The High Court
Case Details
THE HIGH COURT OF MEGHALAYA AT SHILLONG. CRL.APPL.NO.(SH)10/2009 Sri. Sushil Kumar Gupta, S/o Late J.S. Gupta, R/o Dhanketi, P.S. Laitumkhrah, District: East Khasi Hills, Shillong. -Vs- :::: Appellant/Accused The Central Bureau Investigation. :::: Respondent. BEFORE THE HON’BLE MR JUSTICE T NANDAKUMAR SINGH For the Appellant/Accused For the Respondent Date of hearing Date of Judgment & Order : : : : Mr. S.P. Mahanta, Adv Mr. V.K. Jindal, Sr. Adv Mr. S Dey, Adv. 09.05.2013 23.07.2013 (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:9)(cid:9)(cid:9)(cid:9) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12) This appeal is directed against the judgment and order dated 23.06.2009 convicting the accused/appellant under Section 7 as well as Section 13(1)(d)(i) read with Section 13(2) of the P.C. Act and sentencing him to undergo rigorous imprisonment of 6 months and fine of Rs.10,000/- in default of payment thereof and further imprisonment of 2 months for the offence under Section 7 of the P.C. Act and further sentenced to undergo imprisonment for 1 year and imposition of fine of Rs.20,000/- in default thereof to undergo further imprisonment for 4 months for the offence under Section 13(1)(d)(i) of the P.C. Act. CRL.APPL.NO.(SH)10/2009 Page 1 of 52 2. Heard Mr. S.P. Mahanta, learned counsel appearing for the appellant/accused and Mr. VK Jindal, learned senior counsel appearing for the respondents-CBI. 3. The prosecution case is miraculously mentioned in the impugned judgment and order dated 23.06.2009. However, for appreciation of the evidence for the prosecution and also to see if the sufficient materials have been made out by the appellant/accused for interfering the impugned judgment and order dated 23.06.2009, a gist of the prosecution case is recapitulated as under:- 3.1. The contract work for the construction of hospital building for 200 bedded hospital expansion and services projects of the NEIGRIHMS at Shillong was awarded to the Engineering Projects (India) Limited (for short “EPIL”) by the Hospital Services Consultancy Corporation (for short “HSCC”) representing the NEIGRIHMS vide P.O. No.CAL/MMD/358/013IV dated 02.12.2002. The accused/appellant is the Senior Manager in HSCC at Shillong. The NEIGRIHMS project was divided into four packages:- (i) Housing (ii) 300 bedded hospital (iii) 200 bedded hospital expansion and (iv) Nursing College, Auditorium etc. 3.2. The contract work at Package No.3 i.e. 200 bedded hospital expansion was with the EPIL, the proximate value was Rs.62 crores and the contract work of Package No.4 awarded to the Unity Infra Project was of the proximate value of Rs.27 crores. The appellant/accused, Shri.S.K. Gupta, was in- charged for the Packages No.1 & 3. The contract work of the Package No.3 awarded to the EPIL was again sub-contracted to the M/s Parekh Premier Private Limited, Kolkatta (for short “PPPL”) by the EPIL. For payment of any item of the work, PPPL submitted under R/A Bill to the EPIL, who in its turn again CRL.APPL.NO.(SH)10/2009 Page 2 of 52 submitted to the HSCC. The HSCC made the payment to the EPIL and in its turn released the R/A Bill to the PPPL. The execution of the contract work by the PPPL consists of excavation of hard rock and ordinary rock. The PPPL submitted the 14th R/A Bill for the month of March, 2004 amounting to Rs.7,87,520.75/-, which includes the claim for excavation of hard rock – 1159.71 cubic meters @ Rs.380/- cubic meter amounting to Rs.4,40,689/- of the EPIL. There was a difference of payment between hard rock and ordinary rock for the sum of Rs.2,76,300/-. The EPIL in its turn submitted their 18th R/A Bill for the month of March, 2004 to the HSCC, which includes the 14th R /A Bill of PPPL. The said bill for the hard rock was checked and certified by the appellant/accused, Mr. S.K. Gupta. 3.3. Shri.Jayanta Kumar Dhar, PW 1 filed a written complaint dated 04.08.2004 to the Superintendent of Police, CBI, Guwahati, Assam against the appellant/accused, Shri.S.K. Gupta, Senior Manager (Tech) HSCC, Shillong, alleging that the said contract of the PPPL with the EPIL is back to back basis as they are having with HSCC. Hence, the payment of any item to the PPPL shall be released by the EPIL only after they get the payment from the HSCC. The payment was made to the EPIL, who in its turn made the payment after certified by the appellant/accused Shri.S.K. Gupta, being the Senior Manager (Tech) of the HSCC. During the execution of the work, PPPL had excavated substantial quantity of hard rock which is much beyond the quantity stipulated in the bill of the PPPL. With great difficulty and persistent request by the PPPL to the appellant/accused Shri.S.K. Gupta, he had certified the quantity and the PPPL received the payment of the hard rock R/A Bill of March, 2004 from the EPIL. Immediately, after receiving the payment by the PPPL, the appellant/accused Shri.S.K. Gupta, had started asking the complainant (PW 1) as well as PW 3 Shri.Rajiv Menon to pay 60% of the amount released against the hard rock, otherwise, he would create problem in the smooth execution of the work. The CRL.APPL.NO.(SH)10/2009 Page 3 of 52 said 60% of the amount released against the hard rock comes about Rs.1.25 lakhs. Finally, on 28.04.2004, the complainant Shri.Jayanta Kumar Dhar, PW 1, had a talk with the appellant/accused, Shri.S.K. Gupta over telephone from his Kolkatta Office to the appellant/accused Shri.S.K. Gupta at his residence telephone at Shillong. The appellant/accused Shri.S.K. Gupta, further demanded 60% of the amount received by the PPPL on account of hard rock excavation and asked the complainant to pay the amount to the tune of Rs.1.25 lakhs at the earliest. On the request of the complainant, the appellant/accused finally agreed for payment in installments and directed to pay the first installment immediately through Mr.Rajiv Menon (PW 3) in his office. The complainant Shri.Jayanta Kumar Dhar (PW 1) mentioned to him that Rs.25,000/- will be paid as first installment and the rest after getting the payment against the bills. The complainant PW 1 as well as his Managing Director decided not to pay the bribe to the appellant/accused, as such the complaint filed a complaint with the Superintendent of Police, CBI, Guwahati for taking necessary action in this regard. After receipt of the said complaint, a case being CBI ACB, Guwahati Case No. R.C. 16(A)/2004-GWH was registered against the appellant/accused,
Legal Reasoning
in 1988 Supp SCC 241: 1988 SCC (Cri) 559 this Court in par 13 of the report observed (SCC petitioner. 246-47) “The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception of observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into and its vast experience of men and matters in difference cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such facts, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The Court, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. “ 15. True, as noticed above, there are lapses, but the question that arises for consideration is whether any prejudice has been caused by reason of such lapse; if the answer thereto is in the affirmative, CRL.APPL.NO.(SH)10/2009 Page 22 of 52 obviously it have a serious impact on the trial but if in the event, however, it is in the negative, no prejudice can be said to have been caused and correspondingly question of the trial being vitiated would not arise. The eyewitnesses account as available on record cannot but be termed to be trustworthy and by reason thereof, the lapses stand overshadowed by the testimony of the eyewitnesses. The observation above obtain support from the decision of this Court in Baleshwar Mandal Vs. State of Bihar reported in (1997) 7 SCC 219 : 1997 SCC (Crl) 1042 : AIR 1997 SC 3471. 12. This Court is not oblivious that being the first appellate court has to observe and re-appreciate the statements of the PWs and exhibited documents, more particularly, when we cannot pursue ourselves to concur the findings of the trial court. In the present case, this Court is in complete agreement with the findings of the trial court in the impugned judgment and order dated 23.06.2009 passed in Special (CBI) Case No.4/2004. Regarding this point, reference may be made to the decision of the Apex Court in Ramakant Rai vs. Madan Rai & Ors: (2003) 12 SCC 395, wherein the Apex Court held that “when the appellate Court concurs with the views of the trial court the necessity for elaborately dealing with various aspects may not always be necessary. But when a view contrary to that of the trial court is expressed, it is imperative that reasons therefor should be clearly indicated. There is no scope for any departure from this basic requirement. As stated above, this Court happily concurs with the view of the trial court in the impugned judgment and order dated 23.06.2009 passed in Special (CBI) Case No.4/2004. 13. PW 1, Shri. Jayanta Kumar Dhar states that the contract work for construction of 200 bedded hospital expansion and services was awarded to the EPIL by the HSCC and the EPIL sub-contracted the portion of the said work to the PPPL under the work order marked as Ext.1. The portions of the work sub- contracted to the PPPL were for construction of hospital block for 200 bedded CRL.APPL.NO.