Gulam Haider Zilani vs State Of Nct Of Delhi on 18 March, 2011

Delhi High Court
Gulam Haider Zilani vs State Of Nct Of Delhi on 18 March, 2011
Author: Hima Kohli
*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+           Crl. MB No. 483/2011 in CRL. A. No.363/2011

                                                  Date of Decision: 18.03.2011

IN THE MATTER OF :
GULAM HAIDER ZILANI                                        ..... Appellant
                                Through: Mr. M.K. Verma, Advocate


                    versus

STATE OF NCT OF DELHI                                      ..... Respondent
                                Through: Mr. M.N. Dudeja, APP for the State


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may           No
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?          No

     3. Whether the judgment should be                  No
        reported in the Digest?

HIMA KOHLI, J.

1. This application is filed by the appellant under Section 389 of the

Cr.P.C. praying inter alia for suspension of sentence during the pendency of

the accompanying appeal. By the impugned judgment dated 14.02.2011,

the appellant was found guilty and convicted by the learned Special Judge,

Anti Corruption Branch, of the offences under Section 120B IPC read with

Section 7 and 13(i)(d) of the Prevention of Corruption Act (hereinafter

referred to as `the Act’) as also under Section 7 of the Act as well as

Section 13(i)(d) read with 13(2) of the Act. As per the order on sentence

dated 17.02.2011, the appellant was awarded a sentence of rigorous

imprisonment for a period of two years and a fine of `4,000/-, in default

Crl.M.B. 483/2011 in CRL.A. No. 363/2011 Page 1 of 5
whereof, simple imprisonment for a period of six months for the offence

under Section 120B IPC read with Section 7 and 13(i)(d) of the Act and

further sentenced to undergo rigorous imprisonment for a period of two

years and a fine of `4,000/-, in default whereof, simple imprisonment for a

period of six months for the offence under Section 7 of the Act and further

sentenced to undergo rigorous imprisonment for a period of two years and a

fine of `4,000/-, in default whereof, simple imprisonment for a period of six

months for the offence under Section 13(2) of the Act. All sentences were

directed to run concurrently.

2. The brief facts of the case are that the appellant was employed

as a Junior Engineer with the MCD and as per the prosecution, he alongwith

his co-accused, Braham Pal, who was employed as a Beldar with MCD, had

asked for a bribe of `50,000/- from the complainant (PW4) for allowing him

to continue to carry out construction of the first floor in his house, failing

which they would have demolished the said construction. After the

complainant expressed his inability to pay the sum, the appellant and his co-

accused reduced their demand to `10,000/-. The complainant lodged a

complaint with the Anti Corruption Branch against both the appellant and the

co-accused, for demanding a bribe from him. On receiving such an

information, a trap was laid for the appellant and his co-accused and they

were caught receiving the bribe money on 08.03.2007.

3. Charges were framed against the appellant and his co-accused,

who pleaded not guilty and claimed trial. In the trial, 13 prosecution

witnesses including the complainant (PW4), Raid Officer (PW11), and the

Panch Witness (PW6) were examined. Statements of the appellant and his

co-accused were recorded under Section 313 CrPC, however neither of them

Crl.M.B. 483/2011 in CRL.A. No. 363/2011 Page 2 of 5
led any defense evidence. On an examination of the evidence which came on

record, the trial court arrived at the conclusion that the prosecution had

placed sufficient evidence on record to hold that the appellant and his co-

accused, both public servants, were guilty of conspiring to accept illegal

gratification, from the complainant, thereby committing offences under 120B

IPC and Section 7, 13(i)(d) read with Section 13(2) of the Act.

4. The learned counsel for the appellant urges that for an offence

under the Prevention of Corruption Act to be made out, both the acts of

demand of illegal gratification and acceptance of the same would have to be

proved and in the present case, recovery of GC notes was made from the

person of the co-accused Braham pal, and that no recovery was made from

the appellant. He submits that even if it is assumed that the prosecution

managed to prove the act of demand against the appellant, the act of

acceptance remains unproven, as no money was recovered from the

appellant. It is contended that the court below failed to consider the fact

that the Panch Witness (PW6), had turned hostile and had stated that only

the co-accused, Braham Pal had gone to the first floor of the building

whereas the appellant had remained downstairs, and further, that PW-6

having turned hostile, the testimonies of the complainant (PW4) and the

Raid Officer (PW11) stood uncorroborated on the point of acceptance of

bribe by the appellant, which fact the trial court overlooked. He, therefore,

submits that there are sufficient grounds taken in the appeal to entitle the

appellant to suspension of sentence during the pendency of the appeal.

5. The learned APP for the State on the other hand vehemently

opposes the application for grant of suspension of sentence on the ground

that acceptance of illegal gratification by a public servant is a grave offence.

Crl.M.B. 483/2011 in CRL.A. No. 363/2011 Page 3 of 5
He also urges that a perusal of the impugned judgment reveals that the trial

court has sifted the evidence on the record and after examining the same,

rightly arrived at the conclusion that the appellant and the co-accused had

accepted bribe from the complainant. He further submits that if an actual

date for hearing the appeal is fixed, then there is no reason to grant

suspension of sentence.

6. This Court has heard counsels for both the parties and has

perused the impugned judgment of conviction as well as the order on

sentence passed by the learned Special Judge, Anti Corruption Branch. On

the point that the Panch Witness (PW-6) had turned hostile and hence his

testimony ought to have been disregarded, the trial court observed that the

said witness had turned hostile only to the extent that he had stated that the

appellant herein was not present on the first floor of the house where the

bribe was being accepted by the co-accused. It was held in the impugned

judgment that even if a witness is declared hostile, his entire testimony need

not be disregarded and that part of his testimony which stands corroborated

by other evidence and witnesses, should be accepted. As far as the

deposition of the complainant (PW-4) and the Raid Officer (PW-11) is

concerned, the trial court found no reason to disregard the testimony of the

Raid Officer (PW11), especially since on most of the crucial points, his

testimony was supported by the testimony of the complainant (PW4) and of

the Panch Witness (PW6). The trial court noticed the fact that PW-4 and

PW-11 had also testified that the appellant had directed his subordinate,

Braham Pal to accept the bribe money from the complainant. In this

background, the court concluded that it becomes immaterial whether a

direct recovery was made from the appellant, and since he was apprehended

Crl.M.B. 483/2011 in CRL.A. No. 363/2011 Page 4 of 5
from the scene of crime, implicit recovery is deemed to have been made

from him.

7. At the stage of suspension of sentence, this court cannot

conduct a roving enquiry into the evidence on record, rather it is required to

see if in its prima facie opinion, there is such patent illegality, arbitrariness

or perversity in the impugned judgment as to warrant grant of suspension of

sentence. In the present case, on a prima facie assessment of the facts and

evidence on record as analysed in the impugned judgment, this Court does

not find any such patent illegality or perversity, which would warrant

suspension of sentence. This is more so when the appeal has been fixed for

hearing on an actual date.

8. The application is therefore dismissed as being devoid of merits.

9. Needless to state that the aforesaid prima facie view is

expressed only for the purpose of disposing the present application and is

not a conclusive view of the court, which shall be arrived at only after

hearing the appeal on merits.

10. The appellant is directed to surrender before the Jail authorites

on or before 21.03.2011.





                                                           (HIMA KOHLI)
MARCH       18, 2011                                          JUDGE
pm




Crl.M.B. 483/2011 in CRL.A. No. 363/2011                       Page 5 of 5
 

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