DEV RAJ ARORA Vs. STATE THR CBI

JUDGEMENT

(1.) By this appeal, the Appellant lays a challenge to the judgment dated 3 rd June, 1999 whereby the Appellant has been convicted for offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (in short the 'P.C.Act') and the order dated 3 rd June, 1999 directing him to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.5000/- and in default of payment of fine to undergo further Rigorous Imprisonment for a period of six months on both counts.

(2.) Learned counsel for the Appellant contends that Inspector Ved Prakash was the trap officer as well as the investigating officer. He prepared the handwriting memo, rough site plan and personal search memo. He also recorded the statement of recovery witness and the Complainant Sanjay Kohli and Jagdish Chander. The independent witnesses of the transactions Ishwar Singh, AFO, DESU and S.C.Bhatia, Office Supdt., DESU were deliberately not examined. The Appellant moved an application dated 10 th September, 1999 praying for closing of the prosecution evidence in terms of the judgment Raj Dev Sharma vs. State of Bihar, JT(7) SC(1) and the learned Trial Court vide order dated 10 th September, 1999 closed the prosecution evidence and fixed the date of 31 st March, 1999 for recording the statement of the accused. Even after closing of the prosecution evidence vide order dated 10 th March, 1999, the learned Trial Court summoned two PWs and examined them to fill-up the lacuna in the prosecution case. The statement of the Appellant recorded under Section 313 Cr.P.C. is illegal as though certain witnesses have not been examined in evidence and there is no evidence adduced to this effect however questions have been put to the Appellant. Further, incriminating evidence have not been put to the Appellant and thus the same cannot be taken into consideration against the Appellant. It is contended that no independent witness was joined. Even the two witnesses cited in the charge-sheet were not produced in evidence. The witness to the raiding party cannot be regarded as an independent witness in a trap case of illegal gratification. Reliance in this regard is placed on Hari Chand vs. State of Haryana,1998 1 CLR 718, Mohinder Singh vs. State of Punjab, 1995 2 Crimes 274, Dharampal vs. State of Haryana, 1998 1 AIR 580, Som Prakash vs. State of Punjab, 1992 AIR(SC) 665, Ram Prakash Arora vs. State of Punjab, 1973 AIR(SC) 498, Surajmal vs. State, 1997 CrLJ 1087, and Lachhman Das vs. State of Punjab, 1970 CrLJ 526.

(3.) It is next contended that the learned Trial Court has wrongly appreciated the evidence of PW2 Sanjay Kohli despite the fact that this witness has turned hostile. There is no evidence of demand of the bribe and in the absence of this necessary ingredient, the Petitioner cannot be convicted for the offence as above.