(SH)10/2009 Page 23 of 52 hospital expansion and services project of NEIGRIHMS at Shillong. The contract amount was Rs.2,41,52.959. The hospital block is a four storied building and the scope of work consist of excavation, superstructure and other finishing items. The said contract with the EPIL is on back to back basis as they are having terms and conditions with the HSCC. The PPPL submitted the bill to the EPIL and the EPIL released the payment to the PPPL after they get payment from the HSCC for those particular items as mentioned in the bill by the PPPL. Actually, the EPIL bill was being certified for releasing payment by the appellant/accused Shri.S.K. Gupta, the then Senior Manager Technical HSCC, Shillong. The EPIL got the contract from the HSCC and the EPIL gave the PPPL sub-contract for the said works. The PPPL submitted the 14th R/A Bill (Ext.5) to the EPIL for the work done from 01.03.2004 to 31.03.2004. The said 14th R/A Bill of the PPPL include the amount of Rs.4,40,689.80 for the excavation of 1159.71 cubic meters of hard rock @ Rs.380/- per cubic meters. There is a difference of rate for the hard rock and the ordinary rock. The rate for excavation for ordinary rock is only Rs.230/- per cubic meters. PW 1 further stated that the difference in balance payment between the hard rock and the ordinary rock for the said amount of work i.e. 1159.71 cubic meters is Rs.2,66,733.30. The said 14th R/A Bill submitted to the EPIL, who in its turn again submitted to the HSCC under the 18th R/A Bill which includes not only the said 14th R/A Bill of the PPPL and also other work. R/A Bill 18th which includes the R/A Bill 14th was exhibited as Ext.14. The said Ext.14 was certified by the appellant/accused. 14. Immediately, after getting the payment of the said bills i.e. Ext.5 from the EPIL, PPPL started getting reminders from the appellant/accused for paying him 60% of the difference in payment between hard rock and ordinary rock. The appellant/accused demanded payment of 60% of the difference between hard rock and ordinary rock on the plea that the PPPL got the said payment on his certificate that the PPPL had excavated the hard rock of 1159.71 CRL.APPL.NO.(SH)10/2009 Page 24 of 52 cubic meters. On 28.07.2004, he contacted the appellant/accused Shri.S.K. Gupta over telephone from Kolkatta to discuss some official matters at his residence in Shillong. The appellant/accused Shri.S.K. Gupta in course of his discussion asked him why payment was not made to him as asked by him and he also further asked him to pay Rs.1,25,000/-. In reply, he informed him that it is not possible but he (appellant/accused) was insisting him for the said amount. Since the appellant/accused was insisting for payment, he (PW 1) told him that the PPPL will pay to him the said amount by way of installments. Initially, the appellant/accused refused to accept the said illegal gratification by way of installments but on his repeated discussion, he (appellant/accused) agreed to receive the said amount in installment and thereafter, much discussion, the first installment was fixed at Rs.25,000/-. It was also decided over telephonic discussion between the PW 1 and the appellant/accused that the said amount of Rs.25,000/- will be paid to him through site accountant of the PPPL Shri.Rajiv Menon (PW 3) at Shillong. It was also decided that the rest demanded amount will be paid to him against receipt of subsequent bills. But the PPPL did not agree to make any payment and the Company decided to refer the matter to the CBI for necessary action. Thereafter, on 04.08.2004, PW 1 lodged a complaint (Ext.6). 15. PW 1 further stated that after lodging the said complaint with the Superintendent of Police, CBI, Guwahati, he asked him to contact the in-charge of CBI, Shillong Unit. On 05.08.2004 early in the morning, he reached Shillong and contacted the CBI Office, Shillong at 11:45 am and met the CBI in-charge Shillong Unit. The CBI in-charge Shillong Unit called other CBI officials and two civilians (independent witnesses) namely, Shri.Gilbert Sohtun (PW 13) and Shri.Jangkholal Gangte (PW 14). Shri.Rajiv Menon (PW 3) was with him when he went to the CBI Office, Shillong Unit. In the presence of CBI officials and witnesses, he narrated the complaint and pleaded for necessary action against the appellant/accused. Thereafter, a decision was taken in the CBI Office that a CRL.APPL.NO.(SH)10/2009 Page 25 of 52 trap will be laid against the appellant/accused Shri.S.K. Gupta. In presence of the CBI Officials and the said two civilians, Shri.Rajiv Menon (PW 3) produced the currency notes for the sum of Rs.25,000/-to be paid as bribe money. The said amount of Rs.25,000/- consisting of 42 Nos. of Rs.500/- denomination notes and 40 Nos. of 100 denomination notes. Thereafter, the CBI personnel noted down the Nos. of the currency notes and the currency notes were tainted with phenolphthalene powder for the demonstration purpose. After treatment of the said notes for the purpose of demonstration one note was given to Shri.Jangkholal Gangte (PW 14) for touching with his fingers of the said tainted note and thereafter, he was asked to put his fingers in a solution of sodium carbonate and immediately that solution turned into pink. Thereafter, the pink solution of sodium carbonate was put inside a bottle which was packed and sealed in his presence and witnesses. Mt.Ext.1 is the said bottle containing pink solution. 16. Thereafter, the treated notes of Rs.25,000/- were handed over to Shri.Rajiv Menon (PW 3) for making payment as demanded by the appellant/accused. Shri.Rajiv Menon (PW 3) kept the said amount in the front pocket of his pant. Shri.Rajiv Menon (PW 3) was also told by the CBI officials that the payment of the said tainted notes are to be made only on demand by the appellant/accused. Witness Shri.Gilbert Sohtun (PW 13) was also instructed to follow Shri.Rajiv Menon (PW 3) closely so that he (PW 13) can hear the conversation between the appellant/accused and Shri.Rajiv Menon (PW 3) and also to see the transaction, if any, between them. Shri.Rajiv Menon (PW 3) was also instructed to give signal by way of rubbing his face, immediately after handed over the tainted money as an illegal gratification to the appellant/accused Shri.S.K. Gupta. Thereafter, Shri.Rajiv Menon (PW 3) gave a ring to the mobile of the appellant/accused Shri.S.K. Gupta from the CBI Office. Prior to that a blank cassette was demonstrated in the presence of witnesses and on being CRL.APPL.NO.(SH)10/2009 Page 26 of 52 satisfied with the blank cassette, it was inserted in the recording machine to record the conversation between Shri.Rajiv Menon (PW 3) and the appellant/accused Shri.S.K. Gupta in presence of all and accordingly, the conversation between Shri.Rajiv Menon (PW 3) and the appellant/accused Shri.S.K. Gupta was recorded. The conversation was translated and recorded in a piece of paper. The CBI produced one cassette under seal cover with wax seal bearing five signatures of witnesses and written on the top of envelope No.16/2004 No.199/2004(3) containing one cassette “recorded cassette voice of Shri.S.K.Gupta (appellant/accused) and Shri.Rajiv Menon (PW 3)”. The envelope containing the said cassette with the permission of the Court in presence of public prosecutor Shri.Komal Giri and defence counsel Shri.S.P.Mahanta and appellant/accused Shri.S.K. Gupta, was opened by In-charge CBI Shillong Unit Ng.Khamrang to play the cassette before the court to determine whether it is audible or not. The cassette is the brand of T-Series HQ 90, audio tape also bears the signatures of witnesses. The cassette was played in a tape recorder brought by the CBI in the open court in presence of the prosecution counsel, defence counsel and the appellant/accused. It was found that inside the envelope, the cassette was further wrapped in a white paper cloth. The said cassette was played by the CBI in the open court and was found to be audible. PW 1 also exhibited the Pre-Trap Memorandum containing six pages which is exhibited as Ext.8. The audio cassette played by the prosecution in the open court, PW 1 recognized the voice of Shri.S.K.Gupta (appellant/accused) and that of Shri.Rajiv Menon (PW 3). The statement of PW 1 inspite of subjecting him to a lengthy cross examination could not be demolished. PW 1 stated in his cross examination that “it is not mentioned in the agreement that after receipt of the payment from HSCC, the EPIL will release the payment to the PPPL. It is a fact that the EPIL used to submit the bills to the HSCC for their work including their bills. The bills submitted by the EPIL are to be scrutinized by the officers of the HSCC. CRL.APPL.NO.