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State Through Cbi vs Kishor Kumar Kanungo & Others on 28 May, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.Appeal No. 792/2003

Judgment reserved on : 31st January, 2018
Date of decision : 28th May, 2019

STATE THROUGH CBI ….. Appellant

Through: Ms. Rajdipa Behura, SPP for
CBI.
versus

KISHOR KUMAR KANUNGO OTHERS ….. Respondents

Through: Mr. N.S.Dalal and Ms. Toral
Banerjee, Advocates.

HON’BLE MS. JUSTICE ANU MALHOTRA

JUDGMENT

ANU MALHOTRA, J.

1. The State through the CBI vide Criminal M.A. No. 83/2003
sought leave to file the appeal against the impugned judgment dated
24.1.2003 of the learned Special Judge, Delhi in CC No. 32/1993 RC
No.50(A)/92/CBI/ACP, New Delhi vide which the three accused
arrayed as the respondents herein were acquitted in relation to the
charges framed against them of the alleged commission of offences
punishable under Section 120-B of the Indian Penal Code, 1860, read
with Section 7 and Section13(2) read with Section 13(1)(d) of the Prevention
of Corruption Act, 1988 as well as for the substantive offences
punishable under Section 17(2) read with Section 13(1)(d) of the said
enactment. Vide order dated 2.2.2003 leave to appeal was granted it

Crl.A. 792/2003 Page 1 of 27
having been observed to the effect that it was a trap case and the
respondents were allegedly caught red handed accepting the bribe. Thus
the appeal was registered as Criminal Appeal No. 792/2003.

2. The Trial Court Record was requisitioned. The appeal was
admitted vide order dated 16.8.2004, the respondents put in appearance,
surrendered before the High Court and were released on bail on their
furnishing personal bond in the sum of Rs.15,000/- with one surety of
the like amount to the satisfaction of the Trial Court. The respondent
no.1 arrayed to the appeal has expired during the pendency of the appeal
as was submitted on 16.3.2011 by the respondents No. 2 and 3 and
which factum of demise of the respondent No.1 was submitted on
29.11.2017 on behalf of the State to have been verified as per the
reconstructed Trial Court Record that has been received indicating vide
the death certificate No. 3934770 putting forth that the respondent No.1
had expired on 4.12.2009.

3. Criminal M. A. 58/2003, the application seeking condonation of
delay in filing the appeal was allowed and the delay in institution of the
appeal was condoned vide order dated 12.11.2003.

4. The impugned judgment puts forth the facts to the effect that the
complainant Qayoom Khan (PW-3), lodged a report EX.PW3/A with
the S.P.CBI, on 19.8.1992 claiming to be a resident of H. No. 258-A,
Basti Hazrat Nizamuddin, New Delhi. As per the complaint, three plots
of land comprised in Khasra No. 107/591, 108/593 and 109/594,
Jangpura, Bhogal were in the name of his father late Chand Khan and
the matter in relation to the mutation of the said properties in the name
of the legal heirs of late Sh.Chand Khan was pending with the Delhi

Crl.A. 792/2003 Page 2 of 27
Development Authority and that though mutation was done in respect
of the Plot No. 108/593 and 109/594, the mutation was not done in
respect of the third plot No. 107/59. The complainant was alleged to
have met one Mr.Gupta working as Naib Tehsildar, Mr.Kishore (A-1)
who was working as Kanungo( who has already expired), the accused
No.2 i.e. respondent No.2 Jagpal Singh working as Patwari and the
accused No.3 Ravinder K. Nagpal working as clerk in the concerned
office of the Delhi Development Authority, several times but they did
nothing. As per the averments in the complaint, PW-3 the complainant
met the Naib Tesildar Mr. Gupta in the presence of the accused Nos. 2
and 3 i.e. the respondents No. 2 and 3 herein in his office on 18.8.1992
when they told him that he would have to spend money and his work
would be done and when he, the complainant asked clarifications, the
Accused No. 2 i.e. Jagpal Singh told him that he would have to spend
Rs.500/- each for himself for A-1 Kishor (since deceased) and for
Mr.Gupta at which stage A-3 allegedly intervened to say that he would
also charge Rs.500/- and only then he would move the file. The
complainant is further alleged to have complained that when he i.e.,
PW-3 asked Mr.Gupta again, he told him that he should do what he was
being told by the others and his work would be done and the
complainant is also stated to have alleged that on enquiry as to when the
money was to be paid, he was told by them to come to the office on
20.8.1992 at about 2 p.m. with the money.

