Delhi District Court
Cbi vs Surender Singh Chahal on 13 March, 2024
IN THE COURT OF SH. GAURAV RAO, SPECIAL JUDGE
(CBI) (PC ACT)-01, ROUSE AVENUE DISTRICT COURTS,
NEW DELHI.
CNR No. DLCT11-000308-2020
CC No. 68/2020
RC-DAI-2020-A-0018
Under Section 120B and Section 7
read with Section 120B of PC Act, 1988
Central Bureau of Investigation
.........Prosecution
Versus
Surender Singh Chahal,
S/o Late Sh. Ram Chander,
R/o 12-B, Shiv Shakti CGHS,
Plot No. 10, Sector-10,
Dwarka, New Delhi-110095.
.........Accused No. 1
Badri Prasad Yadav,
S/o Sh. Balbir Singh Yadav,
R/o VPO Dhani Chetawali, Sefraguwar,
Tehsil-Khetri, District- Jhunjhunu,
Rajasthan (332716)
.......Accused No. 2
Date of institution : 02.11.2020
Date of arguments : 01.03.2024
Date of judgment : 13.03.2024
Decision : Both accused persons
convicted
JUDGMENT
BRIEF FACTS AS PER THE CHARGE SHEET CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 1/176
1. It is the prosecution case that a written complaint dated 16.06.2020 was received from complainant Sunil Kumar Vats s/o Sh. Suresh Chand R/o Khasra no. 932 VPO Rithala, Delhi-110085 wherein it was alleged that he is in the business of plastic granules and around 6/7 months back he had purchased a plot ad-measuring around 100 sq. yards situated at Khasra No. 78/12, House No. 131, Vijay Vihar, Delhi. It was further averred that while he was constructing boundary wall on the aforementioned plot, some persons came to the plot and asked him to stop constructing the boundary wall claiming that the plot belongs to them. It was further averred that he called the PCR by dialing 100 number upon which the said persons left and later on, he filed a written complaint in this respect with PS Vijay Vihar on which accused no. 1 S.S. Chahal SHO PS Vijay Vihar asked him to construct the boundary wall and also told him that he will look into the matter. It was averred that thereafter accused no. 1 started continuously harassing him and on 10.06.2020 called him through Constable Samay Singh at PS Vijay Vihar and demanded Rs. 5 lakhs for allowing construction of the boundary wall and further threatened him that if the demanded bribe amount was not paid, then he would be implicated in a false case and put behind the bars. It was averred that since he did not want to pay bribe to accused no. 1, request was made to initiate legal action against him.
1.1 It is the prosecution case that verification of the complaint was conducted on 16.06.2020, by Verifying Officer SI Pradeep, with the help of technical devices i.e. DVR, memory card and mobile calls, in the presence of the complainant, CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 2/176 independent witness Sh. Jaideep Mathur as well as Inspector N.C. Nawal. It is its case that the verification, the recorded conversation between the complainant and accused no. 1 confirmed the demand of undue advantage to the tune of Rs. 6 lacs by accused no. 1 out of which an amount of Rs. 2 lacs was to be paid on the next day to accused no. 2 Constable Badri Prasad Yadav.
1.2 It is further its case that on the basis of said verification, the present FIR/RC was registered on 17.06.2020 under Section 7 of the Prevention of Corruption Act 1988 (hereinafter referred to as the PC Act) against accused no. 1 and the investigation of the same was entrusted to Inspector Shyam Rai, who conducted the trap proceedings. It is further its case that a sum of Rs. 2 lacs/bribe amount was produced by the complainant for use in trap proceedings, which amount after treatment with phenolphthalein powder was kept in a yellow envelope, which envelope was also treated with the said powder and that for laying the trap technical devices such as DVR, memory card, mobile phones etc. were used.
1.3 It is its case that the trap team included the complainant, two independent witnesses namely Sh. Jaideep Mathur & Sh. Arvind, Insp. Shyam Rai, Insp. Vikrant Tomar as well as other CBI officials and during the trap proceedings, accused no. 2 Constable Badri Prasad Yadav was caught red handed after having accepted the bribe amount of Rs. 2 lacs, which amount he had accepted in conspiracy with and as directed by accused no. 1. It is its case that the hand wash of accused no.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 3/176 2 was taken which turned pink in a solution of sodium carbonate and water. It is its case that the said solution was sent to CFSL for chemical examination and vide report no. CFSL-2020/C-353 dated 21.08.2020, a positive opinion was given on the right hand wash of accused no. 2.
1.4 It is its case that during the investigation, the questioned conversation recorded during the verification and trap proceedings with the help of DVR, memory card, mobile phone alongwith specimen voices of both the accused and the transcripts of the recorded conversation were also sent to CFSL for examination & expert opinion on which positive opinion was received.
1.5 It is its case that role of one more person namely Constable Jitender also emerged during investigation but, the evidence against him was insufficient to lodge prosecution against him though a report regarding his role was sent to his department for taking suitable action.
1.6 It is its case that the mobile phones of accused no. 1 & 2 and Constable Jitender were also seized and sent to CFSL for expert examination.
1.7 It is its case that the aforementioned fact and circumstances which came to the light during investigation revealed the criminal conspiracy and demand for illegal gratification/undue advantage on the part of both the accused and demand & acceptance of illegal gratification on the part of CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 4/176 accused no. 2 on behalf of accused no. 1 which constitutes an offence punishable under Section 120B read with Section 7 of PC Act, 1988 (as amended in 2018) on the part of both the said accused.
1.8 It is its case that the sanction for prosecution against the accused no.1 & 2 was obtained from the competent authority and same was filed alongwith the chargesheet.
Cognizance & Charge
2. Vide order dated 08.12.2020, the cognizance of the offence was taken and both the accused were summoned by the Ld. Predecessor of this court. After compliance of Section 207 Cr.P.C, the arguments on charge were heard and vide order dated 27.03.2021, charge for the offence punishable under Section 120B IPC and Section 7 of the PC Act read with Section 120B of Indian Penal Code 1860 was framed against both the accused persons to which they pleaded not guilty and claimed trial.
Prosecution Evidence
3. In order to prove its case, prosecution examined 15 witnesses in all. The deposition of these witnesses has been dealt with in detail at the time of appreciating the factual as well as the legal aspects of the case and while considering the rival contentions raised at bar viz-a-viz their deposition. Nonetheless their role, sum and substance of their deposition has been discussed herein below.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 5/176 3.1 PW1 ACP Ramesh Chandra - He has deposed that he had provided service particulars & personal details of accused no. 1, accused no. 2 and Constable Jitender to IO Insp. Ravinder Bharti vide letter dated 30.09.2020 i.e. Ex. PW1/A (colly).
3.2 PW2 ACP Parvati Devi - She has deposed on the same lines as deposed by PW1. She additionally deposed that letter dated 24.07.2020 i.e. Ex. PW2/A (colly) alongwith the documents annexed therewith were duly sent to the CBI through the office.
3.3 PW3 Sh. Rajiv Vashisht, Nodal Officer, Airtel Ltd. - He has deposed that he had provided the certified copy of CDR of mobile no. 9871431306 from 10.06.2020 to 17.06.2020 along with certificate u/s 65B of the Indian Evidence Act, Customer Application Form (CAF) in the name of accused no. 2 along with copy of his ID/driving license and the location chart to Insp. Shyam Rai vide Ex. PW3/A (colly) dated 04.07.2019.
3.4 PW4 Sh. Pawan Singh, Alternate Nodal Office, Vodafone Idea Ltd. - He has deposed that subscriber details/record/ CDR/Delhi Cell ID Chart of mobile number 8750870329 issued in the name of Assistant Commissioner of Police, SHO Aman Vihar and original CAF, call details, CDR, Delhi Cell ID Chart, original number migration form from postpaid to prepaid of mobile number 9266412652 issued in the name of Jitender for the period 10.06.2020 to 17.06.2020 along with certificate U/s 65B of Evidence Act were provided to the IO CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 6/176 vide Ex. PW4/B in reply to his production cum seizure memo dated 06.08.2020 i.e. Ex. PW4/A (colly). He deposed that as per record, original CAF of mobile number 8750870329 was destroyed in fire outbreak in building used by Idea Cellular Ltd as warehouse and information in this regard was given to SHO PS Phase-III, Noida vide copy of letter dated 22.09.2017. He identified his signature and stamp on the copy of Special Fire Analysis Form dated 22.09.2017 issued by Fire Department as well as on the forwarding letter dated 24.07.2020.
3.5 PW5 Sh. Kamal Kumar, Nodal Officer, Reliance Jio Infocom - He has deposed that he had provided CDR, CAF, Cell ID Chart of mobile number 8076551887 issued in the name of Samay Singh Meena for the period 10.06.2020 to 17.06.2020 alongwith certificate U/s 65B of Indian Evidence Act to the IO in response to the notice U/s 91 Cr.P.C. through forwarding letter dated 31.07.2020 i.e. Ex. PW5/A (colly).
3.6 PW6 Dr. Subrat Kumar Choudhury, Senior Scientific Officer, CFSL, New Delhi - He deposed that he had examined the exhibits in the present matter i.e. memory card exhibits Q-1, Q-2, containing questioned audio recordings and also memory cards exhibits S-1, S-2 & S-3 which contained voice recordings of accused no. 1/SS Chahal, accused no. 2 Badri Prasad and Jitender. He further deposed that he had also examined the DVR and mobile phones i.e. M-1 & M-2 in the laboratory which were received vide acknowledgment Ex. PW6/A. He deposed that auditory, spectrographic and waveform analysis of the questioned and specimen voice recordings were CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 7/176 carried out by him and that the details of the examination procedure, reasoning and results are mentioned in his report bearing number CFSL-2020/P-363 dated 01.12.2020 i.e. Ex.PW6/B (running into 16 pages). He deposed that on examination specimen voices marked exhibit S1, S2 and S3 tallied with voices contained in exhibits Q1, Q2, M1 and M2. He identified the 8 sealed parcels produced by the MHCM containing Exhibits Q-1, Q-2, S-1, S-2, S-3, DVR, M-1 and M-2 and also identified his initials and handwriting on all the 8 envelopes and deposed that seal of all the parcels bearing seal of SKC SSO-II (PHY) CFSL/CBI New Delhi, details of the case mentioned on it were found intact. He further deposed that he had sent his report Ex.PW6/B to the Director, CFSL Sh. N.B. Bardhan who intimated CBI to collect the report alongwith exhibits in this case vide letters Ex. PW6/C & Ex. PW6/D and the same was collected by the concerned official of CBI.
3.7 PW7 Sh. Manish Kumar Aggarwal, Joint CP (Sanctioning Authority) - He has deposed that he accorded sanctions U/s 19 of the PC Act for the prosecution against Insp. S. S. Chahal and Ct. Badri Prasad i.e. Ex. PW7/A2 and Ex. PW7/A3 respectively vide his forwarding letter dated 30.09.2020 i.e. Ex. PW7/A1. He also proved the copy of his transfer & posting order and certified copy of Delhi Police (Appointment and Recruitment) Rules 1980 as Ex. PW7/A4 and Ex. PW7/A5.
