Delhi District Court
In Case Cbi vs . Devender Rathi Then Pending Before Ld. on 15 April, 2014
IN THE COURT OF SH. M.R. SETHI:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 87/2008
ID No. 02401R0128492008
CBI
Versus
Sukhdev Singh
S/o. Shri Jeevan Ram,
R/o. Village & P.O. Fatehpur,
PS/ Lasan Pur, Distt. Sikar
(Rajasthan). ... Accused No.1
Mahender Singh
S/o. Shri Kiishore Singh
R/o. Village & P.O. Jaliawas,
PS/Bawal Distt. Mahendergarh
(Haryana). ... Accused No.2
Case arising out of: FIR No. RC-DAI-2007-A-0018
Date of FIR : 23.05.2007
Date of Institution : 29.01.2008
Date of Final Arguments : 09.04.2014
Date of Judgment : 15.04.2014
(Case is more than five years old)
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JUDGMENT:
1 FIR in this case came to be registered on basis of a complaint dated 23.05.2007 made by the complainant Smt. Kusum Sehgal who claimed therein that around 8th/9th May, 2007, she had received a telephone call from P.S. Hari Nagar calling her to the Police Station. It was further mentioned that when the complainant went to the PS, she was introduced by Mahender, Reader to the SHO Hoshiyar Singh with the SHO, who informed the complainant that one Grover had lodged a complaint against her regarding her having threatened to kill him and in case she wanted to save herself from that matter, she would have to incur some expenses. The complainant further mentioned in the complaint that the SHO asked her to talk to his Reader Mahender and the I.O. Sukhdev who both were standing there. The complaint further mentioned that thereafter the Reader Mahender demanded Rs.40,000/- from her claiming that in case she did not give the money, a case would be registered against her. She had further claimed that she was regularly receiving telephone calls from Mahender and the PS wherein she was threatened to give bribe. The complaint further mentioned that the complainant was receiving repeated telephone calls from Sukhdev since 07:16 A.M. threatening her with arrest in case bribe amount of Rs. 30,000/- was not given till evening time. Complainant claimed that she did not want to pay any bribe and hence had lodged the complaint.
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2 On basis of aforesaid allegations, charges were
framed against both the accused persons on 30.04.2009 for having committed offence punishable U/s. 120-B IPC, Section 7 PC Act r/w Section 120-B IPC & Section 13(2) r/w 13 (1) (d) PC Act r/w 120 B IPC. Both the accused persons pleaded not guilty and claimed trial.
3 During course of trial, Prosecution examined 15 witnesses to prove its case. Statements of accused persons were recorded U/s. 313 Cr.P.C. and one witness was examined in defence by the accused persons.
4 PW-1 Shri Rajinder Singh claimed having received four sealed parcels from CBI vide letter Ex.PW-1/1. The same were stated to contain one cassette each i.e. Q-1, Q-2, S-1 & S-2. Witness claimed having compared the voices contained therein and proved his Report in that regard as Ex. PW-1/2.
During course of cross-examination by ld. Counsel for the accused, witness admitted that he did not have any Degree/Diploma/ Certificate in respect of Voice Identification. He however claimed having done extensive research in the field and having published many Research Papers connected to Voice Identification. He claimed that his PhD. Thesis was related to Sound Examination. He denied the suggestion that sound & voice are different or that voice cannot be created. He claimed that although voice of a person could be copied, the copied voice would not be identical to the original. He further claimed that a voice similar to the original can be created mechanically but even the same would not be identical to the original. He claimed that it was not possible CC No. 87/2008 Page3 of 66 that voices of Father & Son would be identical. He further claimed that a photocopy of a rough Transcript of the conversation had been received in CFSL alongwith the cassettes. He denied the suggestion that names of Speakers were mentioned therein. No Transcript of sample voice was claimed to have been received. He further claimed that names of Speakers were not mentioned on the cassettes containing sample voice. He clarified that name of the Speaker in the specimen cassette came to be known to him as the speaker i.e. accused had introduced himself in the specimen voice recording. He denied the suggestion that voice recorded from telephone, radio and face to face would give different voice spectogram. He clarified that two different voices cannot have a similar voice spectogram. He admitted that the spectogram prepared had not been sent to CBI. He claimed that he had not checked whether or not the cassettes were doctored as the same was not asked for. He further claimed that possibility of editing a conversation transferred from a DVR to cassette cannot be ruled out. He denied the suggestion that he was deposing falsely.
5 PW-2 Shri R.S. Chauhan proved his report Ex. PW-2/2 in respect of hand washes received vide letter Ex. PW-2/1 and examined by him.
During course of cross examination, witness claimed that he himself had analysed the relevant exhibits but had taken assistance of his junior M.L. Meena. He claimed that worksheet was prepared by him and not by his junior. He denied the suggestion that he himself had not conducted the analysis or that he was deposing falsely.
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6 PW-3 Smt. Kusum Sehgal was the complainant
who during course of her examination-in-chief claimed that on 04th /05th May, 2007, she alongwith her family had gone for dinner where one Lalinder Khanna who was brother of her friend took her Mobile Phone No. 9911971000 and spoke to someone. He further claimed that thereafter on 08.05.2007, Khanna told her that she had been called to appear in P.S. Hari Nagar and accordingly she went there on 09.05.2007 at around 5.30 / 5.45 P.M. alongwith Mr. Khanna. She claimed that both the accused persons took her to SHO Hoshiyar Singh where accused Mahender informed him that she was the same person who had threatened "that person" of liquidation. Witness claimed that she told the SHO that it was Lalinder Khanna who had spoken to someone after taking her Mobile Phone and that Khanna had spoken to the person in a very cordial atmosphere. She claimed that Inspector Hoshiyar Singh asked her to talk to the accused in order to know as to what she had to do, whereupon both the accused persons took her to the room adjoining that of the SHO. Witness claimed that she asked the accused persons to show her the complaint lodged against her whereupon accused Mahender claimed that complaint had been lodged by one Mr. Grover. It was claimed that Mahender further asked her if she was interested in seeing the complaint or in finishing off the matter. Witness claimed that she replied saying that she was interested in finishing the matter, whereafter accused Mahender told her to pay Rs.40,000/- for closing the matter. Witness claimed that when she claimed that she would go to the SHO, the accused persons claimed that they were not CC No. 87/2008 Page5 of 66 demanding money for themselves and were asking for the same on instruction of the SHO. Witness claimed that thereafter she alongwith Khanna came out of the P.S. and was told by Lalinder that the accused persons had been repeatedly calling him to the P.S. Witness claimed that she went back to her residence. It was further claimed that thereafter ASI Sukhdev called her up on telephone claiming that he was the IO in respect of complaint lodged against her and asked her as to what was to be done, upon which witness claimed having replied that she had not extended any threat to anyone and was not interested in paying any money. It was further claimed that on 18.5.2007 both the accused persons gave repeated calls on her mobile phone claiming that they were going to register a case whereupon witness claimed having told them that they could do anything they liked. It was claimed that on 23.5.2007 ASI Sukhdev again gave a telephone call to her at about 7.15 AM informing that SHO had directed registration of case against her and that it could be stalled in case she paid money by the evening. Witness claimed having told the accused Sukhdev that she did not have Rs.40,000/- whereupon he asked her to pay Rs. 30,000/-. Witness claimed that when she expressed her inability to make the payment, accused Sukhdev told her to ask her husband to talk to him. She claimed that she told the accused that her husband was not at home and that she would tell him to talk to him (accused) as soon as he (her husband) came back. She further claimed that even thereafter she kept on receiving telephone calls on her mobile but did not attend the same. She further stated that after CC No. 87/2008 Page6 of 66 thinking over the matter she reached CBI office around 2.00 - 2.30 PM where she narrated entire facts to the SP and also lodged her complaint Ex. PW-5/1. She identified her signature on the same. Witness claimed that in order to verify genuineness of the complaint, she was asked to make a call from her mobile phone to the accused which she did on mobile phone of Sukhdev Singh who did not pick the call. She claimed that after sometime she received a call from Mahender from land-line telephone of PS Hari Nagar wherein Mahender wanted to talk to her husband, whereupon Inspector Amit Vikram Bhardwaj posed as her husband and talked to the accused. The said conversation was claimed to have been recorded. She claimed that in the said talk accused Mahender wanted her husband to come to PS for making payment to his Boss for closure of complaint pending against his wife Neetu i.e. the witness herself. It was claimed that the recorded conversation was transferred into two audio cassettes out of which one was wrapped and sealed. She claimed that pre-trap conversation recording Memo Ex. PW-5/2 was also prepared at that time. Witness identified her signature on the same. The pre-trap proceedings were claimed to have been written in Handing Over Memo Ex. PW-5/3. Witness identified her signature on the same. She further claimed that after 5 - 10 minutes she again had a telephonic conversation with Mahender Singh whereupon she was called to PS Hari Nagar but while expressing her inability witness claimed that she would come with her sister-in-law. It was claimed that the said conversation was not recorded. Witness claimed having produced 30 currency notes of CC No. 87/2008 Page7 of 66 denomination of Rs.1000/- each and that their serial numbers were noted on a paper and the notes treated with some powder and handed over to her with direction to keep the same in her hand bag. She claimed that she was directed to hand over the said currency notes only in pursuance of a specific demand and not otherwise. A demonstration wherein hand of one witness was washed in water which turned pink in colour was also claimed to have been given. A digital voice recorder (DVR) was also claimed to have been given to her to record the spot conversation. Witness claimed that thereafter they left CBI office at about 6.30 AM (PM) when she was accompanied by Inspector Shehnaz Khan and reached near PS Hari Nagar at around 7.45 PM. She claimed that as instructed by accused Mahender, she made a call from her mobile phone but did not remember to whom it belonged and that during the said conversation accused Mahender asked them to reach outside the restaurant situated in the market. She claimed that even while reaching the said restaurant, they had telephonic conversation on 4 - 5 occasions to know her location. She claimed that in the meanwhile both the accused persons arrived near the restaurant and asked them to come inside where they went and sat. She claimed that accused Sukhdev asked her if she had brought the money whereupon she inquired from him if he would close the case and not register FIR against her after accepting the money. Insepctor Shehnaz was claimed to have asked Sukhdev as to why such a huge amount was being demanded by him whereupon accused was stated to have claimed that the demanded amount was nothing in view of the complaint. She claimed CC No. 87/2008 Page8 of 66 that as soon as she opened her hand bag for taking out the money, HC Mahender gestured her to come near him whereafter he claimed that money should be handed over to him and not to Sukhdev. Witness claimed that she came back to her seat, opened the hand bag, took out the money and handed it over to Mahender. Mahender was claimed to have accepted the bribe amount with his right hand and having kept the same in his pocket. She claimed that thereafter both the accused stood up and they too got up. She claimed that they (witness & Shehnaz) then gave the pre-appointed signal whereupon the entire team members proceeded and apprehended Sukhdev at the spot. It was claimed that Mahender tried to run away but was over-powered. She claimed that Mahender had entered into a scuffle while being apprehended and was brought inside the Restaurant thereafter. She claimed that the accused persons were asked if they had demanded bribe whereupon they kept quiet and bowed their heads. It was claimed that the witness Tilak Ram was directed to take out money from pocket of pant of the accused and the serial numbers thereof were tallied with the list earlier prepared. Witness identified the currency notes Ex.P-1/1 to Ex.P-1/30 produced from the Mallkhana. She further stated about right hand wash of accused Mahender being taken wherein water turned pink and was kept in a bottle and sealed. Wash of right side pocket of pant of Mahender was also claimed to have been taken in a glass of water which turned pink. The solution was claimed to have been kept in a bottle and sealed. Handkerchief of accused Mahender was also claimed to have been washed in a glass CC No. 87/2008 Page9 of 66 of water which turned pink. It too was claimed to have been kept in a bottle and sealed. Witness claimed that the DVR was played and seized. It was claimed that on asking of CBI Officers, Sukhdev claimed that the complaint lodged against the witness was lying in the P.S. All the proceedings that took place were claimed to have been reduced into writing vide Recovery Memo Ex.PW-6/1. Witness identified her signature on the same. She further claimed that some members of the Trap Team went to P.S. Hari Nagar where she and Inspector Shehnaz remained on the Ground Floor while male members of the Trap Team who had come to the P.S. with accused Sukhdev went upstairs where his room was situated while accused Mahender had remained in the Restaurant alongwith some member of the trap team. Witness claimed that the DVR was taken back from her by I.O. at the spot itself. She claimed that it was played and a copy was prepared. It was further claimed that she was again called by Inspector Rajiv Mathur on 16.8.2007 to the CBI office where cassette was played and she identified voices of Inspector Shehnaz, accused persons and her own voice. She also identified her signature on the transcript cum voice identification Memo (D-11) which was proved as Ex. PW-3/1. She also identified her signatures on transcript of the pre-trap conversation which was proved as Ex. PW-3/2 and also on transcript of the spot conversation Ex. PW-3/3. Witness also identified plastic cover of audio cassette (Q1) as Ex. P-2 and the audio cassette as Ex. P-3 and the cloth wrapper Ex. P-4 and also identified signatures of the two independent witnesses. When the audio cassette Ex.