5. As recorded vide the impugned judgment on the directions of the
S.P.CBI, Ex.PW-7/A the FIR Ex.PW-7/B was registered at 1630 hours
on 20.8.1992 and the matter was entrusted to Inspector Manjit Singh

Crl.A. 792/2003 Page 3 of 27
(PW-7) for laying of the trap. The trap laying officer (TLO) (PW-7) is
stated to have arranged for the trap to be laid and had joined two
independent witnesses, namely, Sebestian Ekka (PW-4) and Arjun Dev
(PW-6) both officials of the MMTC, a public sector undertaking. The
complainant had allegedly brought Rs.2000/- in the form of the 20
currency notes of Rs.100 each (Ex.P8 to Ex.P22) and (Ex.P32 to
Ex.P36). The number of the said currency notes was recorded in the
handing over memo Ex.PW-3/B. The said currency notices were then
treated with phenolphthalein powder and demonstration of the use of
the said powder was given to the members of the said party and amongst
others pre-trap preparations were made including handing over of the
said treated notes were given to the complainant with directions that he
was to pass them on to the public servants in question on specific
demand. PW-4 was deputed to accompany the complainant as shadow
witness so as to see the transaction and hear the conversation that was
to take place and to give a signal by scratching the hairs on his head by
both hands, as soon as the transaction had been completed. Thereafter
as per the prosecution version, after the said preparations, the trap party
left the CBI office and reached the office of the DDA at Vikas Sadan,
New Delhi and the complainant and the shadow witness were sent to
make contact with the accused persons, i.e., the respondents whilst the
other members of the trap party took position in the vicinity. As per the
prosecution version when the complainant met the accused persons, the
accused persons/respondents repeated their demand of bribe and
received in turn the amount of Rs.500/- each from the hands of the
complainant. As per the prosecution version, the accused No. 1 i.e., the

Crl.A. 792/2003 Page 4 of 27
respondent No.1, who has since expired, had received the money in his
left hand and had put the money in the last lower right drawer of the
table of accused No.2 (A-2)/respondent No.2 from where it was later
recovered and A-2 after receiving the money had put the money in the
left pocket of his trousers from where it was recovered. A-3 (respondent
No.3) is alleged to have received the money in his left hand and put it
in the pocket of his trousers from where it was allegedly recovered.

6. As per the prosecution version in the charge sheet, the shadow
witness had given the pre-determined signal even before the
complainant could tender the money to Mr.D.C. Gupta, Naib Tehsildar.
As per the prosecution version, the trap party rushed in on receipt of the
signal when the three accused persons were apprehended and recoveries
were allegedly effected with the help of the independent witness PW-6.
The washes of the hands of the accused persons and of the lining of the
pockets of the trousers of A2 and A3 were taken in separate solutions
of sodium carbonate each allegedly giving positive confirmation. The
TLO is stated to have arrested the three accused and recorded what had
been described as recovery memo Ex.PW1/A prepared in the presence
of PW1 Shamim Ahmed, who was working as Dy. Director in the same
office.

7. Thereafter the trap case was further investigated into by the CBI
through Inspector Javed Shiraj (PW-8). After conclusion of
investigation, the material was placed before the sanctioning authority
PW-2 who granted sanction for prosecution vide order dated 4.11.1992
(Ex.PW2/A) and the charge sheet was filed on 3.2.1993 on which
cognizance was taken on 4.2.1993. Charges in relation to the allegations

Crl.A. 792/2003 Page 5 of 27
were framed on 24.9.1993 to which all the accused i.e. the respondents
herein pleaded not guilty and thereafter the prosecution examined eight
witnesses i.e. PW-1 Shamim Ahmad, PW-2 S.P. Jakhanwal, PW-3
Qayoom Khan, PW-4 Sebestial Ekka, PW-5 N.K.Prasad from CFSL,
PW6 Arjun Dev, PW-7 Inspector Manjit Singh, TLO and PW-8 Javed
Shiraj.

8. The three accused through their statements under Sectionsection 313
Code of Criminal Procedure, 1973, denied also having accepted any
bribe though they admitted the factum of their employment in the office
of the DDA in the aforesaid capacities as stated and also denied that the
matter related to mutation of properties.

9. The learned Trial Court, on a consideration of the evidence led,
held the entire prosecution version to be wholly doubtful and held that
it was unsafe to return a finding that the accused persons had accepted
the money from the complainant or that the same had been recovered
from their possession or at their instance on the basis of the evidence of
the complainant and the TLO.

10. The findings of the learned Trial Court are recorded to the effect:

“10. The statement of the complainant PW3 itself
rendered the story of demand of bribe to be of doubtful
origin. He would testify that he had met PW1 with regard
to the matter of mutation in respect of plot no. 107/591,
on the basis of will left behind by his father. He would
state that PW1 had advised him to contact the junior
officers, who were dealing with the file, whereupon he
had met Mr.O.P.Gauri (Asstt. Land Officer cum
Settlement Officer), who could not be examined since he
died on 12.7.98, as per report received. He would not

Crl.A. 792/2003 Page 6 of 27
clarify as to what transpired in his meeting with Mr.
Gauri and would state that he had then Mr.Gupta, Naib
Tehsildar and three accused persons . According to him
Mr.Gupta had told him that the file was with A-3,
whereafter he talked with A-3, who was sitting with A-1
A-2 at that time.