(SH)10/2009 Page 27 of 52 17. PW 3 Shri.Rajiv Menon states that the PPPL had a contract with the EPIL, Shillong for expansion of the hospital block at NEIGRIMS, Mawdiangdiang, Shillong and the EPIL had a contract with the HSCC. The PPPL had a sub-contract from EPIL on back to back basis however, that was not mentioned in the contract document, as the main contract was between HSCC and EPIL. PPPL used to submit the bill to the EPIL, the EPIL used to forward the bill to the HSCC. The bills were certified by the appellant/accused Shri.S.K.Gupta, the then Senior Manager Technical of the HSCC. Ext.5 i.e. 14th R/A Bill for hard rock certified by the appellant/accused was for excavation of 1159.71 cubic meters @Rs.380/- per cubic meters. The bill was released in the month of April, 2004 by the EPIL. There was a difference of payment between the hard rock and the ordinary rock. The difference of payment between hard rock and the ordinary rock was for a sum of Rs.2,76,000/-. The payment was released in the month of April, 2004 in regard to the difference of ordinary rock and hard rock i.e. Rs.2,76,000/-. The appellant/accused Shri.S.K.Gupta demanding 60% of Rs.2,76,000/- after releasing the said amount, the demand was for Rs.1,75,000/-. Shri.S.K. Gupta (appellant/accused) demanded 60% of the amount released from him and his senior officer Shri.Jayanta Kumar Dhar (PW 1). The appellant/accused was demanding money and since he did not get the money, he started creating problem to their Company and in some occasions, he demanded money from him when he met him at the site. Thereafter, the PPPL decided to lodge a complaint with the CBI against the appellant/accused Shri.S.K.Gupta. A verbal agreement arrived between the PW 1 and the appellant/accused that the demanded brine money will be paid in installments for Rs.25,000/- each. A complaint Ext.6 was lodged with the CBI, Guwahati by Shri.Jayanta Kumar Dhar (PW 1). He further stated that he was told by the management to give bribe money of Rs.25,000/- to the appellant/accused Shri.S.K.Gupta. On 05.08.2004, he went to the CBI Office, Shillong at about CRL.APPL.NO.(SH)10/2009 Page 28 of 52 11:00 am and met the CBI officials, namely, Shri.Haryiat and Shri.Khamrang (PW 18), beside him, PW 1 and two independent witnesses, namely, Shri.Gilbert Sohtun (PW 13) and Shri.Jangkholal Gangte (PW 14) were present in the CBI office. CBI officials instructed them how the money to be paid to the appellant/accused. Thereafter, he placed Rs.25,000/- , which he had brought from the Bank under the instruction from his Company (PPPL) at Kolkatta. The said Rs.25,000/- includes 42 Nos. of 500/- denomination notes and the rest in 100 denomination notes. The number of the said notes were written in a piece of paper and the notes were treated with phenolphalaene powder. PW 14 with his right hand touched the tainted notes. Thereafter, Shri.Jangkholal Gangte (PW 14) dipped his fingers in a sodium carbonate which turned into pink colour. The said solution was put inside a bottle and was packed and sealed in their presence. He put his signature on the body of the bottle. Mt.Ext.1 is the said bottle, Mt.Ext.1/1 is his signature. 18. Thereafter, he was searched physical by the CBI officials as well as by the said two independent witnesses and thereafter, only the tainted notes of Rs.25,000/- are handed over to him. Thereafter, the tainted notes of Rs.25,000/- were kept in the left side of his front pant pocket. Further he was instructed by the CBI officials to give the money to the appellant/accused only on demand of bribe and further, he had been instructed to give signal by rubbing his right side of his cheek only when money was handed over to the appellant/accused on demand. The independent witness Shri.Gilbert Sohtun (PW 13) was also instructed by the CBI officials to follow him (PW 3) closely to overhear the conversation between the PW 3 and the appellant/accused and to observe the transaction, if any, between the PW 3 and the appellant/accused. PW 3 further stated that he was asked by the CBI officials to give ring to Shri.S.K. Gupta (appellant/accused) to ascertain where he desired to take the money i.e. illegal gratification. Before contacting the appellant/accused over the mobile phone, the CRL.APPL.NO.(SH)10/2009 Page 29 of 52 CBI officials played a blank cassette in front of the independent witnesses. Thereafter, the cassette was fixed in the tape recorder and one speaker was also attached with the telephone. He spoke and contacted the appellant/accused from his mobile phone from the CBI office through their landline telephone and the conversation was recorded accordingly in the said blank cassette. After recording, the conversation was also reduced in writing. Ext.7 is the contents of the said conversation which bears the signature of the witnesses. In the CBI office, Pre-Trap Memorandum was prepared regarding the said proceeding which is exhibited as Ext.8, which bears their signatures. In the CBI office all the persons washed their hands with soap and water. The said cassette in which the conversation was recorded was packed and sealed in a separate envelope in presence of all the persons present in the CBI office at the time of preparation of the Pre-Trap Memorandum. After preparation of the Pre-Trap Memorandum, they left the CBI office and visited Delhi Mistan Bhandar at Police Bazar, Shillong. After reaching Delhi Mistan Bhandar, he sat inside the restaurant along with CBI officials occupied the surrounding seats along with the other two independent witnesses. After 10-15 minutes, the appellant/accused did not turn up there and after sometime, he saw the appellant/accused standing outside the Delhi Mistan Bhandar. Shri.Hariyadha CBI, Inspector instructed him to go where Shri.S.K.Gupta (appellant/accused) was standing, then he paid Delhi Mistan Bhandar bill and moved towards Police Point where the appellant/accused first demanded the said money. He told him that he cannot move around with this money, for this, he sat inside Delhi Mistan Bhandar. 19. Then the appellant/accused asked where is the money and he told him that the money is with him, so the appellant/accused asked him to pay the money and also said that the vehicle of the appellant/accused was parked in a parking lot at Police Bazar. Then PW 3 and the appellant/accused moved towards the parking lot where Shri.Gilbert Sohtun (PW 13) was keeping a close CRL.APPL.NO.(SH)10/2009 Page 30 of 52 watch to them along with other CBI officials. After reaching the parking lot, the appellant/accused again demanded the money. He took out the money from his left front pant pocket with his right hand and handed over the same to the appellant/accused. The appellant/accused accepted the money with his right hand and transferred it to his left hand and put the money in his left front pocket of his trouser. Thereafter, he gave pre-arrange signal by rubbing his cheek, then the CBI officials came towards them and caught his both hands after identifying themselves. CBI officers asked the appellant/accused why he accepted bribe. Thereafter, CBI officials took the appellant/accused to CBI office for further interrogation. In CBI office both hands of the appellant/accused were dipped in separate solution of sodium carbonate which turned into pink. The said solution were transferred in two separate bottles, packed and sealed by me (PW 3) and others. Shri. Gilbert Sohtun (PW 13) was asked to search the appellant/accused and in course of search, PW 13 recovered the said bribe money from the left front pocket of the pant of the appellant/accused. Thereafter, the said recovered money was compared with the numbers and denominations mentioned in the Pre-Trap Memorandum (Ext.8) and found to be tallied. The said notes were packed and sealed in an envelope in his presence and he signed on the body of the said envelope. Mt.Ext.7 is the money inside the envelope. PW 3 further stated that the left front side pocket of the pant of the appellant/accused was dipped in a separate solution of sodium carbonate and the solution turned pink. The said solution was also put inside the bottle and was packed and sealed in his presence. Ext.9 is the said bottle. The pant of the appellant/accused was also seized and packed and sealed in a separate packet which was marked as Mt.Ext.10. Mt.Ext.10/1 is his signature. 20. PW 13 Shri.Gilbert Sohtun states that during August, 2004, he was posted and functioning as Inspector of Income Tax in the office of the Addl. Commissioner of Income Tax, Shillong. On the instruction of the Commissioner CRL.APPL.NO.(SH)10/2009 Page 31 of 52 of Income Tax, Shillong, he attended the CBI office, Shillong on 05.08.2004 at about 11:30 am. He met the CBI Inspector and went inside the room at CBI office. One witness Shri.Jangkholal Gangte (PW 14) was also present there. There were some persons also. Then the CBI official told them about the some secret operation. The CBI official explained to them how and what is to be done. Thereafter, one written complaint was given to him and the said complaint (Ext.6), and he read out the contents of the said complaint in front of all the persons present there. Thereafter, demonstration was made as to how the phenolphalaene powder was to be applied in the currency notes brought by Shri.Rajiv Menon(PW 3). The currency notes brought by PW 3 was an amount of Rs.25,000/- which consists of.500/- and 100/- denominations notes and 500 notes were 42 in nos. and 100 notes 40 in nos. The numbers of the currency notes were noted in a piece of paper. After application of phenolphalaene powder in the currency notes, were handed over to Shri.Rajiv Menon (PW 3). Before handing over the said notes to Shri.Rajiv Menon (PW 3), Mr.Jangkholal Gangte (PW 14) was allowed to touch it with his right hand. The right hand fingers of PW 14 was dipped in a solution of sodium carbonate, which turned to pink. Shri. Rajiv Menon (PW 3) was instructed to hand over the said tainted notes to the appellant/accused only on demand and not otherwise and he (PW 13) was instructed by the CBI to remain close with Rajiv menon (PW 3) and to hear the conversation between the PW 3 and the appellant/accused and also to see or observe the transaction, if any, between the PW 3 and the appellant/accused. Shri.Rajiv Menon (PW 3) was also been instructed by the CBI officials, if the appellant/accused demand and takes the money, then Shri.Rajiv Menon (PW 3) was to give signal by rubbing his face with right hand. Thereafter, in the CBI office, CBI personnel brought a tape recorder and blank sealed audio cassette which was played before them and found to be blank. Shri.Rajiv Menon (PW 3) contacted the appellant/accused over telephone and their conversation was recorded in the said blank audio cassette. The conversation recorded in the CRL.APPL.NO.