P-3 was played, she also identified voices of the two
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independent witnesses and her own voice and co-related the same with the transcript Ex PW-3/2. While referring to portion D - D on the transcript Ex. PW-3/2, witness claimed that it was the conversation between her and Mahender. Conversation at point E to E on the transcript Ex. PW-3/2 was claimed to be between Inspector Amit Vikram Bhardwaj (who was posing as her husband) and accused Mahender. She claimed that the name "Neetuji" as reflected in the transcript Ex. PW-3/2 referred to her because despite her repeated advice to accused Mahender that she was not "Neetuji" he used to address her as such. Witness also identified voices of accused Mahender, Amit Vikram Bhardwaj and her own voice as recorded in the cassette and reflected in the transcript Ex. PW-3/2. She claimed that on 23.5.2007 she had called up on mobile phone of accused Sukhdev who did not respond. She claimed that after 5 - 7 minutes she had received a call from HC Mahender on her mobile phone and talks took place between her and Mahender. She claimed that she had never stated about having talks with ASI Sukhdev and did not know how by mistake name of ASI Sukhdev came to be mentioned in the Memo Ex. PW-5/2. When the spot conversation cassette Ex. P-40 was produced and played in court, witness submitted that contents of the said recording were not clearly audible. She further claimed that the words "Woh hai - woh hai" audible in the recording were uttered in the female and male voices at the time when accused Mahender was running away with the bribe money. She further claimed that the recording instrument was switched on when they were waiting for both accused outside PS Hari CC No. 87/2008 Page11 of 66 Nagar and were proceeding towards a nearby Restaurant as per their directions.
During course of her cross examination witness claimed that her statement U/s 161 Cr. P.C. was recorded in CBI office in July, 2007 but she did not remember the time and date thereof. She denied the suggestion of having deposed as a witness or complainant in more than 50 cases. She claimed that she did not know any Sanjay Grover S/o O.P. Grover and did not know if he had any dispute with Lalender Khanna who was brother of her friend. She admitted having filed a complaint against ACP B.K. Singh in 1997 and that an FIR No. 1386/97, PS Connaught Place had been registered against her. She also admitted having filed Civil Writ Petition 530/01 before Hon'ble High Court of Delhi which was dismissed and a penalty of Rs.5,000/- was imposed on her due to her non appearance. She further admitted that in the said Writ Petition Hon'ble High Court had stated that proceedings U/s 182 IPC may be initiated against her. She admitted that FIR 560/93, PS Mandir Marg U/s 354 IPC was registered on her complaint against one Umed Singh. She did not remember if she had ever lodged a complaint in 1994 against SHO, PS Rajouri Garden. She denied the suggestion that FIR 19/93 was registered at PS Gandhi Nagar U/s 420/468/471 IPC against Rekha Bhandari and Raghubir Singh or that she had pressurized the SHO to release them. She claimed that she did not remember if she had lodged any complaint against Inspector V.K Malhotra, SHO PS Connaught Place. She denied having pressurized him not to remove drug peddlers from the area. She denied CC No. 87/2008 Page12 of 66 having lodged false case FIR 450/94, PS Connaught Place against Ct. Pramod Kumar. She admitted that in the year 1994 a Kalandra U/s 107/150 Cr. P.C was registered against her on one hand and Shri Bishamber Nath Pathak on the other. She further denied the suggestion that a Kalandra vide DD 25-A dated 5.9.1994, PS Mandir Marg had been filed against her husband and her mother-in-law. She claimed that she did not know if any case vide DD 6A dated 26.4.1994, PS Mandir Marg was registered against her on allegation of having slapped Shyam Nath Mishra. She further denied the suggestion of having lodged a false complaint against Shyam Sunder, an employee of MTNL. She admitted being a witness in case CBI Vs. Devender Rathi then pending before Ld. Court of Shri V.K. Maheshwari, Special Judge. She claimed having mentioned in her complaint Ex. PW-5/1 that on 4/5.5.2007 she alongwith her family had gone for dinner to Kilokari Village near Ashram. She was confronted with her complaint Ex. PW-5/1 where it was not so recorded. She claimed having written the complaint Ex. PW-5/1 in CBI office and that thereafter she was seeing it for the first time in court. She claimed that her statement U/s 161 Cr. P.C. was not recorded in her presence but she was interrogated in connection with this case. She admitted that she had not mentioned in her complaint that on 8.5.2007 Khanna had told her to appear in PS Hari Nagar or that they went there on 9.5.2007. She claimed that while her statements were being recorded in CBI office, she was told to be brief and to the point. She admitted that she had not mentioned in her complaint that on 18.5.2007 both the accused persons gave CC No. 87/2008 Page13 of 66 repeated calls on her mobile phone stating that they were going to register a case upon which she told them that they could do anything which they like. She further claimed that she had not stated in the complaint about her telling Sukhdev that her husband was not at home on which Sukhdev told her that she was not intelligent enough to comprehend and he would make her husband understand as to how much money would be spent in case she was put behind bars. She further claimed having not mentioned in the complaint about her enquiring from Sukhdev if after accepting the money, he would close the case and not register FIR against her. She further admitted having not mentioned in her statement Ex.PW-3/DB about Inspector Shehnaz Khan having asked Sukhdev as to why such a huge amount was being demanded by him, upon which he claimed that the demanded amount was nothing since complaint against her (witness) contained a threat to be killed. She claimed that she did not remember if on the date of trap, her statement was recorded by the I.O. in his own handwriting. She claimed that she did not remember if statement of none of the witnesses was recorded at the spot or not. She also did not remember whether or not any Computer/ Laptop was available in the Restaurant. She further claimed that she did not remember the number of the Digital Recorder. She claimed that the Digital Recorder had not been sealed but the cassette prepared was sealed. She did not remember to whom the seal was given after use. She denied the suggestion that she did not so remember as infact no sealing of the cassette had taken place. She denied the suggestion that accused Sukhdev had neither demanded any CC No. 87/2008 Page14 of 66 bribe nor ever accepted it. She volunteered that he did demand bribe. She further denied the suggestion that she never had any telephonic conversation with Sukhdev. She further denied the suggestion that the entire writing work was done in CBI Office. She admitted that Neetu Sharma was not her name. She further volunteered that she had been called in P.S. Hari Nagar by the accused persons who addressed her as 'Neetu Sharma' and that she told them that she was not 'Neetu Sharma'. She denied the suggestion that accused had never called her in P.S. Hari Nagar or that she did not have any conversation with the accused there. She further denied the suggestion that she had given false evidence in 40/ 50 cases or that the accused had been falsely implicated with a view of extract money. She also denied the suggestion that she was a stock witness of CBI or that the accused had not been arrested in the manner as stated by her or that no raid as alleged was ever conducted. She further claimed that telephone calls from both the accused persons used to be received by her on her Mobile No. 9911971000. She claimed having received the first call of Sukhdev Singh on 08th/09th May, 2007. She claimed that she had been interrogated about 2 to 2 ½ months after the trap and had not visited CBI Office in between. She further denied the suggestion of having told CBI Officer that she was also known by the name of 'Neetu Sharma' or that Police officials of P.S. Hari Nagar also knew her by that name. She was confronted with portion B to B of her statement Ex.PW-3/DB where it was so recorded. She claimed that she did not know any person by the name of 'Sanjay Grover' and had not come to know that Sanjay Grover CC No. 87/2008 Page15 of 66 had lodged a complaint against 'Neetu Sharma'. She claimed that she had not stated to the CBI Officer that Lalinder Khanna had telephonically talked to Sanjay Grover using her Mobile Phone. She was confronted with portion C to C of statement Ex.PW-3/DB where it was so recorded. She admitted that statement Ex.PW-3/DB had not been read over to her. She denied the suggestion that one 'Neetu Sharma' had been calling up 'Sanjay Grover' from her Mobile No. 9911971000 for the last 15 days prior to 07.05.2007. She further denied the suggestion that it was she who was pretending as 'Neetu Sharma' and calling Sanjay Grover on his No. 9312259891. She further denied the suggestion of having told CBI Officers that Sanjay Grover was a Property Dealer. She was confronted with portion D to D of her statement Ex.PW-3/DB where it was so recorded. The witness further claimed that when she had gone to CBI Office, she had with her a written complaint which had been returned back to her saying that it was a lengthy one and not in proper form. She claimed that she was told to write a complaint containing all facts in brief and so she wrote the fresh complaint Ex.PW-5/1. She claimed having reached CBI Office at about 2.00 - 3.00 P.M. on 23.05.2007 and claimed that the facts mentioned in complaint Ex.PW-5/1 were correctly written by her. She denied the suggestion that Atul Vashisht had accompanied her to CBI Office on 23.05.2007 or that he was also present in P.S. Hari Nagar at the time of occurrence. She claimed that by chance he was present outside the Restaurant when the accuseds were trying to flea from the spot and were apprehended by CBI Officials and Atul CC No. 87/2008 Page16 of 66 Vashisht. She further claimed that infact Atul had come at about 11.00 P.M. for picking her up. She admitted that Atul was husband of her friend Rajni who was sister of Lalinder Khanna. She further claimed that although she had asked Mahender to show her the complaint made against her, no such complaint was shown to her. She reiterated about having visited CBI Office in connection with this case only once after 23.05.2007. She claimed that she did not remember if she was called telephonically or if any notice was sent to her, but claimed that facts were enquired from her on that day and cassette was played. She claimed that when she went to CBI Office after 23.05.2007, cassette was played on Tape Recorder when she reiterated that in the Transcription recorded on 23.05.2007 pertaining to telephonic conversation from CBI Office, name of H.C. Mahender was to be metioned in place of name of ASI Sukhdev as the voice was of Mahender and not Sukhdev. She claimed that she had signed some papers in CBI office on 23.5.2007 and had gone through the same before signing. She claimed that she had pointed out the wrong recording of name of Sukhdev in place of Mahender in the transcription on 23.5.2007 itself. She admitted that during telephonic conversation, Inspector Amit had introduced himself as husband of Neetuji. Witness claimed that neither she nor her husband had given any written complaint to any other Authority before lodging complaint with CBI. She admitted that during the telephonic conversation as reflected in Ex. PW-3/2, neither she nor Inspector Amit had asked the accused as to why he had been harassing and demanding bribe from her (witness) whereas CC No. 87/2008 Page17 of 66 the complaint lodged was against one Neetu Sharma. She claimed that she did not know if Lalinder Khanna, his brother Anil Khanna and Sanjay Grover were business partners. She claimed