11. As per PW2, in the aforesaid meeting with the three
accused persons, A-1 had told him that he would have to
spend some amount for getting the mutation cleared and
on his enquiry it was A-1, who had told him that he will
have to pay rs.500/- each to him, to A-2, A-3 and
Mr.Gupta, Naib Tehsildar and that A-1 had told that he
would not take out the file unless he was paid some
amount. He specifies that his conversation took place on
18.8.92, when A-2 had also told him, interestingly on his
own enquiry as to whether he was demanding any money,
that he would take Rs.500/-. Above conversation is at total
variance from what was reported to CBI in the first place.
Interestingly in the complaint Ex.PW3/A the complainant
had not even alleged the presence of A-1 in his meeting
with A-2 A-3 and Mr.Gupta, in the office of DDA on
18.8.92. In the complaint he had attributed the first
assertion of the demand to Mr. Gupta, Naib Tehsildar and
the specific amount to be charged to A-2.

12. PW3 was cross examined at length about the
aforesaid material contradiction but he would insist on
the version he was narrating in the court. Since this is at
variance from what was alleged in the prosecution story
and since it amounts to deliberate improvement,
apparently with a design to show the presence of A-1 even
at the time of initial demand, serious doubts arise about
the veracity of PW3.

Crl.A. 792/2003 Page 7 of 27

13. Second most important factor, which punctured the
story of initial demand beyond repairs, arises out of
certain admissions in the statement of PW3. In cross
examination PW3 conceded that while mutation in
respect of other two plots had already been done in his
favour prior to filing of the complaint his application
about the third plot was submitted on 20.10.92. He would
plead ignorance about the fact that plot no.107/591
having been mutated in the name of Ram Saran Dass
andothers. He would state that a litigation was pending
on civil side in the Hon’ble High Court respecting the said
plot of land. He was confronted with the fact that A-1 had
recorded note on 29.1.92 in the file that since the
mutation had already been done in the names of Ram
Saran Dass and others, party be advised to approach the
court.

14. As indicated above in the post trap investigation
relevant files of DDA were also seized. The noting to
above effect is found recorded at page 14 15 in file
Ex.PW8/B, one of the files seized. This noting purports
to be under the signatures of A-1 confirming the
suggestion given to PW3. Interestingly, the Investigating
Agency having seized the record had not taken care to
even go through the same to examine its import. Had this
noting dated 29.1.92 recorded by A-1 been noticed during
investigation it would have called for some interrogation
of the complainant to find out if his complaint was
genuine or motivated. In these circumstances, I am not
prepared to brush aside the suggestion given to PW3 by
the defence that he was aware of the noting dated 29.1.92
and had felt annoyed as a result. It is apparent that the
matter of mutation of the third plot of land was held up
on account of litigation pending between the complainant
on one hand and certain other claimants of rights in the
said plot of land.

15. The complainant in the course of his statement
would concede certain criminal back ground on his party.

Crl.A. 792/2003 Page 8 of 27

He would admit that he had faced prosecution in cases of
grievous hurt, attempt to commit culpable homicide,
rioting, house tres pass and criminal intimidation. This
back ground does not add to his veracity and rather
compels one to take his word with a pinch of salt.

16. The version about what transpired during the trap
in the office of DDA also does not come out consistently
in the course of prosecution evidence. PW3 would testify
that when he accompanied by shadow witness had gone
into the office of DDA he found A-1, A-2 and A-3 sitting
in room no.16, According to him Naib Tehsildar
Mr.Gupta was also present. As per him the tables of A-1
and A-2 were lying side by side and when he had told A-1
that he had come in respect of the work of mutation, A-1
had asked him as to whether he had brought the money,
in response to which he had told him in affirmative but
had demanded his file to be taken out. He would state
that A-1 had then taken out the file, placed it on the table
and told him to notice as to how fast his file had been
taken out and that he should pay the money. He would
depose that A-3 had come to the seat of A-1 and told him
to notice as to how fast his work was being done and that
he should immediately hand over the money. PW3 states
that he then told them that he would give the money and
then had taken out the tainted money from his pocket and
gave one bundle to A-1, and the other to A-2. According
to him, A-1 took the money and put it in the bottom drawer
of the table of A-2, while A-2 took money and put it in the
right side pocket of his trousers. As per his version A-3
thereafter had demanded his share on which he had taken
out the third bundle and given it to him. He would state
A-3 took the money, counted it with both hands and then
started towards exit, while putting the notes in the pocket
of his trousers.

17. PW4 does try to corroborate but came out with a
version which does not jell well with the sequence
narrated by PW3. According to him A-1 had taken out

Crl.A. 792/2003 Page 9 of 27
the file and had told the complainant that his work was
being done and he should do his (accused’s) work, in
response to which the complainant had uttered words to
the effect that as to why he was worrying and since the
“Sahib” had called him he would “give”. Apparently
these utterances are on different lines then what has been
said by PW3. It is not clarified as to which “Sahib”PW4
was referring to. He testified that A-1 had received the
amount with left hand and put it in the drawer of the table
of A-2. According to him, A-3 had then received the
money with left hand and after counting it put it in the left
side pocket of his trousers. He would make A-2, unlike
the statement of PW3, the last recipient of the money
using his right hand though mentioning he also having
counted the money with both hands.