(SH)10/2009 Page 32 of 52 cassette was also reduced in writing in a piece of paper in Hindi. PW 13 further stated that a Pre-Trap Memorandum (Ext.8) was also prepared. 21. PW 13 further stated that after preparation of the Pre-Trap Memorandum (Ext.8) and other formalities, they proceeded to Police Bazar and entered a restaurant called Delhi Mistan Bhanda and while waiting for the appellant/accused, he ordered for a cup of tea. They waited about 10/15 minutes but the appellant/accused did not turn up. One of the CBI officials waited outside the restaurant and came back and informed Shri.Rajiv Menon (PW 3) that one person is waiting outside the restaurant. Listening this, Shri.Rajiv Menon (PW 3) went outside the restaurant and they followed him from behind and saw that he had started talking with a person and the said person who was waiting outside the restaurant started walking towards the Police Point. Shri.Rajiv Menon (PW 3) started talking with a person (the witness identified as appellant/accused Shri.S.K. Gupta) and he also heard the conversation between Shri.Rajiv Menon (PW 3) and the appellant/accused Shri.S.K.Gupta. The appellant/accused asked Rajiv Menon (PW 3) that he supposed to get the money from Shri.Jayanta Kumar Dhar (PW 1). Thereafter, the appellant/accused asked Shri.Rajiv Menon (PW 3) “where is the money? Is it inside the car”, PW 3 replied that the money was in his pocket. Thereafter, PW 3 and the appellant/accused proceeded towards Police Bazar parking lot. PW 3 further stated that on reaching the parking lot (MUDA Complex) both of them came to a halt and the appellant/accused asked PW 3 to give the money to him. Accordingly, Shri.Rajiv Menon (PW 3) gave the money to the appellant/accused which he was carrying on the left front pocket of his pant. The appellant/accused accepted the said money. PW 13 also had seen that the appellant/accused received the money by his right hand and thereafter, he transferred it to his left hand and put it inside his left front pant pocket. Immediately, after the transaction, Shri.Rajiv Menon (PW 3) gave pre-arrange signal by rubbing his face with his right hand. Immediately, the CBI officials held CRL.APPL.NO.(SH)10/2009 Page 33 of 52 both hands of the appellant/accused after disclosing their identity and took him to the CBI office, Shillong by a vehicle. On reaching the CBI office again a solution of sodium carbonate was prepared and the appellant/accused was asked to dip his left hand on the said solution and the solution turned to be pinkish in colour. Another sodium carbonate was also prepared similarly asked the appellant/accused Shri.S.K.Gupta to dip his right hand which turned to be pinkish in colour. Thereafter, right hand wash solution of the appellant/accused was poured in a clean bottle and was packed and sealed in their presence. The said solution was marked as Mt.Ext.6. 22. PW 13 further stated that the CBI officials asked the appellant/accused where he kept the money and he replied that he kept the money in the left hand side of the pocket of his pant. Thereafter, the CBI personnel asked to take out the money from his pocket and accordingly, the appellant/accused took out the money from his left hand pocket. Thereafter, he and the CBI officials counted the money and checked the currency notes and found tallied with the currency notes mentioned in the Pre-Trap Memorandum. Thereafter, the recovery notes was packed and sealed in a packet. The appellant/accused was asked to take out his pant and he had been given a cloth to cover himself and accordingly, he took out his pant and another solution was prepared and thereafter, left hand side pocket of the pant of the appellant/accused from where the money was recovered was dipped in a solution i.e. sodium carbonate solution and turned to pinkish in colour and transferred a solution in a clean bottle which was packed and sealed. Finally another Post Trap Memorandum was prepared mentioning all the incident after the preparation of the Pre-Trap Memorandum. He also signed on the Post Trap Memorandum i.e. Ext.12. The statement of PW 13 could not be demolished inspite of subjecting him to a lengthy cross examination by the defence counsel. CRL.APPL.NO.(SH)10/2009 Page 34 of 52 23. PW 14 Shri.Jangkholal Gangte states that during August, 2004, he was posted and functioning as Programme Executive in All India Radio, Shillong. On 05.08.2004, he was picked up by the CBI officers from his residence for undisclosed mission. When we reached the CBI office, Shillong, the CBI officials narrated the purpose for which he had been called for and there also he met one person called Rajiv Menon (PW 3), who stated before him that one Shri.S.K.Gupta (appellant/accused) working in an organization i.e. HSCC for constructing the building at NEIGHRIMS asked money as bribe. There were CBI officials and one Shri.Jayanta Kumar Dhar (PW 1) and another independent witness Shri.Gilbert Sohtun (PW 13) were also present there. After narrating the mission, the CBI officials brought some powder and informed him that if this powder is touched by a person and dip in a solution it will turn into different colours. Thereafter, some money was brought by Shri.Rajiv Menon (PW 3) and the said powder was applied over the currency notes. After applying the powder on the said currency notes, the said tainted notes was packed in a paper and handed over to Shri.Rajiv Menon (PW 3). Shri.Rajiv Menon (PW 3) was asked to contact the appellant/accused and to hand over the money to him. He was also further instructed by the CBI officials that when the appellant/accused taken the money from him, he should give signal to the CBI officials by rubbing his face. Thereafter, the CBI officials brought the tape recorder and also a blank audio cassette, which was verified by them and found to be blank. Then PW 3 contacted the appellant/accused over telephone from the CBI office and thereafter, the conversation between the appellant/accused and the PW 3 was recorded in the said blank audio cassette in their presence. The conversation recorded in the audio cassette was played before them. The contents of the conversation were also reduced in writing (Ext.7) and the officials also prepared a Pre-Trap Memorandum which he and others signed the Memorandum (Ext.8). With the permission of the court in presence of prosecution, defence counsel, the appellant/accused, the packet of Mt.Ext.2 was reopened for the purpose of taking CRL.APPL.NO.(SH)10/2009 Page 35 of 52 out the audio cassette where the conversation was recorded for the purpose of playing the same in the court room. Mt.Ext.2 also bears his signature. 24. On reaching Delhi Mistan Bhandar, Police Bazar they were waiting along with Shri.Shri.Rajiv Menon (PW 3) for the appellant/accused Shri.S.K.Gupta, who did not enter the Delhi Mistan Bhandar, Shillong. After sometime, Rajiv Menon (PW 3) noticed Shri.S.K.Gupta (appellant/accused) was waiting outside the Delhi Mistan Bhandar and Shri.Rajiv Menon (PW 3) followed Shri.S.K. Gupta (appellant/accused) and they also followed both the PW 3 and the appellant/accused towards the parking lot, Police Bazar. Shri.Jangkholal Gangte (PW 14) followed Shri.S.K.Gupta (appellant/accused) and Shri.Rajiv Menon (PW 3), there was a distance between him as such, and he could not hear the conversation between the appellant/accused and the PW 3. PW 14 further stated that there were tussled between the appellant/accused and the CBI officials and thereafter, the appellant/accused was taken to CBI office and also he heard before reaching the spot at parking lot that transaction took place. After reaching the CBI office, the appellant accused Shri.S.K. Gupta was asked to take out the money from his pocket and thereafter, his hand was dipped into a solution which turned pink in a different colours as demonstrated before laying the trap and the hand of the appellant/accused was washed with a solution and the solution were kept in two bottles which were packed and sealed. He identified those bottles on production as Mt.Ext.5 and 6 respectively. He also identified his signature on the Mt.Ext.5 and 6 respectively. The currency notes were removed from the pocket of the appellant/accused and verified and found to be tallied with the numbers of denominations mentioned in the Pre-Trap Memorandum (Ext.8). The said notes were also packed and sealed. 