* 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
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