3.8 PW8 Sub-Inspector Pardeep (Verification Officer) - He deposed that on 16.06.2020 he had conducted verification of complaint dated 16.06.2020 i.e. Ex. PW8/A1. He CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 8/176 deposed that said verification was conducted in the presence of the complainant, Insp. N.C. Nawal and independent witness Sh. Jaideep Mathur. He further deposed that he had used a DVR of the make Sony and a fresh SD card of 8 GB of make Sandisk for verification proceedings and has explained in detail as to how the verification proceedings were conducted and the conversation between the complainant and accused no. 1 were recorded in the said memory card using the DVR. He has deposed about seizure of the memory card Q-1 in CO-25/2020 and identified the same during the trial as Ex. P1 (colly). When the memory card was played during the trial he identified the five files in the same i.e. file no. 200616_1655, File no. 200616_1824, file no. 200616_1825, file no. 200616_1827, file no. 200616_1835 and the voice/recorded conversations in those files as that of independent witness Jaideep Mathur, complainant Sunil Kumar Vats, Ct. Badri Prasad Yadav and SHO S.S. Chahal. He identified the verification memo dated 16.06.2020 as Ex. PW8/A2 and deposed that he had recommended for registration of a regular case against accused no. 1 under section 7 of the PC Act. He identified the FIR alongwith copy of complaint and verification memo as Ex.PW6/A3 colly. He deposed that on 17.06.2020 he was part of the trap team which consisted of TLO Inspector Shyam Rai, Inspector N.C. Nawal, Inspector A.K. Singh, Inspector Pramod Kumar Tanwar, Inspector S.P. Singh, Sub- Inspector Vikrant Tomar, Sub-Inspector Nitin Chaudhary, Sub- Inspector Pawan Kumar, complainant Sunil Kumar Vats and two independent witnesses namely Jaideep Mathur & Sh. Arvind. He has further deposed in detail as to how the trap was laid and also about the preparation of the handing over memo i.e. Ex.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 9/176 PW/8/A3, recovery recovery memorandum dated 18.06.2020 (Running into 7 pages) i.e. Ex. PW8/A-4 and the rough site plan i.e. Ex. PW8/A-5.
3.9 PW9 Ms. Deepti Bhargava, Senior Scientific Officer Grade II (Chemistry), CFSL New Delhi - She deposed that in this case vide letter no. RC-DAI-2020-A- 0018/DLI 5577 dated 22.07.2020, she had examined one sealed glass bottle which gave positive tests for the presence of phenolphthalein and she identified her signatures on the chemical examination report dated 21.08.2020 i.e. Ex. PW9/A as well as the glass bottle having seal of CFSL, ND i.e. Ex. P-9.
3.10 PW10 Sh. Sunil Kumar Vats (Complainant) - He has deposed that he is doing the business of plastic dana and in the year 2020, he had given a handwritten complaint dated 16.06.2020 to the CBI i.e. Ex. PW8/A1. He deposed that when he was constructing boundary wall on his plot no. 78/12, H-131, Vijay Vihar, Delhi, 4-5 people came and told him to stop the construction of the boundary wall while stating that plot belongs to them. He deposed that one of those persons name was some Nafi and when they stopped him from constructing the boundary wall, he dialed 100 number for PCR. He deposed that pursuant to his call one SI visited the site but by that time they reached there, said persons had already left from there. He deposed that thereafter, he was taken to Police Station by the police officials and after reaching the police station, he submitted his documents. He deposed that he was made to sit in those police personnel room and they told him that they were going to meet SHO and CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 10/176 thereafter, the SI came back and said that police will conduct inquiry in respect of said plot and whosoever's papers are found to be genuine, he will be allowed to have possession of the plot. He deposed that on the next day, some police personnel including the same SI, as mentioned above came to the spot. He deposed that some were in uniform and some were in plain clothes and they were accompanied with some civil persons. He deposed that the police personnels left the spot after making inquires from him and the neighbourers. He deposed that the civilian who had come with the police remained at the plot only and out of those civilians, one person whose name he does not remember, said that he had setting with one police official Samay who is very close to SHO and he will get his work done. He deposed that when he said that the plot belonged to him and he does not need any help, said person told him that a false case of cheating will be lodged against him and he would be sent to jail. He deposed that thereafter, he went to CBI office to lodge a complaint. He deposed that he had gone to CBI office with a hand written complaint of 3-4 pages, in which he had written about the above incident. He deposed that when he went to CBI office, he met one SI, whose name he does not remember today and he told the SI, CBI about the money being asked from him in the name of SHO. He deposed that SI of CBI told him that he has to name the SHO and make specific allegation against the SHO and then only they will register the complaint against SHO and would arrest him. He deposed that CBI had never recorded his statement. He deposed that under the pressure of SI of CBI, he lodged complaint against SHO. He deposed that he does not remember the name of said SI who asked him to specifically name SHO in CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 11/176 his complaint.
Thereafter Ld. SPP for the CBI had cross examined him as he was resiling from his earlier statement and during his cross-examination he denied most of the suggestions, given by Ld. SPP for the CBI, in terms of the prosecution case. He identified his signatures on Ex. P-1 (colly) as well as on the verification report dated 16.06.2020 i.e. Ex. PW8/A2, handing over memo Ex. PW8/A-3 (colly), recovery memo Ex. PW8/A-4, voice identification-cum-transcription memo Ex. PW10/A and Transcriptions Ex. PW10/B (colly) and Ex. PW10/C (colly). He failed to identify the voices in Q1 and Q2 i.e. Ex. P1 and Ex. P2. He denied having made statements Ex. PW10/D and Ex. PW10-/E to the IO.
3.11 PW11 Sh. Arvind, Assistant Section Officer, DDA (Independent Witness) - He deposed about joining of investigation in the present matter at the time of trap proceedings. He deposed in detail about how the preparation for the trap was done and how the trap was laid on accused no. 2 i.e. treatment of bribe amount of Rs. 2 lakh and the envelope in which it was kept with phenolphthalein power, reaching of the trap team members at the spot, how the complainant was also directed to give signal about the transaction, if it happens, making of the calls to accused no. 2 by the complainant & recording of the said calls by keeping the mobile on speaker mode, presence of Constable Jitender at the spot on a bike and apprehension of accused no. 2 who was sitting on the rear seat of the yellow colour police beat motorcycle. He has deposed about seeing the yellow colour envelop in the hands of another independent witness and about CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 12/176 the hand wash proceedings of accused no. 2, the turning of the solution into pink as well as about the seizure of the hand wash solution in bottle Ex. P9. He deposed about the tallying of the currency notes/bribe amount and their seizure. He identified his signatures on Annexure A (running into 03 pages) part of Ex. PW8/A-3 (Colly) i.e. handing over memo. He identified his signatures on Ex. PW8/A4 i.e. recovery memo of trap proceedings and that of independent witness Jaideep Mathur as well as on Ex. PW8/A5 i.e. rough site plan. He deposed about taking of his voice samples as well as the other independent witness, accused persons and Constable Jitender. He identified his signatures on the personal search memos of accused Surender Singh Chahal and accused Badri Prasad Yadav i.e. Ex. PW-11/A1 and Ex. PW11/A2 respectively and deposed about the handing over the seal used for trap proceedings to him for safe custody as well as seizure of the DVR and the memory card containing the voice recordings of the trap proceedings. He also deposed about the seizure of the mobile phone of the accused persons. He deposed about joining the investigation on the subsequent dates and identified his signatures on the voice identification cum transcription memo Ex. PW10/A, Ex. PW10/B and Ex. PW10/C (colly). He correctly identified accused Badri in the court. He identified the currency notes amounting to Rs.2 lakh with denomination of Rs.500/-x 312 and Rs. 2000/-x 22 as the same which were produced by the complainant at CBI i.e. Ex. PW11/A3 (Colly). He also identified SanDisk make memory card Ex. Q-2 part of Ex. P2 (colly) and also Q1 part of Ex. P1 (colly) as well as the DVR bearing description CFSL-2020-363,RC, ADI 2020-A-0018 Ex. DVR, Ex. S1 part of Ex. P3 (colly), Ex. S2 part CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 13/176 of Ex. P4 (colly), Ex. S3 part of Ex. P5 (colly). He had identified voice of Sh. Jaideep Mathur in File no. 200617_1535, his own voice in File no. 200617_1536, voice of Constable Badri in File no. 200617_1849, voice of complainant and Badri in File no. 200617_1911, voice of complainant in File no. 200617_1921 and voice of Badri in File no. 200617_1956 in Q-2.
3.12 PW12 Sh. Jaideep Mathur, Assistant Section Officer, DDA (independent witness) - He deposed that as directed by the AD, PB-3 DDA, he had joined the investigation during the verification & trap proceedings and explained in detail how the verification was conducted and how the trap was laid. He deposed about the procurement of the DVR, blank memory card, recording of his introductory voice and going to PS Vijay Vihar alongwith complainant, Inspector Naval and SI Pradeep. He deposed about calls exchanged between the complainant and Constable Samay Singh to confirm the availability of accused no. 1, hearing the said calls and the recording of the calls in the memory card through the DVR. He deposed that he could not enter the police station and only the complainant went there, who came back after about one hour and narrated the sequence of events which happened inside the police station i.e. demand of Rs. 6 lacs by accused no. 1, direction by accused no. 1 to pay Rs. 2 lacs to accused no. 2 on the next day and the remaining amount within 10 days. He deposed about the preparation of the verification memo i.e. Ex. PW8/A2. He deposed about the seizure of the memory card in Ex. P1 and handing over of the seal used to seal the memory card to him. He deposed about visiting the CBI office on the next day i.e. 17.06.2020 and CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 14/176 meeting the other independent witness i.e. PW11, noting down of the details of the denomination of Rs. 2 lacs brought by the complainant and treatment of the said amount as well as envelope in which it was kept with phenolphthalein powder. The deposition of the witness as regards the trap proceedings is on almost similar lines as that of PW8 and PW11. He deposed that he was instructed to stay with the Trap Laying Officer, PW11 was instructed to stay with the complainant and the complainant was instructed to pay the bribe money on the specific demand of the accused as well as to give signal by rubbing of his face after delivering of the same. He deposed that the CBI team reached near the weekly market, call was made by the complainant, complainant entered the saloon and thereafter came back and sat in his vehicle. He deposed that accused no. 2 came out of the saloon, went to the complainant's car wherein complainant handed over the envelope containing the bribe amount to accused no. 2 who then proceeded to sit on a bike which was ridden by one another person and he was apprehended by the CBI team along with person who was riding the motorcycle. He deposed about the subsequent proceedings on the similar lines as deposed by PW8 and PW11 i.e. preparation of site plan Ex. PW8/A5, tallying of the bribe amount/GC notes and preparation of handing over memo Ex. PW8/A3, seizure of the right hand wash of accused no. 2 i.e. Ex. P10, hearing of the conversation between Constable Badri and Constable Jitender which was recorded in the in-built memory of the mobile phone and preparation of the arrest-cum-personal search memo Ex. PW11/A2. He identified the case property i.e. yellow envelope containing the bribe amount as Ex. PW11/A3 and deposed that the said amount was CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 15/176 recovered from the possession of accused Badri after the same was given to him by the complainant and that subsequently he had tallied the same with Ex. PW8/A3. He deposed about recording of the voice samples of accused S.S. Chahal, Constable Badri and Constable Jitender after recording of his introductory voice and that of PW11 in S1 part of Ex. P2, S2 part of Ex. P4 and S3 part of Ex. P5. He deposed about seizure of the mobile phone of accused no. 2/Constable Badri and Constable Jitender i.e. Ex. P7 and Ex. P8 vide Ex. PW8/A4. He had identified the DVR used in the trap proceedings as Ex. P6 during the trial. He deposed about identification of his voice, PW11 and of the complainant and preparation of transcripts of memory cards Q1 and Q2 vide voice cum identification memo i.e. Ex. PW10/A and the transcription as Ex. PW10/B and Ex. PW10/C respectively. When Q1 was played, he identified his introductory voice in file no. 200616_1655, voice of complainant and Constable Samay Singh in file no. 200616_1825 & file no. 200616_1827 and complainant's voice in file no. 200616_1835.