25. With the permission of the court in presence of the prosecution, defence counsel and appellant/accused, he reopened the packet of Mt.Ext.7 for CRL.APPL.NO.(SH)10/2009 Page 36 of 52 the purpose of identification. On opening of the packet, he found the envelope in which the currency notes was packed. He further stated that the pant pocket of the appellant/accused from which the money was recovered was dipped in a solution which turned in different colours. The pocket pant solution was also packed and sealed in a bottle which was marked as Mt.Ext.9. He also identified his signature. He further stated that the audio cassette was played in the open court and he confirmed the said conversation recorded in a blank cassette in his presence and in the present of other independent witness, namely, Shri.Gilbert Sohtun (PW 13). He also further confirmed that the said conversation on telephone between the appellant/accused and the PW 3 and the said conversation was recorded on 05.08.2004. On 05.11.2004 in the CBI office in presence of four other persons, the cassette Mt.Ext.2 was opened and played for the purpose of identification of the voice of the appellant/accused. The cassette was packed and resealed. He also further stated that that the Post Memorandum was also prepared. Later on, PW 14 was declared hostile on the prayer of the prosecution. 26. The Apex Court in Koli Lakhmanbhai Chanabhai vs. State of Gujarat, AIR 2000 SC 210 held that the evidence of the hostile witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. By Section 9 of the Criminal Law (Amendment) Act, 2005 (Act No.2 of 2006) sub-section (2) has been inserted to Section 154 of the Evidence Act. Section 9 of the Criminal Law (Amendment) Act, 2005 (No.2 of 2006) read as follows:- CHAPTER – IV AMENDMENT OF THE INDIAN EVIDENCE ACT, 1872. CRL.APPL.NO.(SH)10/2009 Page 37 of 52 9. Amendment of Section 154 of Act 1 of 1872 – In the Indian Evidence Act, 1982, Section 154 shall be numbered as sub-section (1) thereof and after sub-section (1) as so numbered, the following sub-section shall be inserted, namely:- “(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.” 27. The Apex Court in Prithi vs. State of Haryana: (2010) 8 SCC 536, held that the testimony of hostile witness is useful to the extent to which it supports the prosecution case. When a witness is declared hostile and cross- examined with permission of court, his evidence remains admissible and there is no legal bar to record a conviction upon his testimony, if corroborated by other reliable evidence. Paras 24, 25, 26 and 27 of the SCC in Prithi’s case (Supra) read as follows:- “24. As regards the evidence of PW 6, it was vehemently contended by the learned senior counsel for the appellant that his evidence should be either accepted as it is or rejected in its entirety. PW 6 had deposed that he lodged the FIR; he was injured in the incident; he saw a White Gypsy at the place of the incident and that some persons came out of ambush and fired shots as a result of which he sustained injuries and Ami Lal died. It is true that he did not name the assailants. The fact that an incident occurred in which he sustained injuries and Ami Lal died is amply established by his evidence as well. That PW6 sustained injuries is also established from the evidence of Dr. Ajay Kumar (PW1) who medically examined him immediately after the incident. Merely because he did not name the assailants, his evidence cannot be thrown overboard in its entirety. 25. Section 154 of the Evidence Act, 1872 enables the court in its discretion to permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Some High Court had earlier taken the view that when a witness is cross-examined by the party calling him, his evidence cannot be believed in part and disbelieved in part, but must be excluded altogether. However, this view has not found acceptance in later decisions. As a matter of fact, the decisions of this court are to the contrary. In Khujji v. State of MP: (1991) 3 SCC 627: 1991 SCC (Cri) 916, a three-Judge bench of this Court relying upon earlier decisions of this Court in Bhagwan Singh v. State of Haryana (1976) 1 SCC 389: 1976 SCC (Cri) 7, Rabindra Kumar Dey v. State of Orissa : (1976) 4 SCC 233 : 1976 SCC CRL.APPL.NO.(SH)10/2009 Page 38 of 52
Arguments
Shri.S.K. Gupta, Senior Manager (Tech) HSCC, Shillong under Section 7 of the PC Act, 1988. 3.4. As the matter relates to payment of bribe by a public servant, it was considered necessary that a trap for catching of the appellant/accused red handed, while demanding and accepting bribe from the complainant, was necessary. A trap team consisting of: (i) S/Sh.V.L. Hriata, Inspector, CBI:ACB: Guwahati, CBI:ACB:Guwahati (ii)Ng.Khamrang, Inspector, CBI:ACB:Guwahati- PW 18 (iii) K.R.Kabui, Sub-Inspector, CBI:ACB:Guwahati (iv)Amal Chakraborty, P.C., CBI:ACB:Guwahati (v)E.Lyngdoh, P.C., CBI:ACB:Shillong Unit (vi) Gilbert Sohtun, Inspr.Income Tax, Shillong-PW 13 (vii)Jangkholal Gangte, Programme Executive, AIR, Shillong-PW 14 (viii)Shri.Jayant Dhar, S./Project Manager, M/s CRL.APPL.NO.(SH)10/2009 Page 4 of 52 Parekh Premier Pvt. Ltd. – PW 1 and (ix)Rajiv Menon, Accounts In-charge of M/s Parekh Premier Pvt. Ltd. – PW 3, assembled in the CBI: ACB, Office, Shillong on 05.08.2004 at 11:45.00 hrs and a Pre-Trap Memorandum was prepared (Ext.No.8). The said persons assembled in the Office were explained the purpose for trap and they had been made to understand that the complaint dated 04.08.2004 was received from the complainant, Shri.Jayanta Kumar Dhar (PW 1). The contents of the complaint were read over to all persons present. The complainant Shri.Jayanta Kumar Dhar (PW 1) confirmed the complaint, its content and his signature on it. The said persons assembled had been informed that a trap for catching Shri.S.K. Gupta, appellant/accused red handed while demanding and accepting bribe from the complainant was necessary. The complainant, Shri.Jayanta Kumar Dhar (PW 1) had told that Shri.Rajiv Menon (PW 3), their officials in Shillong will be contacting the appellant/accused, Shri. S.K. Gupta with the bribe amount on behalf of the Company (PPPL) and accordingly, Shri.Rajiv Menon (PW 3) attended the CBI, Office and confirmed that he had brought the money of Rs.25,000/- for making payment to Shri. S.K. Gupta, appellant/accused. Shri.Rajiv Menon (PW 3) produced a sum of Rs.25,000/- for payment as demanded by the appellant/accused, Shri.S.K. Gupta as bribe in currency notes having denomination and numbers mentioned in the Pre-Trap Memorandum. 3.5. To the aforesaid persons, who were assembled at the time of preparation of the Pre-Trap Memorandum, use of phenolphthalene powder and its re-action with the sodium carbonate solution was explained. The phenolphthalene powder when reacts with sodium carbonate solution even in traces, the colour of the solution turned pink. For the purpose of demonstration, a portion of the phenolphthalene powder was taken on a paper. The same was applied on the aforesaid notes by Shri.Amal Chakraborty in presence of all. No one else touched the powder. The remnant phenolphthalene powder was packed CRL.APPL.NO.(SH)10/2009 Page 5 of 52 in the paper itself and kept in an envelope which was signed and sealed by all. The sealed envelope had been marked as “A”. Witness Sh.Jangkholal Gangte (PW 14) was asked to touch the currency notes applied with the phenolphthalene powder, which he did with his right hand. Solution of sodium carbonate was prepared in a clean glass with water and Sh.Jangkholal Gangte (PW 14) was asked to dip his fingers with which he had touched the currency notes into the solution. No sooner did Sh.Jangkholal Gangte (PW 14) dip his fingers into the solution, the solution turned pink. The solution was kept in a clean bottle, which was sealed and signed by all. The sealed bottle was marked as “B”. 3.6. Then, the tainted currency notes were given to Shri. Rajiv Menon (PW 3) with instruction to keep the same in the front pocket of the jean he was wearing and to hand over the same to Shri. S.K. Gupta (appellant/accused) only on demand and not, otherwise. He was further instructed to keep the aforesaid currency notes with him except few amounts in his other pockets for meeting his expenses on tea/snacks. Witness Shri.Gilbert Sohtun (PW 13) was asked to accompany Shri.Rajiv Menon (PW 3) closely and hear the conversation between Shri.Rajiv Menon (PW 3) and the appellant/accused Shri.S.K. Gupta attentively and also to watch the money transaction. Shri.Rajiv Menon (PW 3) was also instructed that when the money was passed on to Shri.S.K. Gupta (appellant/accused) on demand, he should give signal by rubbing his face with his right hand. All the other members of the team were asked to separate themselves around the place and to see the transaction and hear the conversation as far as possible. All the persons then washed their hands with soap and water. In order to further ascertain the demand and to record the same in the electronic media, Shri.Rajiv Menon (PW 3) was instructed to ring up to Shri.S.K. Gupta (appellant/accused) and ascertain his availability in his office. As Shri.S.K. Gupta (appellant/accused) was reported out of the office at about 13:30 hrs, Shri.Rajiv Menon (PW 3) contacted the appellant/accused Shri.S.K. Gupta CRL.APPL.NO.