that on 23.5.2007 after having talked to HC Mahender on his mobile, she had told CBI officer about having talked to him. She volunteered that due to mistake in Ex.PW-5/2 name of Sukhdev Singh was mentioned in place of Mahender. She claimed that she had told for rectification of the same. She also did not remember whether the said conversation was recorded in a digital recorder or an audio cassette recorder. She further volunteered that on 23.5.2007 since morning she had been receiving phone calls of Sukhdev Singh on her mobile wherein he was insisting to talk to her husband. She further claimed that although infact she had talked to Mahender Singh with whom Inspector Amit too had a talk, due to mistake name of Sukhdev Singh came to be recorded in Ex. PW-5/2 in place of name of Mahender Singh. She claimed that the transcript was prepared immediately after conclusion of the said conversation and all pre-trap documents were prepared in CBI office thereafter. She claimed that the statement Ex. PW-3/DB was not typed in her presence. She claimed that she had not told the IO Inspector Rajeev that she had introduced her name as Neetu and police personnel addressed her using the said name. She was duly confronted with portion E - E of statement Ex. PW-3/DB where it was so recorded. She claimed having reached CBI office at about 2.00 - 2.30 PM on 23.5.2007 and claimed that the pre-trap proceedings including recording of telephonic conversation might have consumed 2 - 3 hours. Witness CC No. 87/2008 Page18 of 66 claimed having raised an objection before SP, CBI and Inspector Amit regarding non mentioning of name of Inspector Hoshiyar Singh in the FIR Ex/ PW-3/DX. She claimed that she was told that she had met him only once while money had been demanded by Sukhdev and Mahender and not by Hoshiyar Singh and as such case had been registered against them and not Hoshiyar Singh. She further claimed that she had gone to the spot from CBI office in her chauffeur driven car and that after leaving her at the spot, the driver left the spot in the car. She claimed that she was a witness in another trap case of CBI registered on complaint of one Anil Nijahawan. She further claimed that she was a prosecution witness in one case and complainant in three cases pertaining to anti-corruption including the present one. She claimed that she did not remember as to how many Writ Petitions had been filed by her against officials of Delhi Police before Hon'ble High Court of Delhi. She claimed having told Inspector Amit and the SP in presence of independent witnesses that it was HC Mahender who had talked to her over telephone. She claimed that it appeared that due to some confusion in mind of CBI officers, name of ASI Sukhdev came to be recorded instead of Mahender Singh. She claimed that Vijender Sharma was earlier deputed as shadow witness to remain with her but he was not sharing the same table and was present near another table. She denied the suggestion that none of the independent witnesses and specially Vijender Sharma were present inside the restaurant. She denied the suggestion of having foisted a false case against accused persons or that the independent witnesses CC No. 87/2008 Page19 of 66 had not been allowed to remain present in the restaurant at the time of transaction. She claimed that she did not recollect as to where she had kept the DVR while she was in the restaurant. She did not remember as to how many chairs and tables were placed in the restaurant and also did not recollect if door of the restaurant was of glass or not. She also did not remember if the said door opened both sides i.e. inside or outside or not. She claimed that when she and Inspector Shehnaz came out of the restaurant, the accused persons were moving ahead and they were following the accused. She claimed that CBI members met them outside i.e. near entrance gate of the restaurant. She claimed that Inspector Shehnaz as well as the shadow witness had given the signal to CBI team. She claimed that while the CBI team tried to apprehend Mahender, a scuffle took place and some passersby who too had gathered, intervened. She claimed that Mahender fell down during the scuffle. When the pant Ex. P-37 was shown to the witness, she claimed that she did not remember if it was the same which was worn by accused Mahender at the relevant time. She claimed that the DVR was about 5 Inches long and 1 Inch wide. She claimed that as far as she remembered, the conversation between her and the accused that had been recorded in CBI office was not so recorded on the DVR which infact was handed over to her subsequently. She could not say if the recording therein was done on a tape recorder, digital tape recorder or a digital voice recorder. She claimed that as far as she remembered, the cassette was played back on the same instrument by which it was recorded. She could not say whether or not that CC No. 87/2008 Page20 of 66 instrument was attached to her Mobile Phone. She claimed that DVR was handed over to her with instruction to switch it 'ON' before approaching the accused. She denied the suggestion that she had gone only to lodge a complaint against Inspector Hoshiyar Singh or that she had falsely named 'Mahender' as being the person with whom she had a telephonic talk. She claimed that there was confusion in mind of CBI Officials but she was very clear that the call was made by Mahender. She claimed that it was rightly mentioned in the Recovery Memo Ex.PW-6/1 that after reaching opposite P.S. Hari Nagar she had contacted accused Sukhdev on his Mobile No. 9911244551 from her Mobile wherein conversation ensued. She claimed that she did not remember whether or not the said conversation was being recorded. She denied the suggestion that neither Sukhdev nor Mahender had asked any money from her or that she had got this false case registered as she wanted to implicate Inspector Hoshiyar Singh. She further denied the suggestion that after coming out from the Restaurant, she tried to forcibly put money in pocket of Mahender. She further denied the suggestion that Atul Vashisht was present in the Restaurant at the relevant time or that Mahender had been manhandled by CBI Officers. She claimed that she could not say as to whether or not CBI officials had called upon anyone from public to join proceedings as a witness. She admitted that Atul Vashisht was a co-accused in Ashok Malhotra's case wherein D.K. Thakur was the I.O. and that she was a complainant in a case against D.K. Thakur. She denied the suggestion that she was deposing falsely.
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7 PW-4 Shri Pawan Singh was the Nodal Officer
from IDEA Cellular Ltd. He proved his letter dated 10.07.2007 (Ex.PW-4/1) vide which name & address of the subscribers alongwith copies of application Form and call details in respect of Mobile No. 9911971000 and 9911244551 for the period April, 2007 to May, 2007 had been forwarded to CBI. He further claimed that Mobile No. 9911971000 had been alloted to Smt. Kusum Sehgal. Customer Service Agreement Form in that regard was proved as Ex.PW-4/2 and photocopy of her DL as Ex.PW-4/3. Call details in respect of the said number were proved as Ex.PW-4/8. The other number 9911244551 was claimed to have been alloted to Sukhdev Singh. Customer Service Agreement Form was proved as Ex.PW-4/4 and photocopies of ID Card of Sukhdev Singh were proved as Ex.W-4/5 and 4/6. Call details in respect of said number were proved as Ex.PW-4/7.
During course of cross-examination, witness admitted that outgoing call was made from 9911971000 to 9868660818 of accused Mahender at 08:12 P.M. on 23.05.2007 for a duration of 24 Seconds as reflected at point 'A' on Ex.PW-4/8. He denied the suggestion that the call details Ex.PW-4/4, Ex.PW-4/7 & Ex.PW-4/8 had been manipulated after arrest of Sukhdev Singh.
8 PW-5 Shri Vijender Kumar Sharma was one of the independent witnesses associated in the Trap Team. He claimed that on direction of his Sr. Officer, he reached CBI Office at about 3.00 P.M. on 23.05.2007 alongwith his Colleague Tilak Ram from Bank of India. He claimed that he met a female complainant in CBI Office who had already CC No. 87/2008 Page22 of 66 submitted a complaint to the effect that some Inspector had been demanding bribe. Witness claimed having seen the complaint and proved it as Ex.PW-5/1. He claimed that at about 3:30 P.M. / 4.00 P.M., complainant was directed by CBI Officer to give a call from her Mobile but there was no response from the other side. He further stated that about 4 - 5 minutes thereafter complainant received a call on her Mobile whereupon she put her Phone on Speaker mode. He claimed that the Phone had provision of Voice recording and even a separate Digital Tape Recorder was there. He claimed that after the conversation was over, the tape recording was played and it was noticed that there was a demand made therein. He claimed that infact the caller wanted to talk to husband of the complainant and Inspector A.V. Bhardwaj posing as her husband had talked to the Caller. Recording was claimed to have been transferred from the Digital Recorder to a Cassette which cassette was then sealed. Witness claimed having signed the same. Memo prepared in that regard was proved as Ex.PW-5/2. Thereafter, witness deposed about pre-trap demonstration proceedings and also identified his signature on the Handing Over Memo and its Annexures (Ex.PW-5/3). He claimed that after completion of the proceedings in CBI Office, they left at 6.30/7.00 P.M. The Digital Recorder was claimed to have been handed over to the complainant who kept it in her purse/ handbag. He claimed that they all reached near Aggarwal Sweet Shop, Hari Nagar at about 7.30 P.M. where he had been asked to act as a shadow witness. He claimed that the complainant alongwith Inspector Shehnaz Khan moved towards the Restaurant and CC No. 87/2008 Page23 of 66 went just ahead of it while he was watching them at a distance of 10 to 15 feet. He further stated that after about 10 minutes, two persons came near the complainant, Inspector Khan had a talk with them and they all went inside the Restaurant. He claimed that he and others were watching them from outside while they were sitting inside the Restaurant. He stated that after about 12 - 14 minutes, Inspector Shehnaz and complainant, followed by the accused persons came out and then Inspector Khan and the complainant gave pre-appointed signal by scratching their head. Trap Team members reportedly rushed and after climbing stairs caught hold of both the accuseds. He further stated that one of the accused tried to free himself and while climbing down the stairs, slipped but was apprehended by CBI officers. It was claimed that on hearing commotion a crowd collected and then disbursed after one of the CBI officers showed his ID card. Both the accused were then claimed to have been taken in the restaurant. He claimed that there were two or three customers sitting in the restaurant who were asked to leave. Tilak Raj was claimed to have been directed to search the accused and on search of HC Mahender, he was claimed to have recovered Rs.30,000/- from pocket of his pant. Witness then stated about post-trap proceedings in consonance with prosecution allegation. He also identified the case property. He further stated that the voice recording instrument was taken back from the complainant and was heard at the spot. It was claimed that all proceedings were recorded in the Recovery Memo Ex. PW-6/1. Witness identified his signature therein. He also identified his signatures on other documents.
CC No. 87/2008 Page24 of 66 Specimen voices of accused were claimed to have been recorded on 24.5.2007. Witness identified his signatures on documents in that regard. He claimed that he was again called in CBI office on 16.8.2007 when the cassettes were played, heard and transcription prepared in his presence and also that of Tilak Ram. He claimed that he did not remember as to who had identified the voices. After going through the Memo Ex. PW-3/1 witness claimed that the same were identified by complainant Kusum Sehgal.