When Q2 part of Ex. P2 was played, he identified his voice in file no. 200617_1535 and that of PW11 in file no. 200617_1536. He also identified voice in file no. 200617_1849 as of Constable Badri probably and in file no. 200617_1911, file no. 200617_1956 & file no. 200617_1921 as of the complainant. He failed to identify the voices in files no. 200617_1957 and 200617_1958. Similarly he identified his introductory voice in file no. 200618_0449 and that of PW11 in file no. 200618_0450 in S-1 memory card. He also identified voice of accused no. 1 in file no. 200618_0451 & file no. 200618_0453 and his & PW11's CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 16/176 concluding voice in file no. 200618_0454 and file no. 200618_0456_01 respectively.
He also identified his introductory voice in file no. 200618_0511 in S-2 memory card part of Ex. P4 (colly) and that of PW11 in file no. 200618_0512. He also identified voice of accused Badri in file no. 200618_0513 & file no. 200618_0514 and his & PW11's concluding voice in file no. 200618_0516 & file no. 200618_0517 respectively.
When S3 part of Ex. P5 was played, he identified his and PW11's introductory voice in file no. 200618_0354 & file no. 200618_0355 respectively. In file no. 200618_0356 & file no. 200618_0358 he identified the voice of Ct. Jitender and in file no. 200618_0359 & File no. 200618_0400 he identified his and PW11's concluding voice.
3.13 PW13 Inspector Shyam Rai, ACB, CBI, New Delhi (Trap Laying Officer) - He deposed that on 17.06.2020 the investigation of the present matter was entrusted to him by SP CBI ACB. He deposed about joining of independent witnesses i.e. PW11 and PW12 and thereafter deposed about the trap proceedings in detail as deposed by PW8, PW11 and PW12. He deposed about how the trap was laid and how the bribe amount was recovered from accused no. 2. He deposed about the seizure and sealing of the DVR used in the trap proceedings, arrest of both the accused persons and constable Jitender as well as seizure of mobile phones of accused no. 2 and Constable Jitender. He deposed about preparation of the recovery memo Ex. PW8/A5 and identified the case property during the trial.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 17/176 3.14 PW14 SI Vikrant Tomar (Trap Team Member) - He deposed on similar lines as deposed by PW8, PW11, PW12 and PW13. He also deposed that at the spot he saw accused no. 2 coming to the complainant's car, asking for money from the complainant by gestures and that the complainant handed over the envelope containing the bribe amount to accused no. 2 who took the same in his right hand and sat on the motorcycle driven by Constable Jitender, at which point he was apprehended by PW13 and SI Pradeep.
3.15 PW15 Inspector Ravinder Bharti - He is the IO of the case. He has stated that the investigation of this case was handed over to him by Inspector Shyam Rai (TLO) on 29.06.2020 and the FIR, verification memo, pre and post trap memos, rough site plan, arrest memo and other documents etc. alongwith the case diary were also handed over to him. He has further stated that he had forwarded hand wash of accused to CFSL vide forwarding letter Ex. PW15/A (colly). He has stated that he had also forwarded Q1, Q2, S1, S2, S3, DVR, mobile phone of accused Badri Prasad and mobile phone of Jitender to CFSL vide forwarding letter Ex. PW15/B (colly). He has stated that he correctly recorded the statement of the witnesses including complainant, trap team members, independent witnesses and other witnesses as per their narration and that positive FSL report of Chemistry Division Ex. PW9/A & Physics Division Ex. PW6/B were received by him and placed on record. He stated that he had conducted the proceedings regarding voice identification & preparing of transcription on 29.07.2020 and also prepared voice identification cum transcription memo in the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 18/176 presence of complainant and independent witnesses i.e. Ex. PW10/A and the transcripts are on record as Ex. PW10/B (colly) and Ex. PW10/C (colly). He stated that he had received the records of mobile phone i.e. CDRs, CAFs ID Cell charts etc. i.e. Ex. PW3/A (colly), Ex PW4/A (colly) and Ex. PW5/A (colly) and had also received the certified copies of service book and other related documents in respect of both the accused persons and Ct. Jitender vide letter Ex. PW-1/A (colly). He stated that he received sanction of prosecution from the competent authority against both the accused persons vide Ex. PW7/A2 and PW7/A3 and after after completion of investigation, he filed the chargesheet.
Statement of Accused
4. After conclusion of prosecution evidence, statement of both the accused persons under Section 313 Cr.P.C were recorded wherein they denied all the incriminating evidence put to them as wrong and incorrect. Both the accused pleaded their innocence and came up with the plea that they have been falsely implicated in the present case by the CBI to meet the target of registration of FIRs by ACB, CBI. Accused persons examined Constable Jitender as DW1 in their defence.
Defence evidence
5. DW 1 Ct. Jitender deposed that on 17.06.2020, he was posted as Constable at PS Vijay Vihar and was deployed in beat no. 5, Budh Vihar, Phase-I. He was shown the attested copy of Duty Roaster of PS Vijay Vihar, dated 17.06.2020 Mark CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 19/176 DW1/A and after seeing the same, he deposed that his name is appearing as Ct. Jitender in beat no. 5 of the patrolling duty on the said duty roaster. He was shown the attested copy of the general diary no. 0095A dated 17.06.2020 and after perusing the said document, he deposed that in said document, his name is reflected for patrolling duty on 17.06.2020 at beat no. 5, Phase-I Budh Vihar, Delhi. He deposed that on 17.06.2020, while patrolling in said area, he had also visited Main Market Budh Vihar where he met Ct. Badri Prasad Yadav on the road of said market. He deposed that Ct. Badri asked him to stop his office bike by giving him a signal by hand and asked him if he had been going to police station Vijay Vihar, however, he told him that he had been on patrolling duty and would not be going to PS Vijay Vihar. He deposed that while they were just talking to each other, in the meantime, one Baleno car came and stopped near them and the driver of that car whose name was later on revealed as Sunil Vats called Ct. Badri by giving a hand gesture and asked him if SHO Vijay Vihar was present in the market, however, Ct. Badri told him (Sunil Vats) that SHO had gone to PS Vijay Vihar and upon hearing this, Sunil Vats started his car and he was asked by Ct. Badri if he was going to PS Vijay Vihar and if so, he (Ct. Badri) may be given a lift as he (Ct. Badri) also wanted to go to PS Vijay Vihar. He deposed that after that, Sunil Vats told him that he was also going to PS Vijay Vihar and he allowed Ct. Badri to accompany him. He deposed that thereafter, Ct. Badri sat on the seat besides the driver seat of Baleno Car. He deposed that suddenly thereafter, two more persons came there and sat on the rear seat of said car. He deposed that thereafter he saw Ct. Badri handing over said person at the rear seat one envelope CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 20/176 which he lifted from the dash board of the said car on the asking of said people. He deposed that after they were handed over said envelope, they alighted from the car and asked Ct. Badri to come out of the car. He deposed that said two people started arguing with Ct. Badri and after seeing him he came to intervene but in the meantime, 4-5 more people who were standing on the opposite side of the road also came there and one of them introduced himself as Inspector Shyam Rai from CBI and asked him not to interfere. He deposed that thereafter, Inspector Shyam Rai asked another person namely Nawal as to where was the witness. He deposed that thereafter, they called one person who was on the opposite side of the road by giving him a hand signal. He deposed that thereafter, Inspector Shyam Rai took the envelope from the hand of Nawal and handed over the same to said person who came from the opposite side of the road. He deposed that the name of said person was later on revealed as Mathur. He deposed that thereafter, he and Ct. Badri raised objection upon which, Inspector Shyam Rai asked the other team members of CBI to take him as well as Ct. Badri. He deposed that thereafter they both were made to sit in Innova Car. He deposed that the said innova car was stopped 100 meters away from PS Vijay Vihar. He deposed that Inspector Shyam Rai came out of innova car and opened the dikki of said car and prepared some solution in a glass container and made Badri to dip his hand in said container upon which, the colour of said solution turned pink and said solution was transferred in some glass bottle. He deposed that thereafter, the CBI team took them to police station Vijay Vihar where after sometime, SHO Surender Singh Chahal was also brought. He deposed that after the other staff of the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 21/176 police station also raised objection, the CBI team took him, Ct. Badri as well as SHO S.S. Chahal to CBI office where they all three were illegally arrested in a false case. He deposed that his phone as well as the phone of Ct. Badri were also took into CBI possession at about 7:00 pm -7:15 pm by Inspector Shyam Rai at the spot in the main market of Budh Vihar. He deposed that before his phone was taken into possession, he was trying to make a call to the staff of PS Vijay Vihar.
Findings
6. I have heard the rival contentions raised at bar by Ld. PP for the CBI as well as the Ld. Defence Counsels, carefully considered & examined the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case. I have also gone through the detailed written arguments filed by the respective parties and the supporting case laws.
6.1 In order to appreciate the respective contentions of the parties, it would be relevant to refer to the provisions of Section 7 and 20 of PC Act, 1988 which reads as under:-
"7. Offence relating to public servant being bribed.--Any public servant who,--
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 22/176 performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable, with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration.--A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2.-- For the purpose of this section,--
(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
20. Presumption where public servant accepts any undue advantage.--Where, in any trial of an offence punishable under section 7 or under section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11."
6.2 Section 7 as it existed prior to 26.07.2018 was different from the present Section 7 and it specifically referred to "any gratification" whereas the substituted/amended Section 7 does not use the word "gratification" but it uses a wider term CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 23/176 "undue advantage". To understand the essential facts/ ingredients which the prosecution needs to establish to constitute an offence u/s 7 and its interplay with section 20 it will be worthwhile to go through the following observations of the Hon'ble Apex Court in V. Sejappa v. State by Police Inspector Lokayukta, Chitradurga 2016 (3) JCC 1488:-
"10. In order to constitute an offence under Section 7 of the Prevention of Corruption Act, 'proof of demand' is a sine quo non. This has been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55, wherein this Court held as under:-
"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P.(2010) 15 SCC 1 and C.M. Girish Babu v. CBI (2009) 3 SCC 779."
The same view was reiterated in P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr. (2015) 10 SCC 152."
...........
18. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act......
19. After referring to Surajmal v. State (Delhi Administration) (1979) 4 SCC 725, in C.M. Girish Babu v. CBI, Cochin, High Court of 13 "18. In Suraj Mal v. State (Delhi Admn.) (1979) 4 SCC 725, this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 24/176 accused voluntarily accepted the money knowing it to be bribe." In State of Kerala and Anr. v. C.P. Rao (2011) 6 SCC 450, it was held that mere recovery of tainted money is not sufficient to convict the accused and there has to be corroboration of the testimony of the complainant regarding the demand of bribe.
20. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to following observation in Mukut Bihari and Anr. v. State of Rajasthan (2012) 11 SCC 642, wherein it was held as under:-
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
6.3 Therefore the foremost essential fact which the prosecution has to establish, that too beyond reasonable doubt, to bring home the guilt against the accused persons u/s 7 of the PC Act is that demand was raised by the accused persons.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 25/176 DEMAND A. Demand stands proved from the complaint and complainant's deposition.