(SH)10/2009 Page 6 of 52 on the mobile phone. A new and unused audio cassette (T-series HQ-90 audio tape) opened in presence of the witnesses. The cassette was played on both side and was found blank. This was confirmed by witness Shri.Gilbert Sohtun (PW 13) and Sh.Jangkholal Gangte (PW 14) by recording their voices as under:- “I am Shri.Gilbert Sohtun. This cassette was played before me and found blank.” “I am Sh.Jangkholal Gangte. This cassette was played before me and found blank.” The cassette was inserted in the recording system connected with tape recording device with speaker so that all present could hear the conversation. Thereafter, Shri.Rajiv Menon (PW 3) was asked to talk to Shri.S.K. Gupta (appellant/accused). The cassette was then rewinded and replayed. It contained the aforesaid voices of the witnesses and conversation between Shri.Rajiv Menon and the appellant/accused, Shri. S.K. Gupta. The conversation of which was also recorded in hand writing as per Annexure-1 to the Pre-Trap Memorandum. At the end the voices as under were recorded by the witnesses: “I am Shri.Gilbert Sohtun. The aforesaid recording was done in my presence.” “I am Shri.Jangkholal Gangte. The aforesaid recording was done in my presence.” A copy of the aforesaid conversation was obtained in a separate cassette for day to day investigation. The cassette (T-series HQ-90 audio tape) was signed by all and kept in an envelope which was sealed and signed by all. CRL.APPL.NO.(SH)10/2009 Page 7 of 52 3.7. As per their conversation, Shri.S.K. Gupta (accused/appellant) had required Shri.Rajiv Menon (PW 3) to come to Delhi Mistan Bhandar within 10(ten) minutes, the trap team left for the place immediately at about 13:40 hrs. The said contents of the Pre-Trap Memorandum were read over to all and it has been signed by all present. The specimen of the seal with which the aforesaid exhibits were sealed was given at the margin. The aforesaid trap team reached at Delhi Mistan Bhandar, Police Bazar at about 13:50 hrs. Shri. Jayanta Kumar Dhar, Senior Project Manager of PPPL, could not accompany as he was not felling well. Shri. Rajiv Menon (PW 3) took a seat facing the entrance of the said restaurant on the ground floor. The other members took the seats nearby inside the restaurant so that Shri.Rajiv Menon (PW 3) could remain in view of all. But Shri. S.K. Gupta (appellant/accused) did not turn up till 14:15 hrs. Shri.V.L. Hriata came out of the restaurant and informed others that a man in blue shirt was standing outside as if waiting for someone. Accordingly, Shri. Rajiv Menon (PW 3) was asked to check if the said person was Shri. S.K. Gupta (appellant/accused). Thereafter, Shri.Rajiv Menon (PW 3) came out Shri.V.L. Hriata, Inspector, Shri. Ng.Khamrang, Inspector (PW 18) and the witnesses came out closely following Shri.Rajiv Menon (PW 3) so that the conversation could be overheard. After seeing Rajiv Menon (PW 3), Shri. S.K. Gupta (appellant/accused) came towards him and said, he had been waiting outside for quite sometime and Shri. Rajiv Menon said to him that he had also been waiting for the appellant/accused inside the restaurant because with this much money in his pocket, he could not walk on the road freely. Thereafter, both of them walked towards the right side of the restaurant and they were followed by the witnesses and the other team members closely. Shri.S.K. Gupta (appellant/accused) asked Shri.Rajiv Menon (PW 3) “where is the money, is it in the car? Shri.Rajiv Menon (PW 3) replied that the money was in his pocket. Shri. S.K. Gupta (appellant/accused) took Shri.Rajiv Menon (PW 3) towards right side and turning towards the car parking area in Police Bazar, Shillong. Shri.S.K. Gupta CRL.APPL.NO.(SH)10/2009 Page 8 of 52 (appellant/accused) asked for the money by saying O.K. give. Thereafter, Shri.Rajiv Menon (PW 3) took out the money from his left pocket of his jean pant with right hand and gave it to Shri.S.K. Gupta (PW 3). Shri.S.K. Gupta (appellant/accused) accepted with his right hand and transferred to his left hand and kept the same in his left pant front side pocket and thereafter, at about 14:25 hrs, Shri.Rajiv Menon (PW 3) rubbed his face with his right hand as per pre- arranged signal. Thereupon, Shri.V.L. Hriata and Shri.Ng.Khamrang alongwith other members rushed and challenged Shri.S.K. Gupta (appellant/accused) after disclosing their identities for having demanded and accepted an illegal gratification of Rs.25,000/- from Shri.Rajiv Menon (PW 3). At this, Shri. S.K. Gupta (appellant/accused) turned pale, perplexed and could not offer any explanation for the same. Both the hands of Shri.S.K. Gupta (appellant/accused) were held at his writs. As it was a public place and immediately, the people around started crowding around, it was not possible to continue further proceedings at the spot. Shri.S.K. Gupta (appellant/accused) was immediately taken into the vehicle of CBI and brought to CBI Office at Oakland, Shillong at about 14:30 hrs. 3.8. After reaching CBI, Office, Shri.S.K. Gupta (appellant/accused) was again asked about the demand and acceptance of illegal gratification by him. Still Shri.S.K. Gupta (appellant/accused) could not reply anything. Thereafter, a solution of sodium carbonate was prepared by Shri.K.R. Kabui, Sub-Inspector in a clean glass of water and Shri.S.K. Gupta (appellant/accused) was asked to dip his left hand fingers in the solution which Shri.S.K. Gupta (appellant/accused) did. Upon his doing so, the solution turned pink, which was witnessed by all present. This pink solution was transferred into a clean glass bottle which was sealed and signed by all and marked “Left Hand” for the purpose of identification. Thereafter, another solution of sodium carbonate was prepared in a separate clean glass of water by Shri.K.R. Kabui, Sub-Inspector and Shri. S.K. Gupta CRL.APPL.NO.(SH)10/2009 Page 9 of 52 (appellant/accused) was asked to dip his right hand fingers in the water. Shri.S.K. Gupta (appellant/accused) did so and the solution immediately turned pink. This solution was also transferred to a clean glass bottle which was sealed and signed by all and marked as “Right Hand” for identification. Thereafter, Shri.S.K. Gupta (appellant/accused) was asked as to where did he keep the money. Shri.S.K. Gupta (appellant/accused) replied that it was kept in his left hand side pocket of the pant he was wearing. Witness Shri.Gilbert Sohtun (PW 13) was asked to check the said pocket. Shri.Gilbert Sohtum (PW 13) accordingly, checked the pocket of Shri.S.K. Gupta (appellant/accused) and took out the G.S. notes out of Shri.S.K. Gupta (appellant/accused) pocket in presence of all the members. Witness Shri.Gilbert Sohtun (PW 13) and Shri.Jangkholal Gangte (PW 14) were asked to check the denominations and the numbers of the recovered G.C. notes and whether they tallied with the denominations and numbers mentioned in the Pre-Trap Memo. Both the witnesses confirmed that the denominations and numbers of the G.C. notes tallied fully with that mentioned in the Pre-Trap Memo. These G.C. notes were kept in an envelope sealed and signed by all present and it was marked “Tainted Bribe Money Rs.25,000/-.” Thereafter, Shri. S.K. Gupta (appellant/accused) was asked to take off his pant which he did. He was offered a chadar (cloth) to put around his waist. A fresh solution of sodium carbonate was prepared by Shri.Kabui, Sub-Inspector in another clean glass of water. The left hand pocket of the pant of Shri.S.K. Gupta (appellant/accused) was washed in the said solution and the solution instantly turned pink. This pink solution was transferred to another clean glass bottle which was sealed and signed by all and marked as “Left Pocket Washed of Pant” for identification. The pant of Shri.S.K. Gupta (appellant/accused) was also taken into Police possession which was kept in an envelope sealed and signed by all and marked “Pant of Shri.S.K. Gupta (appellant/accused) “for the purpose of identification. CRL.APPL.NO.