18. Not only the sequence was changed by PW4 but
even the utterances attributed are entirely on different
lines.

19. If A-1 had received the money in his left hand and
had immediately put it in the drawer of office table, there
would be no need for washes of his both hands being
taken and yet PW3 testifed that washes of both hands of
A-1 were taken, each turning pink in colour. PW4 on the
other hand creates further doubt by stating that washes of
left hand of A-3 and of right hand of A-2 were taken in
separate solutions. He would not talk during his
examination in chief, of washes of right hand of A-3 or
left hand of A-2. Undoubtedly he would confirm the
prosecution case in above respect when declared hostile
but when this fact was suggested to him during cross
examination by the learned prosecutor.

20. Since the money was not recovered from A-1, it was
incumbent upon the prosecution to prove as to in whose
office table money was found lying. No proper evidence
has been led in this regard as witnesses did not seem to be
aware or sure as to which official was sitting on which
table. The confusion is further confounded by PW4, who

Crl.A. 792/2003 Page 10 of 27
would state that even Naib Tehsildar Mr.Gupta was
arrested and documents in this respect were prepared and
signed by the head of the office. Learned prosecutor
claimed that no such proceedings had been recorded. But
then, this statement coming from the prosecution’s own
witness cannot be brushed aside, possibility cannot be
ruled out that even the Naib Tehsildar was arrested but
his arrest was not shown. This possibility gives rise to
serious question mark about the extent of truth in the
prosecution case.

21. The fact of recovery of the money from the pockets
of the trousers of A-2 A-3 and from the drawer of the
table of A-2 was attributed to PW-6. As per prosecution
case this was done in the presence of PW1, who is also
shown by the recovery memo to have been presant, even
at the stage when washes were taken. Both these witnesses
however, refute such role on their respective part. PW6
the independent witness taken along from the CBI office
stated that when he was taken into the office room A-1,
A-2 A-3 had already been apprehended and he was told
that they had been arrested in bribe case. He would state
CBI officials were holdings some currency notes and he
was told the same had been recovered. He was declared
hostile and cross examined by the learned prosecutor but
nothing could be brought out as could render his
statement to above of fact, during examination in chief, a
deliberate lie on his part. Similarly PW1 would also state
that when he was called by the CBI officials to the room
in question he was told that search was to be taken but he
had returned to the office room and when he returned
after about 1 ½ hours he was told that the accused
persons had been arrested. He saw them standing with
their hands up and glass lying on the table, whereupon he
had returned and later his signatures having been taken
on the recovery memo. He was also declared hostile and
cross examined but would not budge from the above
version.

Crl.A. 792/2003 Page 11 of 27

22. In the above facts and circumstances, I find it
highly unsafe to return a finding that the accused persons
had accepted the money from the complainant or that the
same came to be recovered from their possession or at
their instance, on the basis of evidence of complainant
and the TLO.

23. Benefit of doubts arising as a result must go to the
accused. They are acquitted. Their bail bonds are
discharged. File be consigned to record room.”

11. The State through its appeal has submitted that the learned Trial
Court had made a wrong comprehension of the evidence and had not
properly evaluated the evidence of PW-3 nor of PW-4 in respect of the
demand and acceptance of the recovery of bribe money. It was further
submitted by the State that PW-3 the complainant had proved the pre-
trap proceedings and submission of the written complaint Ex.PW3/A
with the CBI on 19. 8.1992 and of his having joined the trap on
20.8.1992 and having visited the office of the accused at Vikas Sadan,
DDA, along with PW-4, Sebatian Ekka, the shadow witness. It was
also submitted by the State that the conversation in Hindi clearly
revealed that A1, A2 and A3 had categorically demanded and accepted
Rs.500/- each from the complainant and the PW-4 had given a signal to
the trap party and all the accused were caught red handed. The State
through the CBI further submits that the trap money was recovered from
the possession of all the accused persons in the presence of PW-6 Arjun
Dev. However, it is essential to observe that the State has stated that
PW-6, the punch witness and PW-1 Shamim Ahmad, the Dy. Director
of the DDA, had turned hostile and had not supported the prosecution
version. PW-1 is the stated recovery witness from the DDA office and

Crl.A. 792/2003 Page 12 of 27
PW-6 is the independent recovery witness taken from the MMTC office
and as observed vide paragraph 21 of the impugned judgment, as
already reflected hereinabove, all these witnesses have refuted the
recoveries of the stated bribe money having been effected in their
presence though PW-6 stated that when he was taken into the office
room A-1(respondent No.1), A-2(respondent No.2) and A-3
(respondent No.3) had already been apprehended and he was told that
they had been arrested in the bribe case and the CBI officials were
holding some currency notes and he was told that the same had been
recovered. Though the cross-examination of this witness on behalf of
the State was also conducted but he did not aid the prosecution version.

12. Likewise PW-1, the witness from the office of the DDA, stated
that he was called by the CBI in the room. He stated that when he
reached the room, he was told that the accused persons had been
arrested and he saw them standing with their hands up and glass was
lying on the table whereafter he had returned and later his signatures
were taken on the recovery memo. This witness despite having been
cross-examined on behalf of the State, CBI, did not corroborate the
prosecution version at all.