6.4 As far as the demand is concerned, the present prosecution came to be lodged on the basis of complaint Ex. PW8/A-1, filed by complainant Sh. Sunil Kumar Vats (PW10). The image of the complaint is reproduced hereunder:-
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 26/176 6.5 The said complaint is a handwritten one wherein there are specific allegations of demand of Rs. 5 lacs by accused no. 1 for permitting the complainant to raise boundary wall at his plot. Accused no. 1, according to the complaint, had also threatened to implicate the complainant in false cases in case the said demand was not fulfilled. No doubt during his examination in chief the complainant had turned hostile and as regards the complaint he claimed that the same was lodged against accused no. 1 under pressure of one SI of CBI and he had also claimed that the original complaint which he had taken to submit with CBI was torn off and thrown in the dustbin, however, I have CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 27/176 absolutely no hesitation in concluding that he/PW10 made a false statement to that extent. The relevant portion of deposition of PW10 in this regard read as under:-
"When I went to CBI office, I met one SI, whose name I do not remember today. I told SI CBI about the money being asked from me in the name of SHO. The SI of CBI told me that I have to name the SHO and make specific allegation against the SHO and then only they will register the complaint against SHO and would arrest him.
CBI had never recorded my statement. Under the pressure of SI of CBI, I lodged complaint against SHO. I do not remember the name of said SI who asked me to specifically name SHO in my complaint."
6.6 The falsity of the above deposition is evident from the fact that he failed to give the name of the SI, CBI who had allegedly pressurized him to give false complaint against accused no. 1/SHO. Here the moot question arises as to why the said unknown SI, CBI would pressurize the complainant to lodge false complaint against the SHO. Defence has not been able to bring any material on record which could even remotely prove that the said SI, CBI had any personal grudge/enmity against accused no.1/SHO to falsely implicate him. It is to be seen that it was the complainant who had approached the CBI and not vice- versa. Furthermore the complainant never lodged any complaint, with the higher officials, against the said SI, CBI who had allegedly pressurized, compelled him to lodge false complaint against accused no.1/SHO. The relevant portion of his cross- examination, by the Ld. SPP for the CBI, in this regard read as under:-
"I never made any complaint against the said SI of CBI, who asked me to specifically name SHO in my complaint, to the higher officials of CBI or Delhi Police or any other competent authority."
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 28/176 6.7 After PW10 gave the complaint he was taken to the SP, CBI and at that time too he did not even once complain to SP, CBI that he was being pressurized by SI, CBI to lodge a false case against accused no. 1. If indeed he was pressurized by SI CBI, he would have definitely informed the SP, CBI about the said fact. It also does not appeal to a prudent mind that PW10 who was bold enough to lodge a complaint against the SHO/Inspector of his area could be pressurized by a Sub Inspector/SI. The relevant portion of his cross-examination in this regard read as under:-
"Thereafter, I was taken to the office of SP, CBI, I remained in the office of SP for 2-3 minutes. I did not tell the SP that I was asked to specifically name SHO and raise allegations against him about the bribery by the SI."
6.8 In fact he went on to state that upon being asked by the SP, CBI as to who was demanding bribe from him, he told the SP that he had named the said person in his complaint Ex. PW8/A-1. The relevant portion of his cross-examination in this regard read as under:-
"I was asked by the SP, who had been raising demand for bribe from me, I told him that I had named the said person in my complaint Ex. PW8/A-1."
6.9 The complaint as discussed above was a handwritten one and in this regard deposition of the complainant/PW10 read as under:-
"I am doing the business of plastic dana. In the year 2020, I had given a handwritten complaint dated 16.06.2020 to the CBI.
At this stage, the witness is shown a handwritten complaint in Hindi already Ex. PW8/A1. The witness identifies his handwriting (Hindi) and signatures on the same. The signatures are at point B."
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 29/176 6.10 In fact during his cross-examination, by Ld. SPP for the CBI, this witness while admitting the contents of complaint Ex. PW8/A-1 specifically stated that whatever was stated in the complaint had actually happened. The relevant portion of his cross-examination in this regard read as under:-
"It is correct that I had stated in my complaint that " wahan ke SHO Sh. S.S.Chahal ne mujhe kaha ki tum char diwari karo baki mei dekh lunga. Uske baad se hi SHO Chahal mujhe pareshan kar raha hai. 10.06.2020 ko SHO S.S.Chahal ne mujhe sipahi Samay Singh ke dwara bulwaya. Usne kaha ki meine tumhe ukt plot ki chaar diwari karne di hai, isliye tumhe panch lakh rishwat ke dene honge nahi toh mei tumhe jhoote mukdme me jail mei band kar dunga. Shriman ji mei SHO S.S.Chahal ko rishwat nahi dena chahta atah aap se niwedan hai ki uske khilaf uchit karwahi kare". Whatever I stated in my complaint had actually happened."
6.11 No doubt he had also stated as under:-
"Again said SHO never raised any demand of bribe from me. Court question : Why did you say that you had stated in your complaint what had actually happened with you ? Ans. I had narrated in the complaint as asked by CBI officials because they told that only then they could help me. The original complaint, running into 3-4 pages, which I had taken with me to submit with CBI was torn off and thrown it in the dustbin after giving the aforementioned complaint Ex. PW8/A-1."
,however, the said statement was nothing but an afterthought on account of the fact that the witness had been won over by the accused persons and he accordingly deposed falsely in order to save them. There is absolutely no doubt in my mind that PW10 changed sides, transferred his loyalty to the adversary. There is enough material available on record which leaves no doubt that the complaint Ex. PW8/A-1 was a truthful account of the what actually transpired i.e. the demand raised by the SHO/accused no. 1. One of the reason why PW10 turned hostile was due to the fact that he got involved/was involved in a rape CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 30/176 case at PS Vijay Vihar i.e. the same police station of which accused no. 1 was the SHO. This crucial fact emerged during the cross-examination of the complainant/PW10 and the relevant portion reads as under:-
"I am facing a trial in a criminal case listed by Delhi Police under Section 376 Cr.P.C. The said case was got registered against me on 31.12.2021 at PS Vijay Vihar. It is wrong to suggest that the said FIR was got registered against me at the instance of the accused persons in order to put pressure on me to give statement in their favour in the instant case. It is wrong to suggest that I am deposing falsely."
6.12 The fact that the FIR was registered with the same police station, where accused no. 1 was the SHO and accused no. 2 was working as a Constable duly explains as to why the complainant/PW10 turned hostile. It will also be pertinent to highlight that the deposition of the witness was recorded on 30.07.2022 and the rape FIR was registered against him on 31.12.2021 i.e. around 7 months before his deposition. This speaks for itself.
6.13 Nonetheless despite having turned hostile, complainant/PW10's above discussed statements and the one reproduced hereunder leaves absolutely no doubt that accused no. 1 had indeed raised demand of Rs. 5 lacs to him. The relevant portion read as under:-
"I went to CBI office at around 11 am on 17.06.2020. The SHO S.S.Chahal had demanded Rs. 5 lakh as bribe amount. The CBI personnel told me on 17.06.2020 that they had negotiated the amount to Rs. 2 lakh finally and told me to arrange Rs. 2 lakh.
Court question : You said that SHO S.S.Chahal had demanded Rs. 5 lakh, whether the said amount was demanded by SHO S.S.Chahal himself from you?
Ans. No, it was demanded through some other person, namely Ct. Samay."
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 31/176 6.14 Ld. Defence Counsels vehemently argued that once the complainant/PW10 turned hostile no reliance can be placed upon his testimony and that his turning hostile proved fatal to the prosecution case. It was argued that the complainant categorically denied, during his cross examination by Ld. SPP for the CBI, that accused no. 1 had demanded Rs. 5 lacs from him or that he had requested him to reduce the said amount to Rs. 4 lacs or that he had told accused no. 1 that he would pay Rs. 2 lacs on the next day upon which accused no. 1 directed him to handover the money to accused no. 2 accordingly. It was argued that during his cross examination by the defence he had admitted that accused no. 1 had never met him nor made any demand of bribe at any point of time. However, I find no merits in their arguments. Firstly, as already discussed above, complainant made categoric statements against accused no. 1 which duly established the demand raised by him and I find no reasons to ignore those statements. These statements coupled with the other material on record provide cogent and clinching evidence/proof of demand. Secondly, if the demand was never raised by accused no. 1 then why did the complainant arrange Rs. 2 lacs and went to the CBI office on the next day. If there was no such demand he would not have taken the pain of arranging the said amount. Not only did he arrange the amount but the fact that the amount was treated with phenolphthalein powder was also duly admitted by him when he stated as under:-
"Thereafter, I arranged Rs. 2 lakh and went back to CBI office at about 2-3 p.m. and met CBI officials.........Thereafter, the amount of Rs. 2 lakh was kept in an envelope and handed over to me. The said envelope was also treated with the same powder. The said envelope was again kept in white colour cotton carry bag and thereafter it was given to me by CBI official.......... It is CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 32/176 correct that I was directed not to touch the tainted bribe amount and to hand over the same to the accused on his specific demand or on his specific direction to some other person as directed by them but not otherwise."
6.15 Thirdly, the law is fairly well settled now as regards the weightage to be attached to the testimony of a witness who has been declared hostile. Evidence of such a witness need not be totally rejected or treated as effaced or washed off the record altogether. It can be accepted to the extent his version is found to be dependable and is consistent with the case of the prosecution or defence on a careful scrutiny thereof (Balu Sonba Shinde v. State of Maharashtra 2003 SCC (Crl.)
112).
6.16 In Shamsher Singh @ Rameshwar v. State of Haryana, (P&H) 2006(2) R.C.R.(Criminal) 867 it was further held that these days it is not an uncommon practice that a witness is won over and he turns hostile.
6.17 Similarly in Nisar Khan @ Guddu v. State of Uttaranchal (SC) 2006(1) Apex Criminal 340 though the PWs turned hostile/resiled from their statement the court upheld the conviction while observing that it seemed PWs were won over either by money, by muscle power, by threats or intimidation, but same cannot form the basis of acquitting the accused. Similar observation were made in Manoj Kumar v. State of Punjab (P&H) (D.B.) 2005(2) R.C.R.(Criminal) 813 and Swaran Singh v. State of Punjab (SC) 2000(2) R.C.R.(Criminal) 762.
6.18 In T. Shankar Prasad vs State Of Andhra Pradesh CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 33/176 AIR 2004 SUPREME COURT 1242 it has been held as under:-
"The fact that PW-1 did not stick to his statement made during investigation does not totally obliterate his evidence. Even in criminal prosecution when a witness is cross-examined and contradicted with the leave of Court by the party calling him, his evidence cannot as a matter of law be treated as washed off record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process the credit of the witness has not been completely shaken he may after reading and considering the evidence of the said witness, accept in the light of other evidence on record that part of his testimony which he found to be creditworthy and act upon it. As noted above, PW-1 did not totally resile from his earlier statement. There was only a half- hearted attempt to partially shield A-
...............................In State of U.P. v. Dr. G.K.Ghosh (AIR 1984 SC 1453) it was observed that in case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the conviction."