(SH)10/2009 Page 10 of 52 3.9. Shri.S.K. Gupta (appellant/accused) could not offer any explanation regarding demand and acceptance of Rs.25,000/- from Shri.Rajiv Menon (PW 3). As such, he was arrested at 16:00 hrs. A separate personal search memo and arrest memo were prepared. The wife of Shri.S.K. Gupta (appellant/accused) namely Smt.Sunita Gupta was intimated over telephone. In the meantime, Deputy Manager of HSCC, Shillong came to CBI Office and he was also intimated about the arrest of Shri.S.K. Gupta (appellant/accused). Inspector Shri.Ng.Khamrang (PW 18) was deputed to conduct searches the residence of Shri.S.K. Gupta (appellant/accused). A fresh pant was sent from the house of Shri.S.K.Gupta (appellant/accused) for wearing which was given to Shri.S.K. Gupta(appellant/accused). Immediately after arrest, Shri.S.K. Gupta (appellant/accused) was sent for medical examination through Shri.Amal Chakraborty, PC to Civil Hospital, Shillong. A rough sketch map of the place of occurrence was also drawn by Shri.K.R. Kabui indicating the various positions of the trap team members including the two independent witnesses i.e. Shri.Gilbert Sohtun (PW 13) and Shri.Jangkholal Gangte (PW 14). The Post Trap Memorandum was prepared containing the above facts and read over to all and signed by all present. Specimen of the seal with which the various exhibits are sealed as mentioned in Memo was given in the Post Trap Memo. Sanction order for prosecution being No.HSCC/Vig(I)/0157 dated 14.07.2005 was accorded under Section 19(i) (C) of the Prevention of Corruption Act, 1988 for prosecution of the appellant/accused Shri.S.K. Gupta for the aforesaid offences punishable under Section 7 and Section 13(2) r/w Section 13 (i) (d) of the P.C. Act, 1988 and any other offences for the fact mentioned in the sanction order and also for taking cognizance by a court of competent jurisdiction. After completing the investigation, charge sheet was submitted before the Special Judge (CBI), Shillong, who framed the charges after perusal of the charge sheet as well as after hearing the parties. The charges, so framed, against the appellant/accused read as follows:- CRL.APPL.NO.(SH)10/2009 Page 11 of 52 “Special Case No.4/2004 C H A R G E I, Shri. Sudip Ranjan Sen, Special Judge CBI, Shillong do hereby charge you Shri.S.K. Gupta, Senior Manager, HSCC India Ltd. as follows:- Firstly, that you on 04.08.2004 a complaint was lodged against you to CBI by Shri.Jayanta Dhar, Senior Manager M/s Parekh Premier Private Limited that you had illegally demanded bribe for 60% of the payment received by P.P.P.L. against excavation of Hard Rock, amounting to Rs.1.25 lakhs, and on request by the complainant you agreed to receive the bribe money in installment basis and first installment was fixed at Rs.25,000/- through one Shri.Rajiv Menon. And on 05.08.2004 you were caught red handed after accepting the illegal gratification of Rs.25,000/- and the said bribe money consist of Rs.500/- and Rs.100/- denomination notes were recovered from your possession in presence of thereby you have committed offence punishable under Section 7 of the P.C. Act within the cognizance of this court. independent witnesses and A N D Secondly, you being a public servant misusing your official status demanded and accepted bribe for your personal gain which amount to criminal misconduct and thereby you have committed an offence punishable under Section 13(1) (d) read with Section 13(2) of P.C. Act within the cognizance of this court. I hereby directed that you to be tried by this court for the above said charges. Sd/- Shri.Sudip Rn.Sen, Special Judge (CBI), Shillong.” The charges, so framed, against the appellant/accused were explained and read over to him, which he pleaded not guilty and claimed to be tried. 4. To bring home the charges against the appellant/accused, the prosecution had examined as many as 18 witnesses, namely, (1) Shri.Jayanta Kumar Dhar (PW 1), (2) Shri.Sanjiv Sood (PW 2), (3) Shri. Rajiv Menon, (4) Shri CRL.APPL.NO.(SH)10/2009 Page 12 of 52 Pramod Kumar, (5) Shri Omeka R Marak, (6) Shri SK Sinha, (7) Shri Suraj Sewa, (8) Shri Susovan Samanta, (9) Shri Ashi Kumar Mitra, (10) Shri Ametaleh Pathak, (11) Shri Pawan Kumar Jaipusiar, (12) Shri G Babu Rao, (13) Shri Gilbert Sohtun, (14) Shri Jankholal Gante, (15) Shri Joshin E Myrthong, (16) Shri RL Moses, (17) Shri Bimal Chandra Purkait and (18) Shri Ng Khamrang and also exhibited 29 documents, 8 Nos. of paper marks and 11 Nos. of Mt. Ext. Defence also exhibited 4 Nos. of Exhibits during cross examination of PWs as Ext.A, Ext.7/A, paper mark 1 and Ext.B. The statement of the appellant/accused Shri.S.K. Gupta was recorded under Section 313 of the Cr.P.C. No Defence witnesses were examined by the Defence. When the statement of the appellant/accused was recorded under Section 313 of the Cr.P.C., the appellant/accused Shri.S.K. Gupta had admitted that the bribe amount of Rs.25,000/- was recovered from his possession i.e. from the pocket of his pant and also that the bribe money of Rs.25,000/- were tainted with phenolphthalene powder. He took out the tainted bride money from his pocket and he also admitted that his hand when dipped into the sodium carbonate solution, it turned into pink. There was no explanation after admitting the recovery of the bribe money from his pocket and also both his hands when dipped into sodium carbonate solution, it turned into pink, except that one person from the trap team put something in his pocket. 5. As stated above, the appellant/accused did not produce any defence/evidence nor had he filed any criminal case against any members of the trap party either to the Police or to the CBI for the said alleged illegal act that one of the members of the trap party forcibly inserted something inside his pocket. Had there be really, the said illegal act of one of the members of the trap party, as it was alleged to have been happened in the broad daylight, the appellant/accused would know what was the object inserted in his pocket. The said vague explanation from the side of the appellant/accused in the given case CRL.APPL.NO.(SH)10/2009 Page 13 of 52 is not acceptable. The relevant portions of the statements of the appellant/accused Shri.S.K. Gupta recorded under Section 313 of the Cr.P.C., read as follows:- “Q.8. PW 3 also deposed that after reaching CBI Office your both hands were dipped in a solution which turned pink, then hand wash solution poured in two bottles and packed and sealed. What have you to say? Ans. It is correct. Q.9. PW No.3 also deposed that thereafter, independent witness Mr.Gilbert Sohtum searched you and recovered the money from your left front pocket of the pant and after ascertaining the numbers of the currency notes with pre-trap memorandum, it was seized, packed and sealed. What have you to say? Ans. I do not know. Q.10. PW No.3 also deposed that your left front side pocket of the pant was washed in a solution which turned into pink and the said solution was put inside a bottle and was packed and sealed. What have you to say? Ans. It is correct. Q/12. PW No.11 Shri.P.K. Jaipuriat deposed that you were posted to NEIGRIMS Project Shillong and joined on 3/12/2001 as Senior Manager Civil at NEIGRIMS Project Shillong and you were responsible for supervision, quality control, measurement etc for the work of package 3 (EPIL). What have you to say? Ans. It is correct. Q.13. PW No.12 Shri. G. Babu Rao deposed that work order exhibit-1 is in favour of M/s Parekh Premier Pvt. Ltd. by EPIUL for construction of 200 beds hospital and general procedure contractor CRL.APPL.NO.(SH)10/2009 Page 14 of 52 to submit R/B Bill on monthly basis for the work done for payment at EPIL Shillong and EPIL to submit the bill to HSCC for payment. What have you to say? Ans. I have no personal knowledge about Ext.1, and I have no knowledge about the bill of Parekh Premier Pvt. Ltd. Q21.PW No.13 also deposed that he took out the money from your pocket as asked by the CBI. Thereafter, the money was counted and checked the currency notes with numbers which tallied with pre trap memorandum exhibit-8 which was then packed and sealed which was material exhibit 7 the envelope and material exhibit 8 the currency notes. What have you to say? Ans. I do not know. Q.22. PW No.13 also deposed that then your left front pocket of the pant was washed in a solution and solution turned pinkish which was preserved in a bottle, packed and sealed which was material exhibit-9. Then your pant was also packed and sealed in a packet which is material exhibit-10. What have you to say? Ans. It is correct. Q.27. PW 14 also deposed that at CBI office your both hands were dipped in a solution which turned to be pink and preserved in separate two bottles which are material exhibits 5 and 6. What have you to say? Ans. It is correct. Q.28. PW No.14 also deposed that currency notes was recovered by other independent witness Mr. Sohtun from your pocket, then it was verified and checked with pre trap memorandum and found to be correct then packed and sealed in an envelope which is material exhibit-7 and currency notes recovered from your pocket is material exhibit-8. What have you to say? CRL.APPL.NO.(SH)10/2009 Page 15 of 52 Ans. I do not know. Q.29. PW 14 also deposed that your pant pocket from which money was recovered was also washed in a solution which also turned pinkish and preserved, packed and sealed in a bottle which is material exhibit-9. What have you to say? Ans. It is correct the solution turned pinkish, but I have no idea of recovery of money. Q.30. PW No.15 Shri.Joslin E Myrthong deposed that the mobile phone No.9863064673 belongs to you. What have you to say? Ans. It is correct. Q.35. PW 18 also deposed when your both hands were dipped in a solution by which you accepted and put the money in your pant pocket it turned to be pinkish which kept and preserved in a separate bottle which are material exhibits 5 and 6. What have you to say? Ans. It is correct that solution turn pinkish, but I had never accepted the money. Q.36. PW 18 also deposed that your pant pockets from which money was recovered was washed in a solution which turned to be pinkish and the solution was kept in separate bottle which are material exhibit 9 respectively. What have you to say? Ans. It is correct that solution turned pinkish, but I have no knowledge about recovery of money. Q.37. PW 18 also deposed that currency notes after recovery from your pant pocket by independent witness verified and compared with pre trap memorandum exhibit 8 and found to be correct. Then it was packed and sealed in an envelope material exhibit 7 is the envelope and material exhibit is the currency notes. What have you to say? CRL.APPL.NO.