During course of cross examination by Ld. Counsels, witness claimed that he was never joined by CBI as a witness in any case prior to the present one. He claimed that after reaching CBI office he had remained there for about 1 ½ - 2 hours. Tilak Ram was claimed to have been already present in the CBI office. He claimed that he did not have any conversation there with Tilak Ram, Kusum Sehgal or any other public person. He denied the suggestion that the tape recorded conversation was never played or heard in his presence or that infact no such conversation was ever recorded. He denied the suggestion that the transcription having conversation of accused Sukhdev Singh was fabricated. He did not remember whether or not the digital tape recorder was sealed but claimed that it had been seized and a Memo prepared in that regard. Subsequently, witness claimed that no separate Memo had been prepared in that regard but the facts were mentioned in the Recovery Memo Ex. PW-6/1. It was claimed that the trap team had left CBI office in two vehicles i.e. one of the complainant and the other of CBI. He could not give description of the vehicles. The CC No. 87/2008 Page25 of 66 spot was claimed to be densely populated area and many public persons were stated to be coming and going at that time. Witness claimed that no public person was asked to join the proceedings. It was further claimed that the writing work commenced at about 8.30 PM and proceedings continued at the spot till about 11.00 - 11.30 PM. He claimed that the accused were following Inspector Shehnaz and the complainant while entering the restaurant. He claimed that no court permission had been taken before taking specimen voice of the accused. He admitted that Sukhdev had not demanded or accepted any bribe in his presence. He denied the suggestion that the transcriptions were fabricated. He denied the suggestion of being a stock witness of CBI or that he had not participated in any trap in respect of this case. He further claimed that the complaint shown to him in CBI office was in respect of demand of bribe by some Inspectors and officials of PS Hari Nagar. He further stated that after the initial telephonic conversation was recorded and heard, the complainant Kusum Sehgal had told that accused Sukhdev was demanding bribe. Witness specified that no transcription was prepared at that time. He claimed that some powder had been taken out from brief-case and currency notes were smeared with the same and powder was again kept in the briefcase. He claimed that before leaving CBI office he was directed to act as shadow witness and to remain with the complainant at the time of bribe transaction. Aggarwal Sweet House was claimed to be at a distance of about 400 - 500 meter away from PS Hari Nagar. He claimed that there were 8 - 10 stairs at entry point of the restaurant from level of the CC No. 87/2008 Page26 of 66 road. It was stated that the telephonic conversation that had taken place in office of CBI was recorded on the recording device as well as on mobile phone of the complainant. He claimed that the conversation had not been transferred on a cassette in his presence. He further stated that the cassette had not been played in his presence to check if it was blank or had any pre-recording. He claimed having heard the recording on the mobile as well as DVR during course of preparation of the transcript on 16.8.2007. He claimed that it took about 2 - 2.5 hours in preparing the transcript Ex. PW-3/2. He further claimed that the glass bottles were clean and did not have any paper chit on them when he saw the same at the spot. Paper chits were claimed to have been pasted on the bottles subsequently. He specifically claimed that there was no whisky or any label mark on the bottle. Witness got marked the passage "P" and his position "B" on the site plan Ex. PW-9/2. It was claimed that some grappling had taken place before accused was finally apprehended. He claimed that the transcript was prepared on 16.8.2007 by some Mr. Yadav. He further stated that the conversation that had taken place at the spot was not converted or transferred into any cassette at the spot in his presence. He further claimed that a large crowd had collected near stair-case of the restaurant but none of them had been requested to join the proceeding. He denied the suggestion that the bottle Ex. P-32 was not there at the spot or that the label therein had been subsequently pasted and got signed. He admitted that the said bottle had the label "Liberty Deluxe Whisky" pasted on it underneath the paper chit bearing their signatures. He claimed that accused CC No. 87/2008 Page27 of 66 had been taken from the spot to CBI office without any pant. He claimed that he had gone from office of CBI to the spot in car of the complainant which was being driven by her driver. He could not say if the said person was being referred to as Atul Bhai saheb by the complainant but claimed that she was referring to him as Bhai Saheb. He claimed that the complainant had not told any CBI officer in his presence that name of any one had been wrongly written in the transcript. He denied the suggestion that he was deposing falsely at instance of CBI officers and claimed that he could not say if the complaint made by complainant was against one Hoshiyar Singh. He denied the suggestion that he had not participated in any proceeding or that no money was recovered from pocket of pant of accused Mahender. He further denied the suggestion that the person who had driven car of the complainant had tried to forcibly put money in pocket of pant of accused Mahender.
9 PW-6 Ravi Kumar claimed that on 23.5.2007 he was working as Cashier in Hotel Paradise. He stated that on that day at about 7.45 - 8.00 PM four persons i.e. two ladies and two gents came and sat on chairs near corner table in the restaurant. Water was reportedly served to them. It was claimed that when they demanded cold drink, witness replied that the same was not available. He stated that thereafter all of them went out. Witness stated that then there was commotion / noise outside the restaurant on other side of road near Juice rehari. He claimed that 4 - 5 persons were bringing one person inside the restaurant and when he himself objected, the persons claimed to be from CBI and stated that CC No. 87/2008 Page28 of 66 they had to do some writing work. He claimed that said persons sat on the chairs near the last table and kept working till 12.30 - 1.00 PM. He claimed that his signature had also been obtained on Recovery Memo Ex. PW-6/1.
During course of cross examination witness claimed that he could read and write English but could not understand its meaning. He admitted that he was not aware about contents of Ex. PW-6/1. He denied the suggestion that CBI officers did not do any writing work in the restaurant. He claimed that they had entered the restaurant at about 7.45 - 8.00 PM. He denied the suggestion that he was deposing falsely at instance of CBI.
10 PW-7 K.K. Sarkar was the owner of Paradise Restaurant. He claimed that at about 8.30 PM on 23.5.2007 while he was present in his residence, his employee Ravi called him on his mobile informing that some persons claiming to be from CBI had come and wanted to come inside the restaurant for conducting proceedings. Witness claimed that he himself went to his restaurant and on his reaching there, the CBI officers showed their identity cards and requested that they wanted to conduct proceedings by sitting there. He claimed that he had agreed to their request and stood at gate of the restaurant, while CBI officers kept on doing their work inside. He claimed that his signature had also been obtained on the proceedings conducted, and duly identified his signature on the Recovery Memo Ex. PW-6/1.
During course of cross examination by Ld. Counsels for accuseds, witness claimed that contents of Ex. PW-6/1 had not been read over to him by CBI officers who CC No. 87/2008 Page29 of 66 gave it to him with direction to go through the same and then sign. Witness claimed that due to scarcity of time he did not go through contents of the documents. Witness could not say anything regarding number of papers prepared by CBI officers. He denied the suggestion that no writing work was done in the restaurant in his presence or that he was deposing falsely. He also denied the suggestion that he had not received any information from his employee. 11 PW-8 Shri Bal Kishan claimed that he had been posted in P.S. Hari Nagar from December, 2006 till March, 2009. He identified his signature on the Seizure Memo Ex.PW-8/1 which was dated 24.10.2007. A Local Complaint Register of P.S. Hari Nagar for the year 2007 (Ex.PW-8/2) being maintained by accused Mahender Singh was claimed to have been handed over to CBI Officer. Relevant entry at Srl. No. 551 of the Register was proved as Ex.PW-8/2A. He claimed that the said complaint made by Sanjay Grover against Lalinder, Anil Khanna & Neetu Sharma had been marked to ASI Sukhdev. The complaint dated 07.05.2007 was proved as Ex.PW-8/3. Witness also proved various DD Entries of 09.05.2007 to 23.05.2007 as Ex.PW-8/4 to Ex.PW-8/12. Photocopies of the entries alongwith handwritten copies were claimed to have been handed over to CBI Officer vide Seizure Memo Ex.PW-8/13.
During course of cross-examination, witness claimed that DD 7A dated 24.05.2007 P.S. Hari Nagar was in handwriting of HC Chhat Ram while the handwritten copy thereof was Ex.PW-8/DA. He admitted that portion Mark A to A in the original DD No. 7A dated 24.05.2007 did not find CC No. 87/2008 Page30 of 66 mention in Ex.PW-8/DA. He claimed that he was not aware if any Sanjay Grover had filed any complaint against Kusum Sehgal in P.S. Hari Nagar during those days. He denied the suggestion that the DD entries exhibited were fabricated or created as an afterthought.
12 PW-9 Shri Tilak Ram was the other independent witness said to have been associated in the Trap proceedings. He claimed that on receipt of instructions, he alongwith Vijender Kumar had gone to CBI Office at about 12:00 Noon. While deposing in respect of the pre-trap proceedings and the conversation, witness claimed that the complainant had told the Caller that she could not come to the P.S. and she had to go elsewhere. He claimed that the conversation was recorded in a Digital Recorder and the cassette was sealed. Thereafter witness stated about the pre- trap demonstration and other proceedings. It was claimed that they left CBI Office at about 7.00 - 7.30 P.M. for P.S. Hari Nagar. He further claimed that after reaching P.S. Hari Nagar, Kusum Sehgal made a telephone call to P.S. Hari Nagar informing that they had reached near the Restaurant and therefore, they (the other party) should also come. He claimed that thereafter two persons came and alongwith Kusum Sehgal and Inspector Shehnaz Khan went towards the Restaurant. He claimed that as they were standing outside the Restaurant, he did not know what happened inside. Inspector Khan and Kusum were claimed to have come outside the Restaurant and then gave the pre-appointed signal by scratching their head. Thereafter, he deposed about apprehension of the accused persons and other post trap CC No. 87/2008 Page31 of 66 proceedings as per prosecution allegations. He also identified the Case property and his signature on the documents. He also deposed about specimen voices of the accused being taken on 24.05.2007 and identified his signatures on documents in that regard. He then deposed about preparation of Transcript on 16.08.2007 in CBI Office. He claimed that the Digital Recorder given to complainant on 23.05.2007 was played after being taken back from her but on account of commotion, it was inaudible. Witness identified his signature on the Cassettes, covers and other articles.
During course of his cross-examination, witness claimed that no demand had been made by accused Sukhdev Singh in his presence. He volunteered that accused had made a demand over telephone which was heard by him. He admitted that there was no acceptance of money in his presence. He further denied the suggestion that accused Sukhdev was picked up from P.S. Hari Nagar. He denied the suggestion that entire writing work was done by sitting in CBI Office or that signatures of accused were taken on blank papers. He further claimed that he had gone to CBI Office alone in his vehicle. He further claimed that during course of telephonic conversation recorded in CBI Office, complainant had stated that voice from the other side was that of accused Sukhdev. He specifically stated that no Audio Cassette Recorder was taken along during trap proceedings. He further claimed that complainant's vehicle was driven by a male person but he could not say if the said person was Lalinder Khanna. He admitted that the Driver remained with them throughout the proceedings. He further claimed that before CC No. 87/2008 Page32 of 66 leaving CBI Office, Shri Vijender had been directed to remain close to the complainant. He admitted that Shri Vijender Sharma had not entered the Restaurant till the complainant and Inspector Khan came out. He further admitted that when complainant shouted for arrest of accused Mahender, the male member accompanying Kusum Sehgal and some Police Walas apprehended accused Mahender and gave beatings to him. He claimed that the Digital Recorder was kept by Kusum in her Bag and that at that time, neither copy of cassette was prepared nor the cassette played.