6.19 In Attar Singh vs State of Maharashtra AIRONLINE 2012 SC 466 it was held as under:-
"13. .......... It could not be ignored that when a witness is declared hostile and when his testimony is not shaken on material points in the cross-examination, there is no ground to reject his testimony in toto as it is well-settled by a catena of decisions that the Court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in toto and can be relied upon partly. If some portion of the statement of the hostile witness inspires confidence, it can be relied upon. He cannot be thrown out as wholly unreliable. This was the view expressed by this court in the case of Syed Akbar vs. State of Karnataka reported in AIR 1979 SC 1848 whereby the learned Judges of the Supreme Court reversed the judgment of the Karnataka High Court which had discarded the evidence of a hostile witness in its entirety. Similarly, other High Courts in the matter of Gulshan Kumar vs. State (1993) Crl.L.J. 1525 as also Kunwar CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 34/176 vs. State of U.P. (1993) Crl.L.J. 3421 as also Haneefa vs. State (1993) Crl.L.J. 2125 have held that it is not necessary to discard the evidence of the hostile witness in toto and can be relied upon partly. So also, in the matter of State of U.P. vs. Chet Ram reported in AIR 1989 SC 1543 = (1989) Crl.L.J. 1785; it was held that if some portion of the statement of the hostile witness inspires confidence it can be relied upon and the witness cannot be termed as wholly unreliable. It was further categorically held in the case of Shatrughan vs. State of M.P. (1993) Crl.L.J. 3120 that hostile witness is not necessarily a false witness. Granting of a permission by the Court to cross-examine his own witness does not amount to adjudication by the Court as to the veracity of a witness. It only means a declaration that the witness is adverse or unfriendly to the party calling him and not that the witness is untruthful. This was the view expressed by this Court in the matter of Sat Paul vs. Delhi Administration AIR 1976 SC
294. Thus, merely because a witness becomes hostile it would not result in throwing out the prosecution case, but the Court must see the relative effect of his testimony. If the evidence of a hostile witness is corroborated by other evidence, there is no legal bar to convict the accused. Thus testimony of a hostile witness is acceptable to the extent it is corroborated by that of a reliable witness. It is, therefore, open to the Court to consider the evidence and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused."
6.20 In Neeraj Dutta vs State (Govt. of N.C.T. of Delhi) 2022 LiveLaw (SC) 1029 it has been held as under:-
"52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross- examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
67. Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 35/176 be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence."
6.21 In view of the handwritten complaint and the relevant extracts of the deposition of PW10, as discussed above, coupled with other material on record I find no reasons to completely discard the testimony of PW10 which to a great extent corroborates and is corroborated by the other material available on record.
6.22 Though while relying upon Roshan Lal Saini and anr Vs. CBI 2011 (1) JCC 102 Delhi Ld. Defence counsels vehemently argued that filing of the complaint cannot be taken as a proof of demand, more so when the complainant turned hostile not only as regards the complaint but also as regards the demand, however, I find no merits in the said arguments. I have no hesitation in concluding that the handwritten complaint Ex. PW8/A1 was a genuine one. Not only the complaint Ex. PW8/A- 1 and PW10's deposition proves the demand but there is additionally enough material available on record to prove the demand. Moreover the said case law is based upon distinct facts altogether. In that case all the independent witnesses failed to support the prosecution case and even the IO failed to prove the acceptance/recovery of the tainted money from the accused CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 36/176 whereas in the present case not only the demand but even the acceptance/recovery stands duly proved on record by independent and official witnesses which has been discussed in detail herein below.
6.23 While pointing towards para 16.22 of the main charge sheet, the Ld. Defence Counsels vehemently argued that though initially the conduct of the complainant was not above the board, which aspect was investigated by the IO/CBI officials but surprisingly in the supplementary charge sheet clean chit was given to him. It was argued that the said portion of the charge sheet itself proves that the complainant is not a reliable person. However, I find no merits in the said arguments. It is indeed surprising that in the charge sheet the CBI/IO is talking about the conduct of its star/main witness/the complainant i.e. the same was not above board and they were investigating the said aspect. Why the same was done is a big question and does not reflect well upon the CBI/IO more so when the verification and the trap proceedings conducted by CBI with the aid & assistance of the complainant as well as independent witnesses, as have been discussed in detail in this judgment, proved the demand and acceptance beyond any doubt whatsoever. Was the IO blind to the verification, trap proceedings? Even if the conduct of the complainant was not above board can it ever justify the demand by accused no. 1 and acceptance by accused no. 2, pursuant to the said demand? Can the accused persons ever take shield behind, cover up or justify their illegal deeds merely by highlighting the conduct of the complainant even if it was somewhere not above the board, though this court has absolutely CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 37/176 no idea as to how it was not? The answer is a big No. B. Proof of demand during verification proceedings 6.24 After the complaint was received, the same was marked for verification to SI Pradeep (PW8) who conducted the verification on 16.06.2020 in the presence of independent witness Sh. Jaideep Mathur (PW12) and other CBI officials. At the outset it will be worthwhile to highlight that once the verification was conducted by SI Pradeep and not by that unknown SI who had allegedly pressurized the complainant (because it is not the complainant's case that it was SI Pradeep who had pressurized him), then the complainant, if indeed he was pressurized, would have told about the said fact to SI Pradeep. His having not done so and having participated in the verification proceedings itself sufficiently proves that the complaint was a genuine one and there was absolutely no pressure whatsoever on the complainant to give a false complaint against accused no. 1.
6.25 PW8 SI Pradeep explained in detail as to how the verification of the complaint was conducted. For this verification a DVR of make Sony and a fresh SD card of 8GB make Sandisk were arranged. The seal of the memory card was opened in the presence of independent witness and the functioning of the DVR was explained to the complainant and the independent witness. Introductory voice of independent witness was recorded in the memory card, through the DVR, after ensuring its blankness. This fact was duly corroborated by independent witness PW12 CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 38/176 Sh. Jaideep Mathur and there is absolutely no inconsistency in their statements on material aspects.
6.26 The CBI team consisting of PW8, Insp. N.C. Nawal, the complainant and the independent witness reached PS Vijay Vihar whereupon complainant called Constable Samay Singh on his mobile number 8076551887, from his mobile number 8467804040, to enquire about the whereabouts of accused no.1. Why the complainant contacted/called Constable Samay Singh and not accused no. 1 was duly explained by PW8 when he stated "Thereafter, the complainant was asked to make a call to SHO S.S. Chahal through his mobile phone to know about his whereabouts. However, the complainant told that SHO has denied him to contact him on his mobile phone. Therefore, he dialed mobile number of one Constable Samay Singh and enquired about the whereabouts of the SHO." In fact it is evident from the complaint itself that the accused no. 1 had called the complainant through Constable Samay Singh on 10.06.2020 when the demand was first raised. Constable Samay Singh reverted back informing the complainant that accused no.1 was available at the police station. This call was heard by the CBI team, the complainant and the independent witness as complainant's mobile was on loud speaker mode and the call was also duly recorded in the sandisk memory card Q1 which is part of Ex. P1 (colly) through the DVR. In fact the call made by complainant to Constable Samay Singh prior to Constable Samay Singh's call was also recorded in Q1. These facts stand duly corroborated by the Verifying Officer (PW8) and independent witness Sh. Jaideep Mathur (PW12) irrespective of CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 39/176 the total denial by PW10 as regards the verification proceedings. In fact Q1 establishes the presence of accused no. 2 at the police station at the time of verification as in the recorded conversation Constable Samay Singh had asked the complainant to talk to/meet accused no. 2 at the police station and accused no. 1 also called accused no. 2 while directing the complainant to pay bribe amount to him on the next day. The transcript of the said calls/conversations is on record as Ex. PW10/B and the relevant image of the transcript is reproduced hereunder:-
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 40/176 6.27 Despite PW10's denial that he had exchanged calls with Constable Samay Singh on 16.06.2020, the said fact is duly established through the CDR of Constable Samay Singh i.e. Ex.
PW5/A (colly) and PW10's denial in this regard is/was a blatant lie which was completely negated by Ex. PW5/A. Though it was argued by Ld. Defence counsels, while relying upon Achchay Lal Yadav Vs. State 2014 (8) LRC 236 Delhi, Ashwani and ors Vs. State Crl. Appeal no. 323/18 and 414/18 dated 08.10.2018 and Rajkumar Vs State 2011 (4) JCC 2818 Delhi DB that the CDRs of mobile phone of Constable Samay Singh and for that matter of accused no. 1 and DW1 Constable Jitender were not legally proved for want of complete certificate u/s 65B of Indian Evidence Act as well as for non fulfillment of requirement of section 65B of Indian Evidence Act, however, I find no merits in their arguments.
6.28 To prove the fact that mobile phone bearing no. 8076551887 belonged to Constable Samay Singh and to prove its CDF/CAF etc. prosecution had examined PW5 Sh. Kamal Kumar, Nodal Officer from the Reliance Jio Infocom Ltd. who categorically proved that the said mobile number was issued in the name of Constable Samay Singh. He proved that the certified copy of the CDR/e-KYC and CAF as well as the cell ID chart of the said mobile number i.e. Ex. PW5/A (colly) was issued by him along with certificate u/s 65B of the Evidence Act dated 31.07.2020 and he identified his signatures as well as stamp and seal on the same. No doubt the said witness stated that the proforma of the certificate u/s 65 B of Evidence Act is available in their computer and that after changing particulars of the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 41/176 particular case, they take out the prints after changing the mobile phone numbers and the period but that by itself does not create any doubt upon the authenticity of the record/Ex. PW5/A. It is only a matter of convenience that a proforma of the certificate is available in the office of PW5 and the same is also quite logical. The CDR/CAF/Cell ID Chart are required by different agencies in investigation of various matters. It is a matter of common knowledge that the mobile subscriber companies are providing the above details and issuing hundreds of supporting certificates u/s 65B to these agencies/departments. The mobile subscriber companies cannot be expected to type a fresh certificate every single time the same is required by the investigating agencies/departments. Same is practically not possible/feasible. If the contention of Ld. Defence counsels is accepted, then half of the company staff/officials would be kept busy only in typing the certificates for different agencies/departments. Instead of going into such technicalities the defence, if it wanted to create doubt upon the CDR/CAF/Cell ID Chart, should have brought some cogent material on record which could dispute/dislodge the prosecution case based upon Ex. PW5/A (colly). There is no material whatsoever on record to create any iota of doubt on Ex. PW5/A and the arguments are absolutely bald and flimsy. Defence could not even remotely prove that Ex. PW5/A is a forged, fabricated or doctored record. The Ld. Defenee counsels could not prove that the said mobile number did not belong to Constable Samay Singh or that it belonged to someone else. In fact as per the deposition of PW5 the e-KYC of the mobile number of Constable Samay Singh was generated, activated on the basis of his aadhar card bearing no. 761432926675. It is not CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 42/176 the defence's case that the said aadhar card does not belong to Constable Samay Singh. Similarly, nothing was brought on record to prove that Constable Samay Singh was not using the said mobile number or that he was not present at the place as PW5/A establishes or that he was present somewhere else. Without establishing any of these facts the defence cannot simply go into the technicalities, attack certificate u/s 65B of the Evidence Act and expect this court to disbelieve the prosecution case based upon Ex. PW5/A. Last but not the least, recourse to the technical flaws or procedural lapses, if any, which do not prejudice the accused in any manner whatsoever cannot be permitted to be taken to defeat the ends of justice, the larger interest of the statute.
6.29 No doubt the IO did not collect the CDR/CAF etc. of complainant's mobile phone, which lacuna the Ld. Defence counsels vehemently pointed out during the arguments, but even in the absence of complainant's CDR, the CDR/CAF Ex. PW5/A (colly) of Constable Samay Singh duly proves the fact that the calls were indeed exchanged between him and the complainant on 16.06.2020 from 18.26 hours to 18.28 hours i.e. the day when the verification was conducted. The defence did not examine Constable Samay Singh to prove that no such calls were exchanged between him and the complainant nor anything could be brought on record to create any doubt as regards the CDR/CAF i.e. Ex. PW5/A (colly). Without examining Constable Samay Singh, the defence could not expect this court to disbelieve the prosecution case based upon Ex. PW5/A. If indeed the defence wanted to dislodge the prosecution case CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 43/176 based on Ex. PW5/A it was for the defence to establish that the call received by Constable Samay Singh on 16.06.2020 was not from the complainant but from some other individual. Defence also could not bring any material on record to establish that mobile number 8076551887 did not belong to Constable Samay Singh or that he was not using the same or that it belonged to/was being used by some other person. As far as failure on the part of the IO to bring on record the CDR/CAF of complainant's mobile number, suffice would be to say that the prosecution case cannot be rejected merely because IO failed to carry out a diligent/professional investigation in this regard.
