Rajinder Singh @ Babloo vs State

Vimal Kumar Yadav, J.

Who were the pawns and who were the players and was there any confusion about, who were the pawns of whom? Normally, pawns are controlled by whoever has more power, more information, more incentive; like in politics the influencing or driving factors are usually ideology, parties and to some extent media. In the corporate world, the so called pawns are ruled over by management structure and dominant share holders. Whereas in society, the pawns are controlled by reward, fear, narratives and self interest. Were the touts, thronging and infesting some of the government offices, were they pawns, in the hands of the government officials ensconced in their office chairs, shielded by the artificial and physical walls and impediments, or it was vice-versa, or were both the touts and the public servants captivated by the allure of money and materialistic desires, were pawns of worldly desires and were in fact living in a self created mirage. It is not possible for touts to have a field day and wield such influence in any office unless they are engaged, protected and encouraged by the government officials sitting behind the bureaucratic shield, allowing the touts to facilitate work, which they as ‘Public Servants’ were supposed to perform themselves. However, these same ‘Public Servants’, atleast some of them, often fail to perform their duties with a sense of responsibility; rather, they, blinded by materialistic desires, sacrifice their public functions at the altar of greed, selfishness and materialism.

Shorn of unnecessary details, the facts of the case in hand unfolds with the complainant (PW-2) who happened to misplace his driving licence, due to which he went to have a duplicate driving licence, which took him to the Office of Transport Authority located at Janakpuri on 05.12.2006. He came across one Rajinder Singh @ Babloo who assured the complainant that he would have the duplicate driving licence issued and at the same time, complete the requisite formalities in this respect. He also demanded, including the government fee, a total amount of Rs.1,300/-. In fact Rajinder Singh @ Babloo came into the picture only when the officials sitting in the Transport Authority did not provide any assistance to the complainant Ravinder Singh, who was forced or sort of left at the mercy of the private persons / touts present in and around the office of the Transport Authority.

The offer of assistance against consideration was accepted by the complainant, who promised to come on the next day with the money. However, he went to the office of the Anti Corruption Branch (‘ACB’) and lodged a complaint (Ex.PW-2/A). The complaint was written by Inspector Sunil Kumar (PW-11) on the dictation of the complainant Ravinder Singh, in the presence of one Lalit Kumar, who was a panch witness, already present in the office of ACB as part of his duty.

The pre-raid proceedings including demonstration were conducted, wherein the complainant handed over two Government Currency (‘GC’) notes of Rs.500/- each and three GC notes of Rs. 100/- each to Raiding Officer, who recorded the serial numbers of those GC notes. Thereafter, demonstration to the panch witness and the complainant was carried out as to how the use of the phenolphthalein powder is done on the GC notes in this case, 02 notes of Rs.500/- and 03 notes of Rs.100/- were treated with the powder for raid purposes. The pre-raid proceedings were recorded (Ex.PW-2/C). Suitable instructions were imparted to the complainant (PW-2) and the panch witness (PW-4) and after that the raiding party consisting of complainant, panch witness, Inspector Harvinder Singh (PW-9), ASI Raj Kumar (PW-12), Constable Kapil Dev (PW-1) proceeded to the Office of the Transport Authority at Janakpuri and reached there at about 01:35 PM. The instructions were again refreshed to the complainant and the panch witness as were given in the pre-raid proceedings and they were deputed to go inside the Transport Authority.

At about 02:20 PM ‘Babloo’ whose actual name was Rajinder Singh came along with the one more person and at about 02:35 PM demanded the money from the complainant and thereafter the government currency notes of Rs.1,300/- were given to the associate of Rajinder @ Babloo, who came along with him i.e. Mukesh Kumar, who kept the tainted currency notes in the right front pocket of his jeans with his left hand. Thereafter, the pre-designated signal was given by the panch witness Lalit Kumar (PW-4), which prompted the raiding party to come into action. Both Rajinder @ Babloo and Mukesh Kumar were apprehended. The raid proved successful and the tainted money was recovered. The requisite proceedings were conducted thereafter, including the numbers of Government Currency (‘GC’) notes being tallied, wash of pants and the hands of the apprehended persons, seizure of the currency notes and the solution of Sodium Carbonate, which had turned into pink colour after the hand wash etc. During the proceedings, the personal search of Rajinder Singh @ Babloo was also carried out and two cash receipts of Rs.360/- each (Ex.PW-9/B and Ex.PW-9/B-1) were recovered. The FIR (Ex.PW-9/C), based upon the original rukka given to the Inspector Harvinder Singh, the instant case was registered.