(SH)10/2009 Page 16 of 52 Ans. I do not know. Q.38. Do you want to say anything more? Ans. First time I met Mr.Rajiv Menon PW 3 at parking lot, Police Bazar on 5/8/04, who asked a lift from me to go to NEIGRIMS site, as there was a taxi strike on that day, in the meantime, 4/5 persons over power me and forcefully put me in a vehicle, and one of the persons forcefully put something in my pocket, and I could not resist them as they hold my both hands and took me to a unknown room. Later on I do know Parekh Premier Pvt. Ltd. implicated me falsely to avoid penalty as their works were very poor. Sd/ (Signature or mark of the accused) Sd/- (Signature of the Presiding Officer)” 6. Mt.Ext.2 i.e. the cassette which contains the conversation between the appellant/accused and Shri.Rajiv Menon (PW 3) regarding the demand of the said illegal gratification by the appellant/accused and also for payment by Shri.Rajiv Menon (PW 3) for PPPL was played in the open court and found to be audible and also Mt.Ext.2 was also having signature of the witnesses on the body of the cassette. The learned trial court in whose presence, Mt.Ext.2 was played in the open court made a clear findings that “on perusal of the cross examination, nothing rebuttal is noticed pertaining to reopening of the cassette Mt.Ext.2 at CBI Office on 05.11.2004 in his presence and PW 8, and then played in a tape recorder, where PW 8 identified the voice of the appellant/accused Shri.S.K. Gupta and contents of the conversation in writing in Ext.7 tallied and matched with the conversation already recorded in Mt.Ext.2. So, from the statement of PW 10, it is clear that the audio cassette Mt.Ext.2 was found in a sealed packet which was reopened on 05.11.2004 for the purpose of identification of the voice CRL.APPL.NO.(SH)10/2009 Page 17 of 52 of the accused/appellant by PW 8, who was the colleague of the appellant/accused and who identified the voice of the accused and the conversation reduced in writing in Ext.7 which tallied with the conversation recorded in the cassette Mt.Ext.2 when played before him. 7. The learned trial court, who himself recorded the statement of the PWs, in whose presence, Mt.Ext.2 Audio cassette was played, carefully appreciated the evidence of the prosecution and for the reasons recorded in the impugned judgment and order, had come to the findings that : “On perusal of Ext. 7 at inner page 9 at the bottom it is found mentioned during telephonic conversation, that the accused Shri SK Gupta asking Shri Rajiv Menon ‘ Kitna Hai’ and Shri Rajiv Menon replied that ‘Ho Tho Mare Ko Pata Nahin Sir Gena Nahin Ha’ that also indicates that there was a demand. In regard to re-opening the cassette Mt. Ext. 2 on 5.11.2004 from the evidence of PW No. 8, PW No. 10 as well as the memorandum Ext. 21, 22, it is clear that it was re-opened for the purpose of identification of the voice of the accused by PW 8 the colleague of the accused and analyzing the evidence I did not find any reason to record to re-open the cassette by the I/O with any intention to tamper or improve the case. Hon’ble Supreme Court in the case of Kishan Chand vs. State of Rajasthan reported in AIR 1982 SC 1511 at Para 11 was pleased to observe that – “A fact may be proved either by direct testimony or by circumstantial evidence. If the appellant did not visit the Factory of Rejendra Dutt on Nov, 20, 1974, and made no overtures demanding the bribe, on what rational hypothesis can one explain the visit of Rajendra Dutt to the office of Dy. SP, ACD on Nov, 22, 1974; his producing currency notes worth Rs. 150/-; a superior officer like the Dy. SP, ACD, making all CRL.APPL.NO.(SH)10/2009 Page 18 of 52 arrangements for the trap and the raiding party going to the house of the accused on Nov, 22 1974? The visit of Rajendra Dutt soon followed by the raiding party at the house of the accused on Nov. 22, 1974 is admitted. Coupled with this, the fact that Keshar Mal, PW 2 in his evidence stated that after Rajendra Dutt entered the room in which appellant was sitting. Rajendra Dutt on entering the room asked the appellant, “Hallo, how do you do”. He further stated that the appellant replied, “I am sick and suffering from cold”. He deposed that thereafter the appellant asked, ‘Have you brought the money,’ where upon complainant Rajendra Dutt replied, ‘Yes, I have brought the money’. He further stated that thereafter Rajendra Dutt took out the amount of currency notes from his diary and gave the same to the appellant who took the amount and kept it under the pillow on the cot. If there was no prior demand the subsequent events remain unexplained as also the demand as deposed to by PW 2 keshar Mal. But Mr Anthony urged that this part of the evidence of Keshar Mal cannot be accepted because he has not stated this fact in his statement recorded in the course of investigation. Simultaneously it was pointed out that the other Motbir Ram babu is totally silent in his evidence about the conversation between the appellant and the complainant. Undoubtedly, the omission in the police statement of Keshar Mal and non-mentioning all these facts by the co-motbir would raise some doubt in the mind of the Court about this conversation but as pointed out earlier there are tell-tale circumstances which do indicate that there must have been a demand and, therefore, these circumstances as herein before set out will render support to the statement of Keshar Mal that the demand at the time of visit of Rajendra Dutt must be pursuant to earlier demand by the appellant. Therefore, it is not proper to say that there is no evidence of the demand of bribe as on Nov. 22, 1974”. AIR 1982 SC 1514. CRL.APPL.NO.(SH)10/2009 Page 19 of 52 “Where the evidence of the Police Officer who laid the trap is found entirely trustworthy, there is no need to seek any corroboration. There is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the fact and circumstances of another case the Court may unhesitatingly accept the evidence of such an Officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance”. AIR 1980 SC 873. In this instant case in hand, there may be certain minor contradiction in the evidence, but such minor contradiction definitely did not prejudice the accused or render benefit to him. But in this instant case from the facts, circumstances and evidence discussed above, it is clear and evident that the accused Shri SK Gupta had demanded money and accepted the same, for the reasons of which this court find him guilty of receiving illegal gratification. And accordingly, he is convicted under Section 7 of CPC Act 1988 as well as found guilty of receiving money in illegal and corrupt means under Section 13(I)(d)(i) of PC Act and convicted under Section 13(2) PC Act, 1988.” 8. PW 1, Shri.Jayanta Kumar Dhar (Complainant), PW 3 Shri.Rajiv Menon, PW 13 Shri. Gilbert Sohtun, PW 14 Shri.Jangkholal Gangte and PW 18 Shri.Ng.Khamrang made the graphic statements of the demand of gratification by the appellant/accused Shri.S.K. Gupta, Pre-Trap Memorandum, catching the CRL.APPL.NO.(SH)10/2009 Page 20 of 52 appellant/accused red handed while demanding and accepting bribe and also subjecting the appellant/accused to the test of Phenolphtalene power and sodium carbonate solution. It is a settled law in a trial, it is not number of witnesses but the quality of their evidence formed the basis of conviction. 9. Justice Thakkar, J, (as his Lordship then was) observed that “human goodness has limits- human depravity has none. The need of the hour however, is not exasperation”. Ref: Bhaarwada Bhoginbhai Hirjibhai vs State of Gujarat : (1983) 3 SCC 217). 10. Justice R.C. Lahoti J, (as his Lordship then was) in State of Rajasthan vs N.K. The accused: (2000) 5 SCC 30, observed that “It is true the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of the acquittal by giving weigh to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females.” 11. Further only because of the failure of prosecution to examine the independent witnesses, the prosecution case could not be thrown out on that ground alone. Reference Appabei and another Vs. State of Rajasthan reported in AIR 1986 SC 896. It is also well settled law that the Court while CRL.APPL.NO.(SH)10/2009 Page 21 of 52 appreciating evidence must not attach undue importance to minor discrepancies. Regarding this point we may refer to the decision of the Apex Court in Sukhdev Yadav and others vs. State of Bihar reported in (2001) 8 SCC 86. Para 3 and 15 of the SCC in Sukhdev Yadav and others (Supra) are quoted hereunder: 3. It is indeed necessary, however,, to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment – sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account. In Appabhai Vs. State of Gujarat reported