6.30 For similar reasoning I find no merits in the defence arguments qua the CAF, CDR etc. of mobile phone bearing no. 9871431306 belonging to accused no. 2. From the deposition of PW3 (Nodal Officer Rajeev Vashisht) and the record proved by him i.e Ex. PW3/A it stands duly established that the said mobile number indeed belonged to accused no. 2. The said mobile number, as per the deposition of PW3, was issued on the basis of self attested copy of driving license of accused no. 2. In fact the said fact stands admitted as when the incriminating material emanating through the testimony of PW3 was put to accused no. 2 during his examination u/s 313 Cr.P.C., he stated "It is a matter of record".
6.31 The fact that mobile number 9266412652 belonged to DW1 Constable Jitender was duly proved by PW4 Sh. Raman Singh, Nodal Officer who proved that he had provided the CAF, CDR and Cell ID Chart along with certificate u/s 65B of CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 44/176 Evidence Act to the IO vide Ex. PW4/A and Ex. PW4/B. The number was issued to DW1 Constable Jitender on the basis of self attested copy of his aadhar card bearing no. 423719229154.
6.32 Merely because as per the deposition of PW4 and Ex. PW4/B mobile number 8750870329 was issued in the name of Assistant Commissioner of Police, SHO PS Aman Vihar and not in the name of accused no. 1 that by itself does not imply that the said mobile number was not used by accused no. 1. The said mobile number is not a private number but one of the official number which the Delhi Police is using for its officials/SHO/Inspectors. The numbers are being used by Delhi Police officials in their official capacity and upon transfer, the person succeeding the office gets to use the said number and the same does not go along with the person who has been transferred. Though issued in the name of Assistant Commissioner of Police, SHO PS Aman Vihar, fact remains that the said mobile number was used by accused no. 1. Accused no. 1 did not lead any evidence whatsoever that he was not using the said mobile number as SHO PS Vijay Vihar or that the said mobile number was used by ACP or SHO PS Aman Vihar. Things would have been entirely different had accused no. 1 made any efforts whatsoever to prove the said fact. Nothing stopped him from examining ACP or SHO Aman Vihar to dislodge the prosecution case in this regard and having not done so I find no reason to disbelieve the prosecution story. Most importantly in his examination u/s 313 Cr.P.C. when Ex. PW4/A & Ex. PW4/B were put to him accused no. 1 did not once deny that being SHO of PS Vijay Vihar he was not using official CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 45/176 mobile number 8750870329 and he simply stated "It is incorrect as it was issued in the name of SHO Aman Vihar" "The documents are false and otherwise not proved".
6.33 As far as reliance upon Achchay Lal (supra) is concerned, the facts are distinct as in that case certificate u/s 65B of the Evidence Act was not filed whereas in the case at hand the certificate, certifying the authenticity and genuineness of the CDRs, CAF, Cell ID charts etc. are duly proved on record. As far as Ashwani and ors (supra) is concerned, the facts were different to the extent that the cell location was not filed and the expertise of the witness who provided the CDR and issued the certificate was doubtful and he also admitted having no personal knowledge about the CDR. The other Nodal Officer had not prepared the certificate u/s 65B of the Evidence Act himself. As against the same, in the case at hand the Nodal Officers who provided the above details to the IO had issued the certificates and no challenge was raised qua their expertise. The location chart, in the present case, has been duly proved on record by the prosecution through Nodal Officers. As far as Rajkumar (supra) is concerned, the Sim recovered from the accused was not used for making the ransom call i.e. in the offence and the prosecution could not connect the other mobile number to the witness. Whereas as discussed above there is sufficient evidence on record that the mobile numbers were issued in the name of accused no. 2 Badri and DW1 and as far as accused no. 1 is concerned, he could not prove anything on record to the extent that he was not using the mobile number as per the prosecution story.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 46/176 6.34 It will also be pertinent to highlight that three different Nodal Officers were examined by the prosecution from three different mobile subscriber companies. Defence could not prove anything on record to suggest that all the Nodal Officers deposed falsely at the instance of the IO and I completely fail to understand why they would depose falsely or fabricate/forge the details as above. They had absolutely no reason or motive to depose falsely. It was also not the case of either of the accused that the calls as per the CDR were not made or received by them. Most importantly, the Cell ID/location chart places the accused persons at the place they were as per the prosecution story i.e. accused no. 1 and 2 at the police station at the time of verification and accused no. 2 at the place of trap at the time of acceptance of tainted/bribe money.
6.35 No doubt PW8 Verifying Officer during his cross- examination stated that he does not remember whether the conversation between complainant and Constable Samay Singh which took place at the PS is mentioned in Q1 or not and which statement of PW8 was attempted to be exploited by Ld. Defence Counsels to create doubt upon the verification proceedings, however, the fact remains that the said conversation did take place, transcript of which is on record as Ex. PW10/B and which fact also stands corroborated from Ex. PW5/A (colly) as well as through the testimony of PW12 i.e. the independent witness of verification. Relevant portion of testimony of PW12 in this regard is reproduced hereunder:-
"While going inside the police station, the DVR having new CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 47/176 blank memory card was handed over to the complainant. Blankness of the memory card was checked in the CBI office and to check the same, my introductory voice was also recorded in the memory card in the CBI office. After reaching the police station, the complainant made a call from his phone number to Ct. Samay Singh to check the availability of the SHO in the police station, to which he told that he would revert back after confirming the same. Thereafter, he confirmed the same within two minutes by calling back on the mobile phone of the complainant. The said call was received by the complainant by putting the mobile phone of speaker mode and therefore, I also heard the conversation between the complainant and Ct. Samay Singh, and the same was also getting recording in the memory card in the DVR."
6.36 The above deposition lends further credence to the prosecution case that the complainant had gone to the police station on 16.06.2020 and met accused no. 1. Mere denial by the complainant about the verification proceedings or his claim that he did not meet accused no. 1 at the police station or that no demand was raised by him or that his signatures were obtained by the CBI officials on various papers including verification memo Ex. PW8/A2, whose contents he claimed he was not aware of, does not help the cause of accused persons. The verification of the complaint stands duly proved by PW8 & PW12 and the technical evidence. It will be pertinent to mention that the complainant did not explain as to where else he was present if not with the CBI team at the time of verification.
6.37 During his deposition PW12 had further deposed as under:-
"After 1 hour, the complainant came outside the police station, and narrated the sequence of events which happened inside the police station.
The complainant also handed over the DVR with the memory card inside it to SI Pradeep who switched off the same.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 48/176 The complainant also told him that SHO Surender Singh Chahal had asked him to pay Rs. 2 lakhs on the next day to Ct. Badri Prasad and to pay the remaining amount in the next ten days. The complainant also informed that the accused S.S. Chahal had initially asked for entire amount in the sum of Rs. 6 lakhs but, later on, after the complainant expressed his inability to arrange the entire amount, and said that he could arrange only Rs. 4 lakhs, the SHO asked him to pay Rs. 6 lakhs in two installments as mentioned above."
6.38 This fact was further reiterated by PW12 during his cross-examination while also explaining why he could not hear the conversation/demand when he stated as under:-
"It is correct that I had not myself seen the complainant meeting the accused S.S.Chahal in the PS. (vol. As I was standing outside the PS and the complainant had told the raiding team regarding his having met with SHO S.S.Chahal in the PS, after coming out from the PS)........It is incorrect to suggest that I was not stopped by anybody to enter the PS on 16.06.2020. (vol. On account of Covid-19, I was asked to stay outside the Police Station and not to accompany the complainant).........
.......When I was stopped by the police official from entering the police station, the complainant was standing with me. Vol. The police official asked the complainant to go inside and I was asked to stay outside."
6.39 The relevant portion of deposition of PW8 in this regard read as under:-
"Thereafter, the complainant came out of the police station and came towards CBI vehicle. DVR was taken back from him and switched off.
Thereafter the complainant was asked to narrate the proceedings that had happened inside the police station. He informed that after entering gate of the police station Vijay Vihar he was informed by Ct. Samay Singh that SHO was busy with someone else and he would have to wait as it would take some time. Accordingly we waited at the gate of PS and after some time a police person namely Sh. Badri Prasad Yadav came and took him to SHO. On going inside the room of the SHO, the complainant requested the SHO to reduce the bribe amount of Rs. 5 Lac. Contrary to his request SHO increased the bribe CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 49/176 amount to Rs.6 Lac and directed the complainant to hand over Rs. 2 Lac to Sh. Badri Prasad Yadav on the next day i.e. 17.06.2020 and pay the remaining amount of Rs.4 Lac within 10 days. Thereafter the complainant came out of the room of the SHO."
6.40 The above deposition of PW8 and PW12 are not mere hearsay as was argued by Ld. Defence Counsels and in fact the said statements are admissible in evidence and highly relevant in view of Section 6 of the Indian Evidence Act 1872 which is reproduced hereunder:-
"6. Relevancy of facts forming part of same transaction. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the [Government of India] [Substituted by A.O. 1950, for "Queen".]by taking part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.
(d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact."
6.41 The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is "so connected" with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, an exception to the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 50/176 general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter so as to rule out any time for concoction. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae.
6.42 The testimony of the Verifying Officer (PW8) and independent witness Jaideep Mathur (PW12) that the complainant immediately after coming out of the police station, having just met accused no. 1, told them about the demand raised by accused no. 1 is admissible in evidence in terms of Section 6 of the Indian Evidence Act 1872 and further proves that the demand was indeed raised by accused no. 1. The spontaneity with which the complainant informed these two witnesses about the demand, absence of time interval between the meeting and the information/statement regarding the demand renders their statements admissible against the accused persons even though they personally did not witness the demand, as was otherwise vehemently argued by Ld. Defence counsels.
6.43 No doubt it is the admitted position that PW8 and PW12 could not personally hear/witness the demand at the police station, however, why they could not do so stands duly CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 51/176 explained on record. As far as the Verifying Officer is concerned, for obvious reasons he could not have accompanied the complainant to the police station. Doing so would have not only raised suspicion in the accused's mind i.e. why the complainant is coming with two other individuals (had the independent witness been also allowed to enter the police station) but there might have been a possibility of the Verifying Officer being identified by accused no. 1. Accused no. 1 being Inspector/SHO and Verifying Officer also being a Sub Inspector, though working with CBI, the fact that they might have known/seen each other or crossed path during their official engagements cannot be ruled out.
6.44 As far as the independent witness Sh. Jaideep Mathur (PW12) is concerned, no doubt he could not hear the conversation which took place between the complainant & accused no. 1 and though the defence vehemently argued, relying upon Sudesh Kaushik Vs. CBI Crl. A. 629/2009 dated 08.12.2022, State of Maharashtra Vs. Dnyaneshwar Rao 2009 (4) RCR (Cr) 217 SC and K. Santhamma Vs. State (2020) 4 SCC 574 that the purpose of joining an independent witness in the verification being not fulfilled, the said lacuna/loophole in the prosecution case is sufficient to create doubt upon the alleged demand as well as transcript/voice recording more so when the complainant has failed to identify his voice, however, I find no merits in these arguments. Why PW12 Sh. Jaideep Mathur could not enter the police station was duly explained by him as well as PW8 when they stated that the same was on account of Covid-19 Pandemic. Furthermore the transcript Ex. PW10/B leaves no CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 52/176 doubt that it was on account of Covid-19 pandemic guidelines, directions to maintain social distancing, avoid overcrowding etc. that PW12 was not allowed to enter the police station. The relevant image of transcript in this regard is reproduced hereunder:-
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 53/176 6.45 The relevant portion of the testimony of PW12 in this regard read as under:-
"I alongwith the complainant were directed to go to the police station. As there was covid time, I was waiting outside police station Vijay Vihar, but the complainant was allowed to go inside the police station."