The case property articles were seized, including the two cash receipts (Ex.PW-9/B and Ex.PW-9/B-1) were all deposited in the Malkhana of the ACB police station and relevant entries were made in the Register (Ex.PW-3/A). On conclusion of the investigation, chargesheet was filed. After compliance of Section 207, Criminal Procedure Code, 1973 (‘Cr.P.C.’) through the order on charge dated 08.04.2008, the prima facie case was found under Section 8 of Prevention of Corruption Act, 1988 (‘PC Act’) read with Section 120B of Indian Penal Code, 1860 (‘IPC’) and section 8 of the PC Act. Accordingly a charge was framed against both Rajinder Singh @ Babloo and Mukesh Kumar under Section 8 of PC Act read with Section 120B IPC and under Section 8 of PC Act separately. Both of the accused persons, Mukesh and Rajinder Singh @ Babloo pleaded not guilty to the same.

The case of the prosecution traversing through the testimony of 12 witnesses and the statement of the accused Rajinder Singh @ Babloo under Section 313 Cr.P.C. and that of Rakesh Kohli (DW-1), resulted into the conviction of Appellant under Section 8 of the PC Act. It is pertinent to mention here that co-accused Mukesh Kumar in the meantime had expired.

Through the order on sentence dated 23.12.2010, the Appellant Rajinder Singh @ Babloo was sentenced to undergo Rigorous Imprisonment (RI) for a period of 01 year and 06 months together with that he was sentenced to deposit a fine of Rs.10,000/- in default of which he was to undergo Simple Imprisonment (SI) for a period of 06 months.

Against the backdrop of the aforesaid facts, the instant appeal has emerged under Section 374 Cr.P.C wherein while assailing the Impugned Judgment it is asserted on behalf of the Appellant Rajinder Singh @ Babloo that all the material witnesses have turned hostile and that the prosecution could not establish demand and acceptance, which are essential, mandatory and integral parts to be established by the prosecution to succeed. Therefore, the Impugned Judgment cannot be sustained.

Learned counsel for the Appellant while relying upon the judgment in Bharat Bhushan v. State, 2014 SCC OnLine Del 551 and Babji v. State, 2018 SCC OnLine SC 1216 asserted that mere recovery of tainted money without cogent evidence of demand and acceptance cannot sustain the conviction and that the requisites of Section 8 PC Act must co-exist and for the same purpose, has pointed three elements which are integral and indispensable as reproduced hereunder:-

While elaborating, learned counsel for the Appellant submitted that in the instant case, the prosecution has failed to prove the core ingredients of Section 8 PC Act. The complainant (PW-2) and panch witness (PW-4) did not support the prosecution; their testimonies were inconsistent with the complaint and pre-raid version. Both failed to prove any demand or acceptance by the Appellant. Mere recovery of money, without proof that it was received as gratification for inducing a public servant, is insufficient, as held in Babji’s case (supra). Vinod Kumar (PW-7), Motor Vehicle Inspector, testified that one Raj Kumar (PW-12) had appeared before him for a learner's licence test, confirming that the official process was duly followed and no facilitation by the Appellant occurred. This negates any claim of influence or inducement.

Finally it was asserted that even Raj Kumar (PW-12) in whose name the licence was processed also did not support the prosecution and categorically stated that the Appellant never demanded any money from him. Therefore, his testimony, if read in conjunction with the statement of the PW-7 completely uproots the prosecution’s case. Similarly, Ravinder Singh (PW-2), Lalit Kumar (PW-4), Devender Singh (PW-6), Vinod Kumar (PW-7) and Raj Kumar (PW-12), all put together could not bring the substantial aspects of the case that there was a conscious demand or voluntary acceptance of any illegal gratification. It is further submitted that Appellant was a private person who was present there at the Transport Authority in connection with his own work and has been falsely implicated in this case. The prosecution has further not been able to show that he was in a position to influence the public servants or that he would have got the things done from those public servants, for and on behalf of the complainant.

Learned APP on the other hand while contesting the assertions made on behalf of the Appellant argued that the complainant has, though turned hostile, but he somehow accepts his signature on the complaint (Ex.PW-2/A) and for that matter the Panch Witness examined as PW-4 Lalit Kumar has brought on record all the requisite essential ingredients of Section 8 i.e. demand, acceptance and recovery. In order to strengthen and emphasize his submissions, learned APP has placed reliance on the following judgments:-

The recovery of the receipts (Ex.PW-9/B and Ex.PW-9/B-1) of the money deposited with the Transport Authority further according to Learned APP, substantiates the case of the prosecution. There is no explanation with the Appellant as to how come these receipts were there in his possession. On examination of the aforementioned receipts, it can be seen that they were issued against the names of two individuals i.e. Raj Kumar (PW-12) & Prakash Tanka. However, this evidentiary finding, when coupled with the deposition of Raj Kumar (PW-12) along with the statement of the accused under Section 313 Cr.P.C does not inspire much confidence to the rest of the case of the Appellant due to the reason that both of them have categorically denied having any prior dealings with each other. It is asserted that the Appellant seems to be one of those touts who used to hang around at such government offices, which can be inferred from the fact that the Appellant was earlier also held guilty and sentenced under Section 8 of the PC Act as can be seen in the order on sentence which contains the details of his previous conviction in case FIR No. 20/2006 under Section 8 of PC Act. The relevant portion of the order on sentence has been reproduced hereunder for the purpose of reference:

Learned counsel for the Appellant has tried to wriggle out of the situation by stating that he was arrested from the Sub-Registrar’s Office and not from the office of the Transport Authority. It is hence submitted that in the absence of the supporting evidence of the complainant who has turned hostile and so has Raj Kumar (PW-12) the Appellant cannot be held responsible for any offence inasmuch as the person on whose grievance the criminal machinery was set in motion has himself washed off his hands and has clearly and completely denied that he had ever visited the office of ACB or that he is aware of any facts about the case.