During course of re-examination by ld. PP, witness claimed that copy of cassette was prepared in CBI Office and not at the spot. He claimed that the recording was heard through Digital Recorder at the spot. He denied the suggestion that copy of cassette was not prepared in CBI Office but was prepared at the spot.
13 PW-10 Shri R.S. Yadav proved his letter Ex.PW-10/1 vide which call detail report of Mobile No. 9868660818 for 01.04.2007 to 31.05.2007 had been sent to CBI. The call detail sheets were proved as Ex. PW-10/2. Letter dated 20.7.07 of Shri Sovan Singh (JTO) was proved as Ex. PW-10/3. Photocopy of Agreement Form of Mobile connection in the name of Mahender Singh was proved as Ex. PW-10/4.
During cross examination witness claimed that in case for the same period, reports about call details are obtained at different points of time, some difference might creep up on account of erasion of some data for want of space.
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14 PW-11 Inspector Rajeev Mathur identified
signature of SP Shri N.M. Singh at point X on the FIR Ex. PW-3/DX. He claimed that Inspector A.V. Bhardwaj was appointed TLO of this case. He further claimed that investigation of the case was entrusted to him in July / August, 2007. Witness claimed having correctly recorded statements of witnesses U/s 161 Cr. P.C.. Such like statements were claimed to be Ex. PW-3/DB and collectively Ex. PW-11/A. He further claimed that on 16.8.2007 transcription cum voice identification Memo Ex. PW-3/1 was prepared. He identified his signature at Point X on the same. He further claimed that the audio cassettes were sent for examination to CFSL. It was claimed that on 24.10.2007 local complaint register was seized from PS Hari Nagar vide Memo Ex. PW-8/1. He further claimed that after completion of investigation, charge sheet was filed under his signature.
During course of cross examination, witness claimed that he might have joined nearly 100 raids but could not say if the independent witnesses of this case were also members of raiding party of all those cases. He claimed having recorded statements of witnesses on computer. He further submitted that as he had not visited the spot of incident, he could not say whether or not raiding party had any computer with it. After seeking permission from the court, witness went through the records and then submitted that the CFSL report Ex. PW-1/2 referred to Sukhdev Singh at Page D-17/7. He claimed that he had never visited PS Hari Nagar to make any inquiry in respect of accused Sukhdev Singh. He denied the suggestion that statements of witnesses had been CC No. 87/2008 Page34 of 66 fabricated by him. He admitted that during course of investigation, no document had been produced before him by the complainant to the effect that she was also known by the name Neetu Sharma. He denied the suggestion that no such document was taken on record as infact a false complaint was made by Kusum Sehgal under the name of Neetu Sharma. He claimed that he did not remember the exact date when investigation was marked to him. He specifically claimed that Kusum Sehgal had never complained to him that names of accused had been wrongly mentioned anywhere in the transcript prepared nor had she ever complained against letting off of Inspector Hoshiyar Singh. He further admitted that no examination was called for from CFSL to the effect that if the recorded conversation was tampered with. Witness claimed that during course of investigation, he had not called for any explanation from the TLO in respect of portions depicted in transcript Ex. PW-3/2 & Ex. PW-3/3 as (...........) or regarding there being no introductory voice of any independent witness in transcript Ex. PW-3/3 or in respect of the "inaudible and unclear" portions therein. He claimed that during his investigation he did not make any inquiry from PS Hari Nagar in respect of the complaint Ex. PW-8/3 dated 7.5.2007. He further claimed that alias of Kusum Sehgal as Neetu Sharma had been mentioned on her statement Ex. PW-3/DB only on her telling about it and not of his own. He claimed that no action was recommended against Inspector Hoshiyar Singh, as during course of investigation no evidence came on record against him. He admitted that the original DVR was never seen by him. He denied the suggestion that CC No. 87/2008 Page35 of 66 he was deposing falsely or had not conducted a fair investigation.
15 PW-12 Inspector Shehnaz Khan claimed having participated in the trap laid in the present case. She claimed that on 23.05.2007 Inspector A.V. Bhardwaj called her in his room where she was introduced to the complainant Ms. Sehgal @ Neetu and the two independent witnesses, one of whom was named Trilok Nath. She also claimed to have seen the complaint written in Hindi language and stated that it was in respect of H.C. Mahender and ASI Sukhdev having demanded bribe from the complainant. She further stated that during verification proceedings, a call was received on Mobile Phone of the complainant from P.S. Hari Nagar and Mahender Singh was person on other side. It was claimed that when the caller insisted that Ms. Sehgal calls her husband, complainant informed the caller that her husband was busy and could not talk at that time. She further claimed that thereafter Inspector A.V. Bhardwaj talked to the caller posing as husband of the complainant. Thereafter, she stated about the pre-trap proceedings which took place during course of demonstration in CBI Office. She had also claimed that the conversation which was being recorded was converted onto a blank audio cassette on which voices of independent witnesses had already been recorded and then two copies of the cassette were prepared, both of which were sealed. She also identified her signature on the Handing Over Memo Ex.PW-5/3. It was claimed that at about 7.30 P.M., all members of the Trap Team left CBI Office and reached P.S. Hari Nagar at about 8.00 P.M. She claimed that after CC No. 87/2008 Page36 of 66 reaching there, the complainant gave a telephone call to ASI Sukhdev which was not picked up and then she called up Mahender on his Mobile who told her to stay where she was. She further stated that at about 8.10 P.M. both the accused came out of P.S. Hari Nagar and the complainant alongwith the witness went near them where she (witness) was introduced by the complainant as being her 'Bhabhi'. Witness claimed that thereafter all four of them went to Paradise Restaurant on asking of the accused persons. She claimed that while Mahender started taking rounds of the Restaurant, all three of them sat on Chairs. It was further claimed that the complainant went towards Mahender who demanded money by giving 'Aankh Ka Ishara', whereupon complainant stated that she had brought Rs.30,000/- upon which Mahender went near Sukhdev and told that she (complainant) had brought Rs. 30,000/-. Witness stated that Sukhdev claimed that what had been decided was final and then Mahender demanded money by gesturing by hand. It was claimed that Kusum then took out the money from her purse and handed it over to Mahender who accepted the same with his right hand and put it in right side pocket of his pant. She claimed that thereafter Mahender and Sukhdev stood up to go out of the Restaurant and she and Kusum gave the pre-appointed signal by scratching head with right hand. She claimed that team members were standing outside the Restaurant which had a transparent glass wall and that as soon as the accused persons were about to move out of gate of the Restaurant, team members met them. She further stated that although the accuseds tried to run away from the stairs, the team members CC No. 87/2008 Page37 of 66 caught hold of both of them. It was claimed that as public started to collect at the spot, the accused persons were brought inside the Restaurant. Thereafter, witness stated about hand wash being taken and also wash of inner side of pocket of pant of the accused and handkerchief and the solutions turning pink. She further claimed that currency notes had been recovered from pocket of pant of accused by the shadow witness Tilak Raj. She claimed that after the washes were taken, DVR which had been given to complainant earlier in CBI office was taken back and was played and heard by all present there. She claimed that the recording was then converted into a normal cassette with the help of a recorder, copy prepared and the first normal cassette converted into a pullanda and sealed. She claimed that it was marked as Mark-Q. All the proceedings conducted at the spot were claimed to have been recorded in Recovery Memo Ex. PW-6/1 and witness identified her signature thereupon. She further claimed that specimen of CBI seal was taken on a white paper and the original seal handed over to Tilak Raj. When the cassette Mark-Q (Ex. P-40) was played in Court, witness claimed that the portion "Thande mai kya rakha hai, thande mai kya hai" is in her voice and had been so spoken by her when ASI Sukhdev asked her to get some cold drink for him. The cassette appeared to contain only noises when it was played in Court.
During course of cross examination by Ld. Counsel for accused, witness claimed that although the pre- trap conversation had been recorded in CBI office in her presence, she could not tell the manner in which the said CC No. 87/2008 Page38 of 66 recording was done. She claimed that the conversation was for duration of 5 - 10 minutes and at that time complainant had a talk with Sukhdev and Mahender. After seeking permission from the Court and on seeing the documents, witness claimed that the transcript in respect of pre-trap conversation (PTC) was dated 16.8.2007. She claimed that it was the complainant who pointed out name of accused in the recorded PTC. She claimed that she could not say if complainant had claimed in CBI office in her presence that she was also known as Neetu. She claimed that the complainant had never claimed in her presence that the transcript Ex. PW-3/2 was incorrect or that name of Sukhdev came to be written in the transcript in place of Mahender and vice-a-versa. Witness denied the suggestion that the PTC was never recorded on any DVR or was only heard on the mobile phone of the complainant which was on loudspeaker mode. She admitted having stated in her statement U/s 161 Cr. P.C. that the conversation was heard and recorded through the in-built speaker of mobile phone of the complainant. After the complaint Ex. PW-5/1 was shown to the witness on her request, she admitted that the complaint was also against SHO Hoshiyar Singh. She further denied the suggestion that any person by the name of Atul Vashisth was present in CBI office with the complainant or that he had accompanied them in the same vehicle to the spot. Conversation between the complainant and the accused at PS Hari Nagar was also claimed to have been recorded. She claimed that the complainant had first called up Sukhdev and as he did not pick up the phone, she subsequently called CC No. 87/2008 Page39 of 66 Mahender. She admitted having stated in her statement U/s 161 Cr. P.C. that the complainant had firstly contacted Sukhdev who told her that they were coming and also asked for the location. Witness admitted that entry to Paradise Restaurant is after climbing 5 - 10 stairs. She denied the suggestion that a person standing at the ground level would not be able to see as to what was happening inside the restaurant. She claimed that there were two or three other persons sitting in the restaurant. She denied the suggestion that she had asked for the cold drink of her own or that accused Sukhdev had not asked for any cold drink. She claimed that they sat in the restaurant for about 15 - 20 minute before she got up from her chair. She claimed that although Amit Bhardwaj and Navneet were visible to her while she was sitting in the restaurant, she could not say if they were standing just outside the gate or on stairs or at the ground level. She claimed that her place of sitting in the restaurant was rightly marked at Point SKH in the site plan Ex. PW-9/2. She claimed that although one of the accused had sustained some injuries in the process of apprehension, she could not say which of the accused had received injury. She claimed that she could not say if he was medically examined on the same night or during course of next day morning. She claimed that pant of Mahender was returned back to him in the restaurant after the pant wash was taken and that subsequently it was seized after making arrangement of an alternate pant. She further claimed that she and Kusum were walking behind the accused persons when coming out of the restaurant. She further admitted that till they started to come CC No. 87/2008 Page40 of 66 out of the restaurant, there was no other CBI official in the restaurant. She further claimed that none of the employees of the restaurant had been called upon to join proceedings. She denied the suggestion that Kusum had tried to put money in pocket of Mahender while he was coming out or that when Mahender tried to avoid it, he fell down on the stairs. She claimed that she could not say whether or not she had mentioned in her statement to the IO about her accompanying Kusum or about her being introduced as Bhabhi of complainant. Her attention was drawn to her statement Mark P-12/A where it was not so recorded. She further claimed that written proceedings were conducted in the restaurant from 9.00 PM till 12.30 AM but statement of none of the witnesses had been recorded there. She denied the suggestion that Kusum Sehgal was never known as Neetu Sharma. She denied the suggestion that she was deposing falsely or had never joined investigation of this case. 16 PW-13 Inspector A.V. Bhardwaj was the trap laying officer of this case, who during course of his examination in chief deposed in consonance with allegations of prosecution. He however claimed that after the PTC, complainant informed that the caller was Sukhdev Singh. He claimed that the PTC was being simultaneously recorded on a DVR and after the conversation, the recording was transferred on a normal audio cassette which was marked as "PTC" and an investigation copy prepared. Witness identified his signatures on the documents and also identified the case property. He further stated that although Vijender Sharma was deputed to act as shadow witness, on mutual discussion CC No. 87/2008 Page41 of 66 it was felt that it would be more appropriate to depute Inspector Shehnaz Khan as shadow witness and accordingly she was asked to accompany the complainant as a shadow witness. He further claimed that about 10 to 15 minutes after having entered the Restaurant, the complainant and Inspector Shehnaz came out of the Restaurant followed by the two accused persons, and while coming out, both gave pre- appointed signal on receipt of which, they all rushed towards them. He claimed having apprehended the accused persons at Staircase adjoining the road. He further claimed that as crowd started to gather, in order to secure safety of accused persons and the tainted money, it was deemed proper to get accused Mahender searched by Tilak Raj there itself and after search and recovery of Rs.30,000/-, all went inside the Restaurant for further proceedings. He claimed that after getting inside the Restaurant, Mahender Singh claimed that the said amount had been put in his pocket by complainant of her own. He further claimed that thereafter hand-wash, handkerchief wash and pant pocket wash of accused Mahender were taken. He claimed that DVR was taken back from the complainant, was played and the conversation heard and then transferred to a normal audio cassette. Copy for investigation purposes was also claimed to have been prepared. He further claimed that on 16.08.2007 Transcript of Cassette Mark Q was prepared and he was called upon to sign the Memo in that regard. He also deposed about collecting subscriber and call details from various Authorities. He also identified the Case Property.