6.46 The relevant portion of examination in chief and the cross examination of PW8 in this regard read as under:-
Examination in chief "The complainant entered the police station but the independent witness could not enter as general public was not allowed to enter the police station owing to Covid-19 pandemic guidelines. As the complainant was seen standing inside the boundary wall of the police station for a long time, so the independent witness returned back towards CBI vehicle."
Cross examination "The purpose of taking independent witness is to observe the meeting of the complainant with the suspect officer and to overhear the likely conversation between them, if possible. It is correct that in the instant case the independent witness Jaideep Mathur could not either observe the meeting of the complainant nor could over hear the conversation between the complainant and accused. (vol. On account of outbreak of pandemic during that time, there was necessary protocol instructions not to stay close to each other and to maintain the distance and for this reason the people were allowed to visit the PS one by one). I have not mentioned about voluntary portion in the verification memo. The complainant had to wait for half an hour before he was allowed to enter the PS."
6.47 As far as reliance upon Sudesh Kaushik (supra) is concerned, the facts of the said case are entirely different from the case at hand. Here the independent witness (PW12) has duly explained as to why he could not hear the conversation. It is not as if he did not go with the complainant at the time when the complainant went to meet accused no. 1 and rather he had gone to the police station with the complainant but was stopped from CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 54/176 entering the police station which is evident from the detailed discussion above. The fact that independent witness had gone along with complainant was duly proved by the Verifying Officer. The defence on its part could not bring any material on record to prove that the independent witness was not present with the CBI team or in the vicinity of PS Vijay Vihar or that he was present somewhere else. Once he was prevented from entering the police station there was no occasion for him to hear the conversation which took place between the complainant and accused no. 1. But he cannot be blamed for not being allowed to enter the police station. Furthermore the demand stands duly proved from the recorded conversation on record which has been discussed in detail in the later part of the judgment. For similar reasoning reliance upon State of Maharashtra Vs. Dnyaneshwar Rao (supra) and K. Shanthamma (supra) does not come to the rescue of the accused persons.
6.48 There is no requirement that the demand should have been overheard by anyone and it will be also worthwhile to note the following observations made in State Of U.P vs Zakaullah AIR 1998 SUPREME COURT 1474:-
"The two remaining reasons, i.e., nobody overheard the demand made by the respondent for bribe and that the amount was found not in the right hand pocket but only in the left pocket, are flippant grounds which should never have merited consideration. xxxxxxxx (Emphasis supplied). Without any doubt this is one of such case, where the shadow witness- P.W.4 has turned hostile and has not supported the case of the prosecution but merely because a witness has been gained over or has become hostile for some other reason; the trustworthy and reliable testimony of other witnesses cannot be thrown to woods nor the same will be fatal for the case of the prosecution."
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 55/176 6.49 Ld. Defence counsels vehemently argued that PW8 and for that matter the other CBI officials being interested witnesses had reasons to depose falsely against the accused persons and their testimony should be discarded. However, I find no merits in their arguments. In the case at hand I find no reasons to disbelieve the testimony of the official witnesses including PW8. They have no axe to grind with the accused, are independent witnesses and there is no law that solely on account of their official capacity, their evidence has to be given less weightage or viewed with suspicion. In fact conviction can be based upon the sole testimony of the police official who arranged the trap. In State Of U.P vs Zakaullah (supra) it has been further held as under:-
"......The most important evidence is that of PW-4 - Harendra Singh Sirohi, the Superintendent of Police who arranged the trap. We must mind the fact that he had no interest against the respondent. But the verve shown by him to bring his trap to a success is no ground to think that he had any animosity against the delinquent officer. He made arrangements to smear the phenolphtalein powder on the currency notes in order to satisfy himself that the public servant had in fact received the bribe and not that currency notes were just thrust into the pocket of an unwilling officer. Such a test in conducted for his conscientious satisfaction that he was proceeding against a real bribe taker and that an officer with integrity is not harassed unnecessarily. The evidence of such a witness as PW4 can be acted on even without the help of any corroboration (vide Prakash Chand vs. State (Delhi Administration): 1979 (2) SCR 330; Hazari Lal vs. Delhi Administration: 1980 (2) SCR 1053)."
6.50 The above judgment also takes care of the defence arguments that the demand was not overheard by the independent witness. In Hazari Lal Vs. Delhi Administration 1980 (2) SCR 1053 the peculiar facts were that out of the two panch witnesses one could not be examined as he became mentally deranged before the trial and other panch witness turned hostile. The CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 56/176 Hon'ble Apex Court while upholding the conviction held as under:-
"We are not prepared to accept the submission of Shri Frank Anthony that the fact that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance."
6.51 Coming back to the verification proceedings, when the CBI team along with the complainant and the independent witness reached near PS Vijay Vihar, the DVR was kept in switch on mode in the complainant's shirt who along with independent witness went to PS Vijay Vihar but the independent witness, as discussed above, was not allowed to enter the police station owing to Covid-19 pandemic guidelines. The fact that the blank memory card Q1, in the DVR, was handed over to the complainant when he went to the police station stands duly proved by PW12 when he stated "While going inside the police station, the DVR having new blank memory card was handed over to the complainant. Blankness of the memory card was checked in the CBI office and to check the same, my introductory voice was also recorded in the memory card in the CBI office." In the police station the complainant met the SHO/accused no. 1 and the conversation they had was duly recorded in the memory card Q1 and its transcript is on record as Ex. PW10/B. I have CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 57/176 carefully heard the recorded conversation and gone through the transcript and they leave no doubt that the demand was raised by accused no. 1 and that the amount of Rs. 2 lacs was accepted by accused no. 2 pursuant to the said demand only, in conspiracy with accused no. 1. Accused no. 1 had specifically directed the complainant to handover the sum of Rs. 2 lacs to accused no. 2 as is evident from Q1 and Ex. PW10/B. 6.52 The recorded conversation in Q1 part of Ex. P1 (colly) and its transcript Ex. PW10/B further lends credence to the complaint Ex. PW8/A1. In the complaint, as discussed above, complainant had categorically stated that he had purchased a plot around 6/7 months back i.e. somewhere around December 2019/January 2020 and it was that time that he was raising construction of boundary wall which was interfered with by certain individuals. In the recorded conversation Q1 part of Ex. P1 (colly) and its transcript Ex. PW10/B the SHO/accused no. 1 is enormously agitated with the fact that the complainant had taken so long to make the payment though he had promised to make the payment on earlier occasion. He was annoyed with the fact that 6 months have lapsed but the payment has not been made to him. The recorded conversation/transcript especially Pages 6, 7 and 8 squarely proves that the demanded money was in respect of land/plot and leaves no doubt that the complaint Ex. PW8/A1 was a genuine one and the subsequent turning hostile of the complainant was for the reasons as discussed above, so as to save the accused persons. The conversation/transcript further reveals that the SHO/accused no. 1 was indulging in illegal activities /malpractices and was making money way beyond his CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 58/176 salary. He is talking about his money/amount of Rs. 1.5 crore being stuck somewhere for the last 4-5 years and also about his 50 lacs which he had taken during the covid times. The transcript speaks volume about the conduct of accused no. 1 and in fact it shook the conscience of this court. The images of the transcript Ex. PW10/B are reproduced hereunder and relevant portions have been highlighted/earmarked in boxes:-
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 59/176 CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 60/176 CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 61/176 CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 62/176 CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 63/176 6.53 After meeting accused no. 1, the complainant came out of the police station, the DVR was taken from him and was switched off. On being asked by CBI team/Verifying Officer (PW8) the complainant narrated to them as to what had transpired i.e. the demand raised by accused no. 1, that he was directed to handover a sum of Rs. 2 lacs to accused no. 2 on the next day i.e. 17.06.2020 and pay the remaining amount of Rs. 4 lacs within 10 days, which is also evident from the above transcript Ex. PW10/B and Q1. Thereafter the CBI team reached back the office and the recording was heard as well as the investigation copy of the same was prepared through write blocker in the laptop. The memory card i.e. Ex. P1(colly) (Q-1) CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 64/176 which contained the recording was placed in its original plastic case which was signed by the complainant, the independent witness (PW12) and the Verifying Officer (PW8) whereafter it was placed in the original paper cover which was again signed by above three individuals and thereafter it was further placed in a brown envelope and sealed with CBI brass seal. The seal after use was handed over to Sh. Jaideep Mathur (PW12), against acknowledgment, for safe custody with direction to produce the same on the next day. The entire proceedings were recorded in the verification memo PW8/A2 which bears the signature of PW8, Insp. N.C. Nawal, complainant and the independent witness. Though the complainant, as discussed above, denied the verification proceedings and the sealing of the memory card Q1 as well as handing over of the seal to PW12, however, why he did so has already been dealt with and fact remains that he made false statements just to benefit the accused persons.
6.54 Ld. Defence counsels while relying upon Jahan Singh Vs. CBI 2020 (2) RCR (Cr) 794 Delhi vehemently argued that the transcript Ex. PW10/B and for that matter Ex. PW10/C could not be legally proved as IO did not obtain opinion about their genuineness from CFSL, however, I find no merits in the said arguments. As against the facts of the said case, in the case at hand the CBI official who had prepared the transcript was duly examined i.e. PW15 IO Insp. Ravinder Bharti. The transcript bears the signatures of PW15 and the independent witnesses i.e. PW11 and PW12 apart from the complainant. The said transcript was prepared by the IO on the basis the investigation copy of the recordings available in memory CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 65/176 card/Ex. P1. PW8 had duly proved that he had prepared the investigation copy of Ex. P1 through write blocker on the official laptop of CBI. It was from this investigation copy/recording that the transcripts were prepared by the IO. Though this transcript was sent to CFSL, however, the opinion was sought only qua the recording in the memory card and the sample voice of the accused persons i.e. whether the voice in the recording is of the accused persons or not. There was no necessity at all to seek any opinion on the transcript. The transcript was merely a written reproduction of the recording. During the course of arguments this court heard the original recording/Ex. P1 and there is absolutely no discrepancy in the two. This also takes care of the defence arguments that how could the IO prepare the transcript on 29.07.2020 though Ex. P1/memory card was sealed on 16.06.2020 itself. As discussed above, the transcript was prepared from the investigation copy and not from Q1 which is part of Ex. P1 (colly).