13. Reliance was placed on behalf of the appellant, the CBI, on the
verdict of the Hon’ble Supreme Court in SectionGuru Singh v. State of
Rajasthan; AIR 2001 S.C. 330, to contend that the Court could rely
upon the part of the testimony of the witness if the deposition was found
to be credit worthy and it is further essential to consider in each case
whether in the result of such cross-examination and contradiction the
witness stands discredited or is believable. The CBI has further

Crl.A. 792/2003 Page 13 of 27
contended that there is evidence on the record regarding passing of the
currency notes from the complainant to the accused/ respondents
accompanied by the conversation in this behalf, which was heard by the
shadow witness and there is no material discrepancy with regard to the
place and the manner in which the bribe was offered to the
accused/respondents and accepted by them. It has been submitted on
behalf of the CBI that the voluntary acceptance of money was proved
by the complainant and the shadow witness and thus that the testimonies
of the prosecution witnesses that the accused demanded the bribe cannot
be disbelieved as their evidence was corroborated by the fact of
acceptance of bribe by the accused persons.

14. The CBI also placed reliance on the provision of Section 20 of
the Prevention of Corruption Act, 1988 which reads to the effect:

“20. Presumption where public servant accepts
gratification other than legal remuneration.–
(1) Where, in any trial of an offence punishable under
section 7 or section 11 or clause(a) or clause (b) of sub-
section (1) of section 13 it is proved that an accused
person has accepted or obtained or has agreed to
accept or attempted to obtain for himself, or for any
other person, any gratification (other than legal
remuneration) or any valuable thing from any person,
it shall be presumed, unless the contrary is proved, that
he accepted or obtained or agreed to accept or
attempted to obtain that gratification or that valuable
thing, as the case may be, as a motive or reward such
as is mentioned in section 7 or, as the case may be,
without consideration or for a consideration which he
knows to be inadequate.

(2) Where in any trial of an offence punishable under
section 12 or under clause (b) of section 14, it is proved
that any gratification (other than legal remuneration)

Crl.A. 792/2003 Page 14 of 27
or any valuable thing has been given or offered to be
given or attempted to be given by an accused person, it
shall be presumed, unless the contrary is proved, that
he gave or offered to give or attempted to give that
gratification or that valuable thing, as the case may be,
as a motive or reward such as is mentioned in section
7, or as the case may be, without consideration or for a
consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections
(1) and (2), the court may decline to draw the
presumption referred to in either of the said sub-

sections, if the gratification or thing aforesaid is, in its
opinion, so trivial that no interference of corruption
may fairly be drawn.”,

to contend that in as much as the bribe money was recovered from the
accused persons, the burden shifts on them to explain the circumstances
to prove their innocence and reliance in relation thereto was placed on
behalf of the CBI on the verdict of the Hon’ble Supreme Court in the
case SectionM.Narsingha Rao v. State of Andhra Pradesh; AIR-2001 SC 318
submitting to the effect that where receipt of gratification was proved
the Court was under a legal obligation to presume that such gratification
was accepted as a reward for doing public duty.

15. Respondents No. 2 and 3 through their written submissions that
have been submitted on their behalf reiterated that they were innocent
and had been falsely implicated and that there was no infirmity
whatever in the impugned judgment and that the testimonies of the
prosecution witnesses were wholly infirm and had not brought forth the
factum of allegations made through the charge farmed against them of
having demanded any bribe or having received any bribe money from
the complainant.

Crl.A. 792/2003 Page 15 of 27

16. It has been submitted on behalf of the respondents No. 2 and 3
that the admission of illegal gratification having not been proved, the
accused/ respondents could not have been convicted. It has also been
submitted on behalf of the respondents that the improbability of the
prosecution version is brought forth from the factum that the averments
made in the FIR are different from the version put forth by the witnesses
through their statements made in the Court. It has thus been submitted
on behalf of the respondents that there is no infirmity in the impugned
judgment.

17. Reliance was also placed on behalf of the respondent Nos. 2 and
3 on the verdict of the Supreme Court in SectionT.K.Ramesh Kumar v. State
through Police Inspector, Bangalore; (2015) 15 SCC 629, to contend
that the demand of illegal gratification having not been established and
likewise, the recovery of the allegedly treated money also having not
been established, the respondents have been rightly acquitted by the
learned Trial Court. Reliance was also placed on SectionB.Jayaraj v. State of
Andhra Pradesh,; (2014) 13 SCC 55 to submit that in the instant case
there was no proof of illegal gratification, much less was there any proof
of the demand and thus in the absence of the same, the legal
presumption under Section 20 of the Prevention of Corruption Act,
1988 cannot be drawn and has rightly not been drawn. Reliance was
also placed on behalf of the respondent on the verdict of the High Court
of Gujarat in SectionRamanbhai Ashabhai Chauhan v. State of Gujarat;
2015 Crl.L.J. 3812, to contend that in view of the testimonies of PW-1
and PW-6, who have categorically stated that no recoveries were effected in
their presence, the alleged recovery of the bribe money from the respondent

Crl.A. 792/2003 Page 16 of 27
at their behest cannot be held to have been established even beyond a
reasonable doubt and much less to the hilt.