Having considered the submissions made by the contesting sides and after perusing the record, what emerges is that the prosecution was under obligation to establish the following facts in order to prove the offence under Section 8 of the PC Act.

So far as the aforesaid ingredients are concerned, the prosecution has heavily relied upon the testimony of the Lalit Kumar (PW-4) the panch witness, in view of the fact that the complainant Ravinder Singh (PW-2) and another person Raj Kumar (PW-12) both have turned hostile and completely washed off their hands from the allegations. Astonishingly, Ravinder Singh on whose instance the whole raid was organized has blatantly stated that he is not aware of the anything about the case, so much so that he has denied the fact that he had ever visited the office of the ACB.

However, he was unable to explain as to how come his signatures appear on the complaint and several other documents prepared in connection with the case in hand. Incidentally he admits his signatures on the documents including the complaint (Ex.2/A) which according to the Inspector Sunil Kumar (PW-11) the Raiding Officer, was written by him as per the dictation given by the complainant. This complaint has also been signed by the panch witness Lalit Kumar (PW-4), who also says that it was the complainant Ravinder Singh who came at the office of ACB on 06.12.2006 and got his complaint recorded through one Inspector whose name he could not tell but in the same breath clarified that it was the Raiding Officer. PW-4 also admitted his signatures on the complaint (Ex.PW2/A) at point B and apart from explaining the pre-raid proceedings, the raid and most important of all, the fact that he accompanied the complainant Ravinder Singh, has testified that he was a witness to the demand made by Rajinder Singh @ Babloo and that he also witnessed the transaction where the phenolphthalein powder treated currency notes were given to Rajinder Singh @ Babloo, who took it in his right hand and handed over to a boy who was present along with Rajinder Singh @ Babloo i.e. (deceased co-accused namely Mukesh Kumar). These GC Notes were subsequently recovered. PW-4 Lalit Kumar has firmly stood his ground and supported the prosecution’s case in toto and has come out with flying colours from the onslaught of cross-examination, thus, firmly binding and cementing the case of the prosecution against the Appellant.

Irrespective of the fact that two important pillars of the prosecution’s case i.e. the complainant Ravinder Singh and Raj Kumar did not support the edifice sought to be raised by the prosecution but the collapse has been averted by the strong, unwavering and unflinching testimony of Panch Witness Lalit Kumar, other supporting evidence in the shape of the testimony of the Raiding Officer and police officials which leaves no doubt about the complicity of the Appellant in the offence. The learned Trial Court has taken into consideration all the relevant facts and has reached to a conclusion which is in consonance with the facts and the evidence on record.

In Sandeep Deshwal @ Sanju v. State Govt. of NCT of Delhi, 2021 (1) JCC 119, a similar situation was there as are the facts of the instant case are where relying upon the State through CBI, New Delhi v. Jitender Kumar Singh, (2014) 11 SCC 724, a co-ordinate bench of this Court has held that the testimonies of the Panch Witness and raiding officer are sufficient as long as the same are above board, cogent and convincing to record a finding against the accused.

In the instant case, apart from the testimony of panch witness Lalit Kumar (PW-4) and Raiding Officer Inspector Sunil Kumar (PW-11), which firmly, cogently and distinctly establish the case of the prosecution. There are certain circumstances, which further confirms and substantiate the case against the Appellant. Recovery of money/receipt of fee deposited for renewal of driving licence in the name of the complainant Ravinder Singh and Raj Kumar could not be explained by the Appellant in whose personal search, these receipts were recovered. Then the complicity of the Appellant in similar case and conviction recorded further indicates that he is professionally involved in this illegal work. The stand taken by the Appellant about his presence at the Transport Office, also stands falsified that he was there for some work. What work, he could not explain. The recovery of receipt Ex. PW-9/B and Ex. PW-9/B-1 completely knocks out the bottom of his defence.

As a result, the appeal having no substance in it and that the Appellant who seems to be actively involved in touting at the Transport Authority or such other infamous government offices, as can be inferred from his previous conviction in FIR No. 20/2006, the appeal is bound to fail. The sentence is also not required to be disturbed in any manner in view of the aforesaid facts of his seemingly being a habitual tout. In any case, nothing was argued on the aspect of sentence. The appeal accordingly, stands dismissed and stands disposed of, with pending application(s), if any.

Appellant to surrender forthwith to serve the sentence. He shall be entitled to the benefit of set off under Section 428 Cr.P.C.

Copy of the judgment be transmitted to the Trial Court and Prison Authorities for information and necessary compliance.