CC No. 87/2008 Page42 of 66 During course of cross-examination by ld. Counsel for accuseds, witness claimed that the complaint was handed over to him at about 2:50 P.M. and he had read it. Witness claimed having examined and having recorded statement of the person who had lodged complaint against Kusum Sehgal in the P.S. He claimed that all the statements recorded by him U/s. 161 Cr.P.C. were handed over to the subsequent I.O. He denied the suggestion that firstly a complaint consisting of 3 to 4 pages had been handed over by Kusum Sehgal in the present matter or that it was returned back to her. He denied the suggestion of having returned it back saying that it was too lengthy and that short complaint should be prepared. He further claimed that the complainant had claimed before him that Neetu was her pet name. He further stated that immediately after the conversation, complainant had informed him that person on the other side was Sukhdev Singh. He further claimed that after the complaint was handed over to him around 2.50 P.M., it took him about 20 to 30 minutes for conducting its verification. Although, he claimed that Car of the complainant was being driven by a Driver, he could not say if name of the Driver was Atul Vashisht. He claimed that although one of the independent witnesses was deputed to be a shadow witness, on way to the spot it was observed that the accused might get suspicious on seeing shadow witness with the complainant and hence it was decided that Inspector Shehnaz would accompany the complainant as a shadow witness. He denied the suggestion that the original recorded conversation was destroyed as it was tampered with after it CC No. 87/2008 Page43 of 66 was recorded. He claimed that the Transcript of PTC (Ex.PW-3/2) had not been got prepared before they left CBI Office. He claimed that the complainant had not discussed with him as to why name of Hoshiyar Singh was not mentioned in the FIR. Conversation was claimed to have been transferred from DVR to the cassette by S.I. Jagdev with the help of a Compact Cassette Recorder. He further claimed that there were about 8 - 10 stairs between the ground level and gate of the restaurant and that only some portion of inside of the restaurant was visible through the glass while standing on ground level. He claimed that the complainant, accused and the shadow witness sat in the restaurant at a distance of more than 5 ft. from gate of the restaurant but he could not say anything about the suggestion that they were sitting at a distance of atleast 20 ft. from the gate of the restaurant. He claimed that there were walls on both side of the restaurant and that inside of the restaurant was not visible from the point where he was standing at the spot. He claimed that the said point was "AVB" on the site plan Ex. PW-9/2. The point from where Inspector Shehnaz gave the "ishara" was marked as "S" on the site plan Ex. PW-9/2 on being pointed out by the witness. He further claimed that the accuseds were behind her at that point of time. Witness admitted that accused Mahender did fall at the spot. He claimed that he alongwith Inspector Sushil too had fallen from the stairs alongwith Mahender. He further stated that Mahender had not been mishandled by them. He denied the suggestion that Mahender was beaten by them or that his clothes got torn in the process. He could not say if pant of accused Mahender CC No. 87/2008 Page44 of 66 was seized at the spot or after return to CBI office. He further stated that there was no other customer in the restaurant at the relevant time and that although some people did collect at the spot, he did not ask them to join the proceedings. Written work was claimed to have been done while sitting inside the restaurant. He admitted that one of the bottles Ex. P-32 had a label of Liberty Diluxe Whisky. He further denied the suggestion that clothes of Mahender got torn while he was being manhandled at the spot and complainant was trying to put money in his pocket. He further denied the suggestion that it was within his knowledge that Kusum had earlier been a complainant in many other cases. He claimed that he was not aware if Kusum had been a complainant in five other matters of ACB Branch, but admitted knowledge of the fact that she was a complainant in a matter against Inspector D.K. Thakur. While admitting that he did record statement of some of the witnesses in his handwriting, witness claimed that he did not remember their names. He further admitted that he had not sent any handwriting or voice specimen of Sukhdev for comparison to CFSL. He denied the suggestion that Sukhdev had been falsely implicated after picking him up from PS Hari Nagar or that he had not joined investigation of this case or was deposing falsely.
17 PW-14 Shri Robin Hibbo proved his order Ex. PW-14/1 vide which the two accused persons were ordered to be dismissed.
During course of cross examination he denied the suggestion of having passed the order in a mechanical manner and without application of mind.
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18 PW-15 HC Raj Singh appeared on behalf of Duty
Officer and produced concerned DD register. 19 No other witness was examined on behalf of prosecution and hence prosecution evidence was closed and thereafter statements of accused persons were recorded U/s 313 Cr. P.C. 20 Accused Sukhdev denied the allegations against him and claimed that he was innocent and has been falsely implicated in this case. Accused Mahender too denied the allegations of prosecution against him and claimed that witnesses were false and interested and hence had deposed falsely. He chose to lead defence evidence and infact examined one witness in defence.
21 DW-1 Shankar Jha proved on record letter dated 26.2.2009 from office of SP, CBI, ACU-I, New Delhi as Ex. DW-1/A and letter dated 6.7.2009 from office of SP, CBI, ACU-I, New Delhi as Ex. DW-1/B. No other witness was examined in this case.
22 During course of arguments it was submitted by Ld. PP for CBI that during course of deposition in court, PW-3 Kusum Sehgal had not disputed the fact that she was also known as Neetu Sharma. It was further submitted that even during course of recording of her statement U/s. 161 Cr.P.C., she had mentioned herself as 'Kusum Sehgal @ Neetu Sharma'. Demand made by the accused persons was claimed to have been proved by the complainant, pre-trap conversation and also evidence adduced in Court. It was further pointed out that complaint made by Shri Sanjay Grover against Neetu Sharma was infact a complaint against the CC No. 87/2008 Page46 of 66 present complainant Kusum Sehgal and that although the complaint was pending since 07.05.2007, no effective action in that regard had been taken by the Police officials i.e. the accused persons till 23.05.2007. It was submitted that as per D-19, entry No. 551 the complaint had been marked to accused Sukhdev. This, it was submitted, was only with intention to coerce the present complainant and to extract illegal gratification from her. Ld. PP submitted that PW-3,5,9 & 12 had conclusively proved on record recovery of money from accused Mahender who infact had been caught red handed immediately after he came out from the restaurant with the bribe amount in his pocket. While referring to recovery of currency notes it was also submitted that accused Mahender had not denied factum of recovery of currency notes and rather had claimed that the same had been thrust in his pocket by the complainant. As defence of the complainant having thrusted the money in pocket of Mahender was neither proved nor even probablised by the accused, it was submitted that acceptance and recovery stood proved on record. It was further submitted that the verification, pre-trap, trap and the post trap proceedings stood corroborated and proved by the prosecution witnesses. As regards mentioning name of Sukhdev in the transcript in place of Mahender, it was submitted that it was apparently a mistake / oversight which could not throw out case of the prosecution. It was prayed that the accused persons be convicted accordingly. 23 During course of his submission, it was submitted by Ld. Counsel for A-1 that there was nothing on record against accused Sukhdev regarding having demanded or CC No. 87/2008 Page47 of 66 having received the bribe amount from the complainant. While referring to testimony of complainant in court, it was submitted that the complainant admittedly did not have any telephonic talk with Sukhdev on the day of incident i.e. 23.5.2007. It was further submitted that apparently Sukhdev was falsely implicated in the case merely because the complaint lodged by Grover against Kusum Sehgal @ Neetu Sharma had been marked to the accused and the complainant used the present case to pressurise Sukhdev. 24 Ld. Counsel for A-2 during course of his submission took this court through the complaint allegedly lodged by the complainant. While referring to her testimony in court, it was submitted that admittedly the complainant had approached CBI with some other complaint which was rejected being too lengthy and then she was made to write down a fresh complaint which was claimed to be the complaint in this case. In this regard it was submitted that the earlier complaint was claimed to be of 2 - 3 pages while the present complaint was of 2 pages. It was further pointed out that the complaint mentioned names of Inspector Hoshiyar Singh, Sukhdev and Mahender while the FIR was got registered by CBI officials only against the present accused persons i.e. Sukhdev and Mahender while name of Inspector Hoshiyar Singh was deleted due to unknown reason. It was submitted that during course of pre-trap proceedings, complainant had claimed that she had a talk with Sukhdev whose name also found mentioned on the transcript. As per Ld. Counsel, despite the transcript having been prepared on 23.5.2007, no objection had been raised by the complainant CC No. 87/2008 Page48 of 66 till 16.8.2007 when during course of her statement U/s 161 Cr. P.C. she reiterated about having had a talk with Sukhdev. Ld. Counsel submitted that a new story was put up in Court when the complainant claimed that she had a talk with Mahender. As per Ld. Counsel the said change of the story was brought about in view of CFSL report which opined the voice to be of Mahender and not Sukhdev. While on this, it was submitted that the original recording was allegedly made on a DVR where-after the conversation was transferred onto cassettes. The DVR, it was submitted was never shown in Court to any of the witnesses and that in absence of primary evidence i.e. conversation in DVR, prosecution tried to prove the conversation by way of secondary evidence i.e. copy of conversation in cassette without seeking permission from the Court in this regard. Non examination of material witnesses like Lalinder Khanna and Grover was also impressed upon by Ld. Counsel. It was submitted that both, even as per prosecution story, were very material witnesses and adverse inference ought to be drawn against prosecution on account of their non examination. Ld. Counsel further submitted that although Bijender Kumar Sharma was made a shadow witness, it was Inspector Shehnaz Khan who allegedly accompanied the complainant to the restaurant. As per Ld. Counsel there was no explanation on record as to why the independent witness Bijender Kumar was not permitted to accompany the complainant to the restaurant. While referring to the site plan, it was sought to be submitted by Ld. Counsel that the prosecution story stood falsified on bare perusal of the same, in as much as the trap party at the ground level CC No. 87/2008 Page49 of 66 could not have seen anything happening inside the restaurant which admittedly was at a height of more than 8 - 10 stairs from the ground level. While referring to the Handing Over Memo Ex. PW-5/3, it was submitted by Ld. Counsel that the complainant had been directed to give signal to the trap party by dialing mobile number of Inspector Navneet Kishan after the bribe transaction was over. This, it was submitted ought to have been given while sitting inside the restaurant itself. It was pointed out that admittedly no such call / missed call signal was given and rather the complainant and Inspector Shehnaz gave the hand signal after coming out of the restaurant. It was also submitted that as per case of Prosecution, Inspector Amit Bhardwaj had talked to accused persons during verification proceedings, but no recording of that conversation had admittedly been made. While refering to CFSL Report, it was pointed out that no query had been put to CFSL to ask as to whether or not the cassette had been tampered with. It was further submitted that the person who allegedly transferred conversation from DVR to the cassette too was not examined in Court. As per ld. Counsel, all the facts and circumstances of the case pointed out to only one conclusion i.e. false implication of the accused. While refering to the defence evidence, it was submitted that the complainant Kusum was a 'chronic complainant' who was in habit of lodging false complaints against CBI/ Police officials and her name had also been included in the list as a UCM and that as per report of S.P., CBI, ACU-I (Ex.DW-1/A), she had been found to have unscrupulous relation with various Govt. servants and was found to be engaged in ill-moral and CC No. 87/2008 Page50 of 66 corrupt practices. It was prayed that no reliance be placed on her complaint or subsequent proceedings.