ANALYSIS

18. At the outset, it is essential to observe that though the Trial Court
Record was though requisitioned in the instant case, the same has been
received in the re-constructed form and as indicated vide proceedings
dated 24.11.2011 of the learned Special Judge the Trial Court Record
has been reconstructed to the extent that it could be reconstructed in as
much as the statements of the prosecution witnesses examined in Court,
the statements under Section 313 of the Cr.P.C. of the accused and
statements of the defence witnesses are not available on the
reconstructed record in as much as they were not available with the CBI
as well. No further reconstruction of the record has been conducted
thereafter as learnt through information received on 27.05.2019 from
the learned trial Court vide letter No.128-B dated 27.05.2019.

19. Be that as it may, this Court thus can now only consider the
submissions that have been made on behalf of either side on the basis
of the analysis and reproduction to the extent made by the learned trial
Court vide the impugned judgment dated 24.01.2003 as also the
assertions that have been made by the appellant through its appeal in
relation to the statements of the witnesses.

20. It is further essential to observe that though it is undoubtedly true
that as contended on behalf of the appellant whilst placing reliance on
the verdict of the Hon’ble Supreme Court in Gura Singh Vs. The State
of Rajasthan (supra) that even if a witness has not completely
supported the prosecution version, nevertheless the entire testimony of

Crl.A. 792/2003 Page 17 of 27
the said witnesses cannot be discredited and can still be believed in
relation to the part of the testimony of the witnesses to the extent that it
is found creditworthy, it is further essential to observe that the same has
to be read as a relative effect on the testimony and essentially
corroboration of the said testimony is required through the testimony of
other reliable witnesses as has been laid down by the Hon’ble Supreme
Court in SectionAttar Singh vs. State of Maharashtra 2013I AD (SC) 92
wherein it has been observed vide para 13 of the said verdict to the
effect:

“13. We have meticulously considered the arguments
advanced on this vital aspect of the matter on which
the conviction and sentence imposed on the appellant
is based. This compels us to consider as to whether the
conviction and sentence recorded on the basis of the
testimony of the witness who has been declared hostile
could be relied upon for recording conviction of the
accused-appellant. But it was difficult to overlook the
relevance and value of the evidence of even a hostile
witness while considering as to what extent their
evidence could be allowed to be relied upon and used
by the prosecution. It could not be ignored that when a
witness is declared hostile and when his testimony is
not shaken on material points in the cross-
examination, there is no ground to reject his testimony
in toto as it is well-settled by a catena of decisions that
the Court is not precluded from taking into account the
statement of a hostile witness altogether and it is not
necessary to discard the same in toto and can be relied
upon partly. If some portion of the statement of the
hostile witness inspires confidence, it can be relied
upon. He cannot be thrown out as wholly unreliable.
This was the view expressed by this court in the case of
SectionSyed Akbar vs. State of Karnataka reported in AIR
1979 SC 1848 whereby the learned Judges of the

Crl.A. 792/2003 Page 18 of 27
Supreme Court reversed the judgment of the
Karnataka High Court which had discarded the
evidence of a hostile witness in its entirety. Similarly,
other High Courts in the matter of SectionGulshan Kumar vs.
State (1993) Crl.L.J. 1525 as also SectionKunwar vs. State of
U.P. (1993) Crl.L.J. 3421 as also SectionHaneefa vs. State
(1993) Crl.L.J. 2125 have held that it is not necessary
to discard the evidence of the hostile witness in toto
and can be relied upon partly. So also, in the matter of
SectionState of U.P. vs. Chet Ram reported in AIR 1989 SC
1543 (1989) Crl.L.J. 1785; it was held that if some
portion of the statement of the hostile witness inspires
confidence it can be relied upon and the witness cannot
be termed as wholly unreliable. It was further
categorically held in the case of SectionShatrughan vs. State
of M.P. (1993) Crl.L.J. 3120 that hostile witness is not
necessarily a false witness. Granting of a permission
by the Court to cross-examine his own witness does not
amount to adjudication by the Court as to the veracity
of a witness. It only means a declaration that the
witness is adverse or unfriendly to the party calling him
and not that the witness is untruthful. This was the view
expressed by this Court in the matter of SectionSat Paul vs.
Delhi Administration AIR 1976 SC 294. Thus, merely
because a witness becomes hostile it would not result
in throwing out the prosecution case, but the Court
must see the relative effect of his testimony. If the
evidence of a hostile witness is corroborated by other
evidence, there is no legal bar to convict the accused.
Thus testimony of a hostile witness is acceptable to the
extent it is corroborated by that of a reliable witness.
It is, therefore, open to the Court to consider the
evidence and there is no objection to a part of that
evidence being made use of in support of the
prosecution or in support of the accused.

