foregoing discussion, the
appeal succeeds and is accordingly allowed. The
impugned judgment is set aside. The conviction and
16
the sentence awarded to the appellant under
Sections 7, 13(2) read with Section 13(1)(d) of the
PC Act by the Courts below are set aside and the
appellant is set free from the said charges.
34) If the appellant is already on bail, it is not
necessary for him to surrender.
………...................................J.
[ABHAY MANOHAR SAPRE]
...……..................................J.
[INDU MALHOTRA]
New Delhi;
October 09, 2018
17