25 During course of his reply arguments, it was submitted by ld. PP that non-production of DVR was immaterial as it was at best a corroborative piece of evidence while the substantive evidence qua demand, acceptance & recovery was the testimony in Court of the complainant, independent witnesses & members of the Trap Team. It was submitted that even if no conversation is recorded, it would not affect genuineness of the trap proceedings. As per ld. PP, minor discrepancies ought not to be given much importance as oral testimonies of different witnesses cannot verbatum be the same and there are bound to be some differences in their testimonies.
Ld. PP also placed reliance on Hazari Lal Vs. State [1980 Cri. L.J. 564(SC)], M. Narsinga Rao V.s State of Andhra Pradesh [2001 Cri.L.J. 515 (SC)], V. Thevar Vs. State of Madras [1957 Cri.L.J. 1000 (SC)], State of U.P. Vs. Zakaullah [ 1998 (SCC ) (Cri.)456], Bishnu Parsad Vs. State of Assam [2007 Cri.L.J. 1145 (SC)], Succha Singh Vs. State of Punjab [2003 Cri.L.J. 3876 (SC)], Pramod Kumar Vs. State (GNCT Delhi) [AIR 2013 SC 3344], Sunil Kumar Sambhudayal Vs. State of Maharashtra VIII (2010) SLT 185, Ritesh Sinha Vs. State of U.P. [2013 Cri.L.J. 1301 (SC)], Krishna Ram Vs. State of Rajasthan [2009 Cri.L.J. 2436 (SC)], Gian Chand Vs. State of Haryana [2013 (6) LRC 33 (SC)], Banti Vs. State of Madhya Pradesh [AIR 2004 SC 261].
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26 This Court has given thoughtful consideration to
arguments advanced on both sides and has also perused the records and the judgments cited at the Bar.
27 This court finds itself in agreement with submission made by Ld. PP for CBI to the effect that the recordings of conversations between the parties are only corroborative pieces of evidence and substantive evidence is the testimony of the complainant and other related witnesses. There also is substance in submission of Ld. PP that in absence of a recording of the trap conversation, there would be no adverse effect on the trap itself. However, things would change in case the recording goes against very basis of prosecution story or what is being deposed to by the prosecution witnesses. It should not be lost sight of that witnesses may lie but circumstances do not. Recordings which are prepared at the time of incident or the call detail records which come into existence at the time calls are made and record prepared, under normal circumstances, (or atleast) are not accepted to be tampered with. The record remains as it is while witnesses may change their testimonies in court over a period of time. That being the position, although non availability of recordings would not adversely affect value of deposition of witnesses in court, still in case the depositions in court run contrary to the records or the CDRs, matter requires a close scrutiny to fish out the truth. 28 In the present case, the very basis of prosecution story was the complaint lodged by complainant Kusum Sehgal. In her complaint Ex. PW-5/1 the complainant had CC No. 87/2008 Page52 of 66 claimed that around 8/9.5.2007 she had received a call from PS Hari Nagar on her mobile asking her to reach the police station. She claimed that she went to the police station on the next day. While deposing in court as PW-3, the complainant claimed that on 8.5.2007 Lalinder Khanna told her that she had been told to appear in PS Hari Nagar and that on 9.5.2007 she alongwith Lalinder Khanna went to PS Hari Nagar. This contradictory stand taken by the complainant has not been clarified during course of her testimony. It may be mentioned herein that the said Lalinder Khanna was neither cited nor examined as a witness in this case. Her deposition in court to the effect that she had told the SHO PS Hari Nagar that it was Lalinder Khanna who took her phone and talked to someone from her mobile phone also is not reflected in her complaint. Infact, factum of Lalinder Khanna having accompanied the complainant to Police Station or other proceedings having taken place in his presence were not even referred to in the complaint. This apparently makes the complaint and testimony of the complainant liable to be looked at for close scrutiny.
29 As per case of prosecution, and the Handing Over Memo Ex. PW-5/3 and deposition of witnesses, Vijender Kumar Khanna was directed to act as a shadow witness to remain close to the complainant and see the transaction and over-hear conversation. This fact was recorded in the Handing Over Memo. Surprisingly, after trap team had reached the spot, Inspector Shehnaz Khan stepped into shoes of shadow witness and infact became one while posing as a Bhabhi of the complainant. There is nothing on record CC No. 87/2008 Page53 of 66 whatsoever as to under what circumstances the original shadow witness V.K. Khanna was given a go by and under what circumstances a CBI Inspector i.e. Shehnaz Khan was made a shadow witness. The complainant during course of her deposition had claimed that prior to pre-trap demonstration, she had a telephonic talk with the accused wherein she stated that she would be coming with her sister- in-law. It was further claimed that this conversation was not recorded. Admittedly the Handing Over Memo was prepared after the pre-trap demonstration but still it mentions Virender Kumar Sharma as being the shadow witness and does not mention the name of Inspector Shehnaz Khan as being the person who would be accompanying the complainant as a shadow witness at the time of transaction. In absence of any explanation in this regard, the very basis of allegations of the investigating agency qua the trap becomes suspicious. All this becomes more suspicious in light of deposition of complainant (PW-3) where she claims that prior to pre-trap demonstration, she had told accused that she would be coming with his sister-in-law. Admittedly, Handing Over Memo was prepared after pre-trap demonstration, but still mentions fact of V.K. Sharma being shadow witness and not Inspector Shehnaz Khan.
30 As per pre-trap conversation Ex. PW-5/2 and the corresponding transcript Ex. PW-3/2, the complainant had a talk with Sukhdev who called her up from the police station at about 4.25 PM on 23.5.2007. The name Sukhdev is specifically mentioned in the Conversation Recording Memo and is also mentioned in the transcript. When the said CC No. 87/2008 Page54 of 66 conversation was sent for voice examination to CFSL, it had been opined that the voice was of accused Mahender and not Sukhdev. Consequently, while deposing in court as PW-3, the complainant claimed that she had talked with Mahender and not Sukhdev. Prosecution has sought to put up a case that the name of Sukhdev was inadvertently mentioned in the documents and the conversation and that infact complainant had a talk with Mahender at that stage. In this regard complainant claimed that the conversation was between her and accused Mahender and that she had never stated it was with ASI Sukhdev. She claimed that she did not know as to how by mistake name of ASI Sukhdev came to be mentioned in memo. During course of her cross examination she claimed that when she went to CBI office after 23.5.2007 on which date the cassette was played, she had stated that the telephonic conversation recorded on 23.5.2007 from CBI office was between her and Mahender and that name of Mahender had to be mentioned as it was his voice and not of ASI Sukhdev. She claimed that infact she had pointed out the said defect on 23.5.2007 itself. She further claimed having pointed it out at the time of preparation of transcript itself. She claimed that after the talks were over, she told the CBI officer about her having talked to HC Mahender. She claimed that transcript had been prepared immediately after conclusion of the pre-trap conversation i.e. on 23.5.2007. In this regard it would be pertinent to point out that as per case of the prosecution, the transcript of pre-trap conversation recorded on 23.5.2007 was prepared on 16.8.2007. The same is also evident from the transcript Ex. PW-3/2. In that CC No. 87/2008 Page55 of 66 view of matter, claim of complainant regarding the transcript having been prepared on 23.5.2007 itself and regarding her having pointed out the defect of wrong mentioning of name of Sukhdev thereupon puts the prosecution story in doubt. Also pertinent in this regard is testimony of PW-9 Tilak Ram who during course of his cross examination specifically claimed that the complainant had stated that the voice coming from other side was that of accused Sukhdev. IO PW-11 Inspector Rajiv Mathur during course of cross examination claimed that the complainant had never complained to him that names of accused persons have been wrongly mentioned anywhere in the transcript.
31 The DVR allegedly used to record pre-trap conversation as well as the trap conversation has not been produced in court. The conversation recorded in the DVR, as per case of prosecution was transferred on to two cassettes one of which was sealed while other was retained for investigation purposes. The seal used had a seal impression of CBI ACB ND 88/2005. Now, firstly it was the conversation recorded in the DVR which was the primary piece of evidence and which ought to have been put up before the Court. An attempt has been made by prosecution to prove the conversation recorded by way of a transferred conversation in the cassettes without the original having been produced. The transferred conversation in the cassette can at best be said to be secondary piece of evidence. Prosecution has failed to prove on record that the original was lost or not traceable or could not be produced for reasons beyond control of the prosecution or for reasons in respect of which prosecution CC No. 87/2008 Page56 of 66 cannot be faulted with. Investigating agency of its own chose to destroy the original recording and wants this court to believe the secondary i.e. transferred recording. The investigating agency could very well have retained the original DVR or atleast its Microchip / memory card so that the same be produced in court during course of trial. Rather, for reasons best known to the investigating agency, the original recording was destroyed.
Interestingly, when the recording of trap proceedings had been played in Court, it only consisted of noises i.e. blowing of horns and sound of passing by vehicles. The alleged conversation could hardly be heard. Still, it was consistent stand of PW-3,12 & 13 that after the trap proceedings were over, the DVR was played, heard and its copy prepared. None had claimed that the conversation was inaudible in the said recording.
32 Yet another aspect requiring serious concern in this case is the description of seal used on the cassettes. As per CFSL report, the seal was of CBI ACB ND 88/2005. The incident in this case is of the year 2007. No explanation whatsoever has come on record as to how, why and under what circumstances seal of the year 2005 came to be used in the year 2007. Sanctity of seal is apparently lost in this case. 33 As per Recovery Memo, recording in the DVR was transferred to normal cassette with the help of a cassette recorder with the CBI. Surprisingly, Handing Over Memo does not mention CBI team having taken along with it the cassette recorder.