21. It is undoubtedly equally true in view of the verdict of the
Hon’ble Supreme Court in M. Narsinga Rao vs. State of Andhra

Crl.A. 792/2003 Page 19 of 27
Pradesh (supra) and SectionB. Hanumantha Rao vs. State of Andhra Pradesh
(Supra) in terms of Section 20(1) of the Prevention of Corruption Act,
1988 if it is in any trial of an offence punishable under Section 7 or
Section 11 or Clause (a) or Clause (b) of sub-section (1) of Section 13
if it is proved that an accused person has accepted or obtained or has
agreed to accept or attempted to obtain for himself, or for any other
person, any gratification other than legal remuneration or any valuable
thing from any person, it shall be presumed, unless the contrary is
proved, that he accepted or obtained or agreed to accept or attempted to
obtain that gratification or that valuable thing, as the case may be, as a
motive or reward such as is mentioned in Sectionsection 7 or, as the case may
be, without consideration or for a consideration which he knows to be
inadequate. It cannot however be overlooked that it has to be essentially
observed that the factum of the acceptance or obtaining or agreement
by the accused to accept or to obtain for himself, or for any other person,
any gratification (other than legal remuneration) or any valuable thing
from any person has to be proved at trial and the mandatory
presumption as in terrarium i.e. in tone of a command as held in M.
Narsinga Rao (supra) can thus be put into play only if the condition for
drawing such a legal presumption under Section 20 is established as
laid down vide para 14 thereof of the said verdict which reads to the
effect:

“14.When the sub-section deals with legal
presumption it is to be understood as in
terrarium i.e. in tone of a command that it has to
be presumed that the accused accepted the
gratification as a motive or reward for doing or

Crl.A. 792/2003 Page 20 of 27
forbearing to do any official act etc., if the
condition envisaged in the former part of the
section is satisfied. The only condition for
drawing such a legal presumption under Section
20 is that during trial it should be proved that
the accused has accepted or agreed to accept
any gratification. The section does not say that
the said condition should be satisfied through
direct evidence. Its only requirement is that it
must be proved that the accused has accepted or
agreed to accept gratification. Direct evidence
is one of the modes through which a fact can be
proved. But that is not the only mode envisaged
in the SectionEvidence Act.”

22. It is equally true that as observed by the Hon’ble Supreme Court
in para 15 of the said verdict, the word ‘proof’ needs to be understood
in the sense in which it is defined in the SectionEvidence Act because proof
depends upon the admissibility of evidence and that the ‘proof’ of the
facts depends upon the degree of probability of its having existed and
that ‘proof’ does not mean proof to rigid mathematical demonstration,
because that is impossible and must mean such evidence as would
induce a reasonable man to come to a particular conclusion as held in
Fletcher Moulton L.J. in Hawkins vs. Powells Tillery Steam Coal
Company Ltd. 1911 (1) KB 988 referred to with approval in para 15 of
the verdict in M. Narsinga Rao (supra). The observations in paras 15,
16 17 of the said verdict read to the effect:

“15. The word proof need be understood in the sense
in which it is defined in the SectionEvidence 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

Crl.A. 792/2003 Page 21 of 27
consider 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 SectionEvidence
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 vs. Powells Tillery
Steam Coal Company, Ltd. [1911 (1) K.B. 988]
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.

16. The said observation has stood the test of time and
can now be followed as the standard of proof. In
reaching the conclusion the court can use the process
of inferences to be drawn from facts produced or
proved. Such inferences are akin to presumptions in
law. Law gives absolute discretion to the court to
presume the existence of any fact which it thinks likely
to have happened. In that process the court may have
regard to common course of natural events, human
conduct, public or private business vis-à-vis the facts
of the particular case. The discretion is clearly
envisaged in Section 114 of the Evidence Act.

17. Presumption is an inference of a certain fact
drawn from other proved facts. While inferring the
existence of a fact from another, the court is only
applying a process of intelligent reasoning which the
mind of a prudent man would do under similar

Crl.A. 792/2003 Page 22 of 27
circumstances. Presumption is not the final
conclusion to be drawn from other facts. But it could
as well be final if it remains undisturbed later.
Presumption in Law of Evidence is a rule indicating
the stage of shifting the burden of proof. From a
certain fact or facts the court can draw an inference
and that would remain until such inference is either
disproved or dispelled.”

23. The verdict of the Hon’ble Supreme Court in C.K. Damodaran
Nair Vs. Govt. of India; AIR 1997 S.C. 551, relied upon on behalf of
the appellant would aid the appellant only in the event of it being
concluded that the recovery of the alleged tainted bribe money having
been effected from the accused persons/respondents herein as observed
hereinabove, the statements of witnesses recorded during trial are not
available despite all efforts made by the District Courts for retrieval of
the same even through reconstruction and are not available with the CBI
authorities.

24. In the circumstances, the observations that are made by the
learned trial Court in relation to the testimonies of the 18 prosecution
witnesses examined have to be read as put forth in the impugned judgment.

25. Taking the same into account, it is brought forth that a very
material aspect of the prosecution version which relates to the aspect
that the entire commission of the offence was in relation to the mutation
to be effected on the records of the Delhi Development Authority in
relation to Plot No.107/591 situated at Jungpura, Bhogal, New Delhi
which the complainant Qayum Khan claimed was in his father’s name
and on the demise of his father were to be mutated to the names of the
legal heirs apart from the mutation in relation to the plots bearing

Crl.A. 792/2003 Page 23 of 27
nos.108/593 109/594 similarly situated. As observed elsewhere
hereinabove, mutation in relation to plot nos.108/593 109/594 had
already been effected. Para 13 of the impugned verdict already
reproduced elsewhere hereinabove clearly depicts that mutation of the
plots bearing nos. 108/593 109/594, Jungapura, Bhogal had
already been effected in the name of the complainant Qayum Khan
even before he lodged his complaint in relation to the third plot i.e.
107/591 which was submitted on 20.10.1992.

26. Strangely, the incident alleged in the instant case of the trap
having been laid is of the date 20.08.1992. The complainant had
pleaded ignorance about the facts that the plot in question bearing
no.107/591 had been mutated in the names of Ram Saran Das and
others and stated that a litigation was pending on the civil side in this
Court in relation to the said plot of land and had thus also been
confronted during cross examination of the accused no.1 (since
deceased) having recorded a note on 29.01.1992 in the file that since
mutation had already been done in the names of Ram Saran Das and
others, the party be advised to approach the Court. Apparently, the
complainant has to be presumed to have had knowledge of the factum
of there being a dispute in relation to the mutation of the plot bearing
no.107/591 in his name in as much as it had already been mutated in
the name of Ram Saran Das and others in relation to which civil
litigation was pending in this Court and the accused no.1 had
recorded a note on 29.01.1992 much prior to the incident alleged in
the instant case which took place on 20.08.1992 and that the party be
advised to approach the Court.

Crl.A. 792/2003 Page 24 of 27

27. It has thus rightly been observed by the learned trial Court to the
effect that this aspect punctures the story of initial demand beyond
repairs which arises out of the admissions made in the statement of PW-
3, the complainant. The learned trial Court has categorically observed
vide para 14 of the impugned judgment to the effect as rightly observed
that this noting dated 29.01.1992 on the file of the DDA recorded at
pages 14 15 of the file Ex.PW8/B which file had been seized was
under the signatures of accused no.1 (since deceased) confirming the
suggestion given to PW-3 that accused no.1 had recorded the note on
29.01.1992 that since the mutation had already been in the name of Ram
Saran Dass, the parties be advised to approach the Court and that the
Investigating Agency had not taken care despite seizure of the said
record to go through the same to examine its import and that if this
noting dated 29.01.1992 recorded by accused no.1 had been noticed
during investigation, it would have called for some interrogation of the
complainant to find out if the complaint was genuine or motivated and
that the learned trial Court rightly held that in these circumstances, it
was not prepared to brush aside the suggestion given to PW-3 by the
defence that he was aware of the noting dated 29.01.1992 and felt
annoyed as a result.

28. The learned trial Court has also rightly observed vide para 14 of
the impugned judgment that the matter of mutation of the third plot of
land was held up on account of litigation pending between the
complainant on one hand and certain other claimants of rights in the
said plot of land.

Crl.A. 792/2003 Page 25 of 27

29. The analysis of the evidence made in paras 16, 17, 18, 19, 20, 21,
22 23 of the evidence of the prosecution witnesses which paragraphs
had already been reproduced elsewhere hereinabove bring forth the
complete inconsistency in the alleged occurrence of the incident. In the
circumstances that PW-1, the Deputy Director of the DDA and PW-6,
the independent panch witness, both have not corroborated the
prosecution version in relation to the recoveries of the tainted money
allegedly recovered from the accused persons, the recovery of tainted
money from the three accused persons does not stand proved. Merely
because, the witnesses have been cross examined on behalf of the CBI
per se does not suffice to bring forth that their testimonies vide which
they stated that the recoveries of the tainted money were not effected in
their presence were not true. Rather, the testimonies of these two
witnesses are categorical that no searches and no recoveries were
effected from the residence in their presence.

30. The impugned judgment indicates that PW-4 Mr. Sabestian
Ekka, the shadow witness had stated that even the Naib Tehsildar, Mr.
Gupta had been arrested in the instant case and documents were
prepared and signed by the head of the office but the CBI through its
learned prosecutor claimed that no such proceedings had been recorded.
In these circumstances, the observations in para 20 of the impugned
verdict that in view of this statement of the prosecutrix witness, the
possibility of the Naib Tehsildar having been arrested with his arrest not
having been shown cannot be ruled out and that that raises a serious
question mark about the extent of truth in the prosecution case, cannot
be faulted with and suffices to render the prosecution version wholly

Crl.A. 792/2003 Page 26 of 27
doubtful in the circumstances of the case, in as much as the recoveries
of the tainted money from the respondents cannot be held to have been
established beyond a reasonable doubt and much less to the hilt. Thus,
the requisite presumption under Section 20 (1) of the SectionPrevention of
Corruption Act, 1988 cannot be drawn in the instant case.

CONCLUSION

31. The impugned judgment, in the circumstances, calls for no
interference. The appeal is dismissed.

32. The bail bonds and surety bonds of the respondent nos.2 3 are
discharged. The appeal against the respondent No.1 due to his demise
abates.

ANU MALHOTRA, J.

th
MAY 28 , 2019
sv/vm

Crl.A. 792/2003 Page 27 of 27

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