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34 There are plethora of contradictions in testimonies
of the prosecution witnesses as regards the alleged incident and also numerous infirmities as regards the spot where the incident allegedly took place.
35 It was sought to be made out by some of the witnesses that the point where complainant, Inspector Shehhaz and the two accused persons were present inside the restaurant were visible to the trap team and vice-versa, while some had claimed that the same were not visible from either side. As per topography of the restaurant, it was at a height of 8 - 10 stairs from the ground level. Apparently, a person sitting about 20 ft. inside the restaurant after climbing 8 - 10 stairs can neither see nor can be seen by the person standing on the floor level. As per Handing Over Memo, the complainant had been directed to give signal to the trap party while dialing number of Inspector Navneet after the completion of transaction. Admittedly, no such call was made but rather the complainant and Inspector Shehnaz gave the signal after coming out of the restaurant and that too by moving hand over head. There are contradictions in testimonies of witnesses as to whether the accused persons came out first or if the complainant and the shadow witness came out prior to the accused persons coming out. No explanation in this regard has been brought on record. While at the spot, testimony of PW-6 & 7makes an interesting reading. It was claim of PW-6, who worked as a cashier in the restaurant where the transaction allegedly took place at about 7.45 - 8.00 PM, four persons came in the restaurant, sat on chair and when they demanded cold drink, waiter replied that CC No. 87/2008 Page58 of 66 the same was not available. He further claimed that thereafter all four went out. He further claimed that outside the restaurant on the other side of the road, there was a juice rehari and some commotion / noise took place there. He further claimed that 4 - 5 persons were bringing one person inside the restaurant and when he objected, the said persons disclosed that they were from CBI and had to do some writing work. He claimed that they did their work and his signature was obtained by them. Surprisingly, the witness was not cross examined on behalf of Prosecution. PW-9 K.K. Sarkar was owner of the restaurant who claimed that on 8.30 PM his employee Ravi Kumar (PW-6) contacted him on mobile to say that some persons who claimed to be from CBI had come in the restaurant and wanted to come inside for conducting proceedings. Witness claimed that when he himself reached the restaurant, CBI officials requested that they wanted to conduct some proceedings. He claimed having permitted them to do so. Factum of Ravi having called K.K. Sarkar was not deposed to by Ravi. Moreover, the story put up by K.K. Sarkar to the effect that CBI officials kept waiting for him to reach the restaurant before they started the proceedings appears to be a figment of his imagination only. None of the CBI officials or any other witness had deposed to that effect. Be that as it may, the fact remains that PW-6 Ravi Kumar whose presence at the spot is not disputed by the prosecution and who is one of the signatories to the Recovery Memo has disowned the very basis of prosecution story as regards the incident which took place in the restaurant. He apparently was the only independent witness present in the restaurant at CC No. 87/2008 Page59 of 66 the alleged time of incident. As already mentioned herein, he was not cross examined by the prosecution. This is a very material fact which shakes prosecution story from its very foundations. This court is also surprised at what is stated by Inspector Shehnaz and other witnesses and also reflected to some extent in the conversation Ex. PW-3/3. It is sought to be made out by the investigating agency that some one from the trap team party i.e. the complainant, Shehnaz or the two accuseds asked for some cold drink and had been informed by the waiter that it was not available. It was 23.5.2007. The time was not odd but still no cold drink was available in the restaurant. Although not impossible, the said fact appears to be improbable.
36 As per case of prosecution, after trap team had reached the spot Inspector Shehnaz (as shadow witness) and the complainant walked forward and during that course of time complainant had telephonic conversation with accused persons for fixing the location. The DVR, as per prosecution case was with the complainant and she had been instructed to switch it "on" before approaching the accused. For some undisclosed reasons the conversation between complainant and the accused persons which reportedly took place outside the restaurant were never got recorded. The conversation recorded in respect of the spot conversation, as per CFSL report Ex. PW-1/2 was of total duration of 6 minutes 33 seconds. When the recording was heard in Court, it was observed that much of the recording was of vehicular noise and horns and only a miniscule amount of conversation could be heard.
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37 As per prosecution story, complainant and the
accused had remained in the restaurant for about 10 - 15 minutes. It belies imagination as to how the recorded conversation was of 6 minutes 23 seconds when it ought to have been more than 15 - 20 minutes. It appears that there is substance in submission of the defence that the conversation was tampered with. It would have been a different story if there had been no recorded conversation at all. However, likelihood of the recording being tampered with leads this court to draw an inference adverse to genuineness of case of prosecution.
38 As per case of Prosecution, it was Lalinder Khanna who gave a telephone call to Grover from mobile phone of complainant Kusum Sehgal. Thereafter, Grover reportedly lodged a complaint with the police and it was for settlement of this complaint that the accuseds allegedly were demanding money from the complainant. For some unexplained reason, neither Grover nor Lalinder Khanna were cited or examined as witnesses in this case. It has also appeared from testimony of witnesses that the complainant had gone to the spot in her own car being driven by a driver. The said person too was neither cited nor examined in this case. It also transpired during course of testimony of PW-5 that there were some customers sitting in the restaurant who had been asked to go out by CBI officials from the restaurant. No plausible reason for this has been given. There are also contradictions qua presence of the erstwhile shadow witness Vijender Kumar Sharma. While PW-5 (V. Sharma) and PW-9 claimed his presence outside the restaurant alongwith CC No. 87/2008 Page61 of 66 members of trap team, complainant claimed that he was sitting inside the restaurant on a different table. This court is at a loss as to what is to be believed and what to discard. 39 Let us now have a look at the case from the angle of complaint of Sanjay Grover. The said complaint was proved as Ex. PW-8/3. It had been claimed by Sanjay Grover in his complaint dated 7.5.2007 that he had some dispute with Lalinder Khanna and Anil Khanna and that since 15 days he was receiving threatening calls from mobile No. 9911971000 from one Neetu Sharma. Now, while the complainant has acknowledged the said mobile number as belonging to her, she has disputed her identity as being Neetu Sharma. In this regard, it would not be out of place to mention that in her statement U/s 161 Cr. P.C., her name has beenmentioned as Kusum Sehgal @ Neetu Sharma. Moreover, IO during cross examination claimed that alias of Kusum Sharma as Neetu Sharma had been so recorded only on her telling and he had not written it of his own. PW-13 Inspector A.V. Bhardwaj claimed in this regard that the complainant had claimed before him that Neetu was her pet name. In view of the aforesaid, it appears that the calls to Sanjay Grover were being made by complainant Kusum Sehgal @ Neetu Sharma and the complaint lodged by him was against her. She apparently has tried to side track this issue. 40 While discussing this fact, it appears strange that while the alleged demand of bribe was made on 8/9.5.2007, as was being claimed by complainant, and although she was allegedly persistently receiving telephone calls on her mobile in this regard, she chose to remain silent and did not report to CC No. 87/2008 Page62 of 66 CBI or police uptil 23.5.2007. Her silence for such a long time speaks volumes for itself. As per admitted facts, the complainant was not unknown to CBI or to its procedures, having been a complainant and witness in a number of cases. Her remaining silent for a long period of time between the alleged demand and her complaint to police makes the court think about genuineness of her grievances. 41 It was admitted by the complainant during course of her testimony that complaint Ex. PW-5/1 was not the original complaint brought by her to be registered with CBI. She claimed that her original complaint was of 2 - 3 pages and was rejected by CBI officials claiming that it was lengthy and not to the point. She further claimed having written the present complaint in CBI office itself thereafter. Now, the complaint on record is also of two pages.
42 The complainant during course of her testimony recorded on 8.12.2011 had specifically claimed that the bottles in the trap kit were neat and clean and there was no label found pasted on them at that time. It had also been so claimed by PW-5 as well as PW-13. However, one of the wash bottles (P-32) contained label of whisky when it was produced in court.
43 Falsity of claims of the complainant also come out clear on perusal of the call detail records specially Ex. PW-4/8. Although in the original complaint lodged, complainant had nowhere claimed that Lalinder Khanna had ever taken her mobile phone (9911971000) to make a call to anyone, while deposing in court, she claimed that on 4/5.5.2007 Lalinder Khanna took her mobile phone and spoke CC No. 87/2008 Page63 of 66 to someone. She claimed the said talk to have taken place after dinner time. Now, it has come on record through Ex. PW-8/3 (complaint lodged by Sanjay Grover) that telephone number of Sanjay Grover was 931225981. Perusal of call details of the complainant Kusum Sehgal (Mobile No. 9911921000) revealed that there had been no telephone call made from her mobile to that of Sanjay Grover during after dinner session. During course of her testimony recorded in court on 24.1.2011, PW-3 (Kusum Sehgal) had claimed that she did not know Sanjay Grover. Surprisingly, as per call details there have been four telephone communications between the two numbers (9911971000 & 9312259891) between 28.4.2007 and 6.5.2007. The first such communication on 28.4.2007 lasted about 383 seconds. There are two communications on 4.5.2007 i.e. at around 1.54 PM and 2.03 PM. The next conversation was on 6.5.2007 at about 9.30 PM. Now the call details belie claim of the complainant to the effect that she did not know Sanjay Grover. It also belies her claim in court that Lalinder Khanna had taken her mobile and had given a call to someone after dinner time. Rather, the all details support claim of Sanjay Grover as made in his complaint Ex. PW-8/3 about his having received a threatening call from No. 9911971000 at about 9.30 PM on 6.5.2007. Call details further fortify his claim that he had been receiving threatening calls even earlier. All this not only supports claim of Sanjay Grover but also falsifies the claims being put forward by complainant Kusum Sehgal. 44 Moreover, scrutiny of the call details of complainant also belie her claim and that of the investigating CC No. 87/2008 Page64 of 66 agency in respect of recording of the pre-trap conversation. As per call details, the conversation from land line number of PS Hari Nagar to mobile phone of the complainant was at 4.24 PM and lasted 190 seconds. Now as per CFSL report Ex. PW-1/2, the pre-trap conversation recorded was of 4 minutes 2 seconds i.e. 242 seconds. It remains a mystery as to how conversation of 190 seconds got converted to recorded conversation of 242 seconds. No explanation in this regard has come forward.
45 As per the Memo Ex. PW-3/1, transcription of the pre-trap conversation (Ex. PW-3/2) and the spot conversation (Ex. PW-3/3) had been prepared on 16.8.2007 and were so signed by the attesting witnesses. As per CFSL report (Ex. PW-1/2) the sealed parcels containing the cassettes were received in CFSL office on 9.8.2007 and xerox copies of rough transcription of pre-trap conversation and the spot conversation had also been received alongwith the cassettes. It surprises this Court as to how xerox copies of transcripts prepared on 16.8.2007 were sent to CFSL, CBI alongwith the cassettes on 9.8.2007.
46 All the aforesaid infirmities in the prosecution story rends its case from foundation to cornice.
47 The judicial pronouncements relied upon by Ld. PP have also been perused by the Court. In considered opinion of this Court and keeping in view infirmities in the prosecution case as have been enumerated herein-above, this Court is of considered opinion that the pronouncements do not help case of the prosecution.
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48 Keeping in view the aforesaid, this court is of
considered opinion that prosecution has failed to prove its case to the hilt in order to prove culpability of accused persons in this case. Consequently, while granting benefit of doubt to the accused persons, they are hereby ordered to be acquitted in this case.
Announced in the open court (M.R. SETHI)
on 15.4.2014 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
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