6.55 I have considered the judgments relied upon by the Ld. Defence Counsels i.e. Ram Singh and Others v. Col. Ram Singh AIR 1986 Supreme Court 3 and Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143 and I find none of the conditions being violated/frustrated in the present matter which renders the tape recorded conversation/voice inadmissible. It has been discussed in detail in the later part of this judgment that case property including the recorded conversations in Q1 and Q2 remained in safe custody and there was no tampering with the same. There is no doubt whatsoever that the conversation as recorded in Q1 and Q2 did take place between the complainant, CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 66/176 Constable Samay Singh and the accused persons as the same stands proved through the testimony of independent witnesses i.e. PW11 & PW12 apart from that of PW8 and PW13 who had heard the conversation and which fact stands duly corroborated by the CDR. The fact that the voice is of the accused persons stands duly proved by CFSL result Ex. PW6/B. 6.56 No doubt the complainant denied that the transcripts Ex. PW10/B and Ex. PW10/C were prepared in his presence and also did not recognize his voice or that of accused persons or of the independent witnesses in Q1 & Q2, however, why he did so has been discussed in detail above. There is no doubt whatsoever that he was deposing falsely at the behest of accused persons and thus deliberately did not recognize the voices. It stands established through the testimony of the Verifying Officer and independent witnesses PW11 and PW12 as well as the FSL result Ex. PW6/B, which has also been discussed in detail in the later part of this judgment, that the recorded voice/conversation i.e. Ex. Q1 & Q2 is indeed of the accused persons, the complainant and Constable Samay Singh. The fact that the complainant went to meet accused no. 1 at the police station on 16.06.2020 stands duly proved on record through the testimony of PW8 and PW12. The fact that the demand raised by accused no. 1 was duly recorded in Q1 also stands proved from the testimony of PW8 and PW12 who were immediately, almost simultaneously informed about the demand by the complainant when he came out of the police station. Mere denial by accused no. 1 that the voice in Q1 is not his does not help him once the CFSL result Ex. PW6/B squarely proves that the voice in the recorded CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 67/176 conversation Ex. Q1 is of accused no. 1. The detailed CFSL report has been discussed in the later part of this judgment. Most importantly, it was nowhere pleaded by accused no. 1 that at the time, date and place when the said conversation was recorded, as is the prosecution case, he was not present at the police station or that he was present somewhere else. All the prosecution documents bear the signatures of the complainant which were also verified by the independent witnesses and the official witnesses which itself proves the fact that the complainant had indeed taken part in the verification as well as the trap proceedings but later on turned hostile.
6.57 There was no necessity for the prosecution to examine anybody from PS Vijay Vihar, as was otherwise argued by Ld. Defence Counsels, to identify the voice of accused persons as from the material available on record i.e. the ocular testimony of PW8, PW10 and PW12 the factum of meeting between the complainant and accused no. 1 on 16.06.2020 stands duly established which is further corroborated by Ex. PW5/A as well as the CFSL result Ex. PW6/B. I have absolutely no doubt that the conversation recorded in Q1 is between the complainant and accused no. 1 and the acceptance by accused no. 2 on the next day further corroborates the fact that voice in Q1 is of accused no. 1 and the complainant. But for the demand, recorded conversation there was no occasion for accused no. 2 to be present at the place of trap. Similarly, the fact that calls were exchanged between the complainant and accused no. 2 on 17.06.2020 stands duly established through the testimony of PW8, PW11, PW12, PW13 etc. and is further corroborated by CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 68/176 Ex. PW3/A. The voice in Q2 is of accused no. 2 as is also settled by Ex. PW6/B. Also upon hearing the conversation I have absolutely no doubt that the voices contained in Q1 and Q2 are of the accused persons.
6.58 Same is the position with Q2 which contained the recorded conversation between complainant and accused no. 2 just before the trap was successfully laid on 17.06.2020. The CDRs Ex. PW3/A to Ex. PW5/A as well as the testimony of PW8 & PW11 to PW13 proves that the conversation did take place between complainant and accused no. 2 and also between accused no. 2 and DW1. The CFSL result qua Q2 has been discussed in detail at the time of discussing how the case of acceptance has been successfully made out against the accused persons.
6.59 No doubt PW12 Sh. Jaideep Mathur admitted that at the time of verification proceedings he was not conversant with the voice of Constable Samay Singh and he had merely heard the complainant talking to Samay Singh over the phone which was on speaker mode and he did not know whether the person on the other side was indeed Constable Samay Singh or not, however, that does not affect the prosecution case in any manner. PW12 not familiar with Constable Samay Singh or his voice there was no occasion for him to recognize him or his voice at that time. But from the call record Ex. PW5/A it stands duly established that the said call during the verification proceedings was made by the complainant to Constable Samay Singh only.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 69/176 6.60 Both the independent witnesses duly identified the case properties as well as their respective introductory voices, that of each other and the accused persons in Q1 & Q2. When file no. 200616-1825 in Ex. P1 (colly) (Q1) was played PW12 recognized the voice of the complainant as well as that of constable Samay Singh. No doubt he stated that he only identified the voice of Constable Samay Singh as he was told that complainant had called him and PW12 had also admitted that he was not aware about the identity of the person on the other side of the telephonic conversation made during the trap or verification proceedings, however, the fact that the complainant had called Constable Samay Singh and for that matter accused no. 2 stands duly established through CDRs Ex. PW5/A & Ex. PW3/A, as has been discussed above in detail. The voice therefore was definitely of Constable Samay Singh in Q1 and of accused no. 2 in Q2. He similarly identified the voice of the complainant and Constable Samay Singh in file no. 200616- 1827. Though he was not sure about the voice of the complainant in file no. 200616-1835 and failed to identify the voice of other speakers in the conversation but thats for the reason that he was not present with the complainant when the said conversation was recorded. However it has been discussed above in detail that the said conversation took place between the complainant and accused no. 1 which fact was also disclosed to PW12 and PW8 by the complainant after immediately coming out of the police station.
6.61 Similarly, PW12 identified the voice of the complainant in file no. 200617-1849 to be that of the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 70/176 complainant and accused no. 2. No doubt he stated that he only identified the voice of accused no. 2 as he was told that complainant had called him, however, the fact that the complainant had called accused no. 2 stands duly corroborated through CDRs Ex. PW3/A, as has been discussed above in detail. The voice therefore was definitely of accused no. 2. PW12 also recognized the voice in files no. 200617-1911, 200617-1921 and 200617-1956. Most importantly he identified the sample voices of accused no. 1 and 2 in memory card S1 i.e. Ex. P3 (colly) and S2 i.e. Ex. P4 (colly) respectively. He had also identified the sample voice of Constable Jitender in S3 i.e. Ex. P5 (colly). The CFSL result Ex. PW6/B which has been discussed in the later part of this judgment leaves no doubt that the voice in Q1 & Q2 as well as S1 & S2 are of accused no. 1 and 2 respectively.
6.62 Similarly, PW11 identified the voice of complainant and accused no. 2 in file no. 200617-1849, file no. 200617-1911 and file no. 200617-1956 in Q2. No doubt he stated that he only identified the voice of accused no. 2 as he was told that complainant had called him, however, the fact that the complainant had called accused no. 2 stands duly corroborated through CDRs Ex. PW3/A, as has been discussed above in detail. The voice therefore was definitely of accused no. 2. PW11 had also duly identified the voice of DW1 Constable Jitender in file no. 200617-1535. Apart from PW11 and PW12 the voices of the complainant, accused persons and Constable Samay Singh were duly identified in Q1 & Q2 by PW8 when the recordings were played in the court.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 71/176 6.63 As far as the accuracy is concerned, it stands proved on record that immediately after the conversations the DVR was switched off and the memory cards were sealed and taken into possession by Ex. PW8/A2 to Ex PW8/A4, which seal/packet remained untampered with till the examination by the expert as the seals used in the proceedings were handed over to PW11 and PW12 respectively for safe custody as was duly proved by PW11 and PW12 and is also evident from Ex. PW8/A2 to Ex. PW8/A4. In fact Ram Singh (supra) makes it clear that the recorded cassette/memory card has to be in safe custody whether in a safe or in official custody. Therefore merely because Q1 remained with PW8 and was not deposited in the malkhana immediately on 16.06.2020 will not make any difference. What is required is to ensure safe custody of the case property and same stands duly proved on record in the present case. Furthermore I have heard the conversation myself and there is no disturbance or distortion and the conversation can be clearly, explicitly made out/heard. The defence on its part could not prove any tampering or manipulation or editing or doctoring or erasure with/in the recorded conversation. It is well settled law as held by the Hon'ble Apex Court in Mahabir Prasad Verma Vs. Dr. Surinder Kaur 1982 (2) SCC 258 that the recorded conversation can be relied upon as a corroborative evidence and in the case at hand the recorded conversation duly corroborates the prosecution case which is otherwise consistent on material aspects.
6.64 No doubt PW8 had admitted that the DVR & Q1 were not deposited with the malkhana and that they were handed over to the Trap Laying Officer (PW13) on the next day and that CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 72/176 before being handed over to PW13, Q1 remained in his possession and there is also absolutely no doubt that PW8 should not have retained the case property with him, rather should have immediately upon its seizure deposited the same in the malkhana, which was the basic minimum requirement, however, his said lapses cannot be made the basis for rejecting the prosecution case. As discussed above, what is required is safe custody and to rule out any tampering in the case property. In the case at hand I find no tampering or fabrication with the case property. The moment the seals used in seizure of the case property were handed over to the independent witnesses and the FSL result ruled out tampering or fabrication with the seal and the case property, I find no reasons to doubt the authenticity of Q1 and Q2 and for that matter the other case properties. The relevant portion of deposition of PW11 and PW12, which was duly corroborated by PW8 and PW13, in this regard is reproduced hereunder:-
PW11 "The official seal of the CBI used in the trap proceedings was handed over to me for safe custody. The DVR and the memory card containing the voice recordings of the trap proceedings were kept in different envelopes and same were sealed by CBI and were got signed by me and other independent witness Jai Deep. The voice sample recordings of the independent witnesses and accused persons were also kept in different envelopes and same were sealed by CBI and were got signed by me and other independent witness Jai Deep."
PW12 "The original memory card which was used for the purpose of recording of conversation was kept in an envelope and the same was sealed and my signature were taken on the said envelope and seal was handed over to me. I was asked to bring the said seal on the next day."
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 73/176 6.65 Ld. Defence counsels while pointing towards forwarding letter Ex. PW6/J (in fact Ex. PW6/DJ) dated 27.07.2020, vide which exhibits and the transcript were sent to CFSL, as well as the deposition of PW15 vehemently argued that if the transcript was prepared on 29.07.2020 then how come the copy of the transcripts were sent/enclosed along with the forwarding letter dated 27.07.2020 bearing the signatures of SP dated 28.07.2020. It was argued that when the transcripts were not prepared before 29.07.2020 how could the same be sent/enclosed with the forwarding letter Ex. PW6/J (Ex.
PW6/DJ). As far as this argument is concerned, suffice would be to say that though the letter is dated 27.07.2020, it was signed by SP, CBI on 28.07.2020. The letter was sent and received at the CFSL, CBI, New Delhi on 29.07.2020 as also stands proved from the deposition of PW6. On 29.07.2020 the transcript was already prepared as per the case of the prosecution and accordingly, the same was sent to CFSL, as was also proved by PW15. As regards how the SP, CBI mentioned about the transcript in his letter dated 28.07.2020 is concerned, may be when the forwarding letter was being typed/prepared the SP confirmed from the IO as regards the status of the transcript and the IO must have informed the SP that it will be prepared by next day i.e. 29.07.2020 and accordingly he may mention the same in Ex. PW6/J. At most it is a slight inconsistency in the prosecution case but same has not prejudiced the accused persons in any manner nor does it cast any doubt upon the prosecution case. These are minor/trifling contradictions, inconsistencies which are more of technical nature have no adverse bearing/effect on the substantive evidence available on record.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 74/176 6.66 Though Ld. Defence counsels also argued that the specific conversation/recording/transcript of the independent witness PW12 being stopped from entering the police station is not available either in Ex. P1 or Q1 and the story that he was not allowed to enter the police station due to Covid-19 pandemic is absolutely false and merely an afterthought, however, I do not agree with the Ld. Defence Counsels. The transcript Q1 i.e. Ex. PW10/B (colly) and the recording Ex. P1, as discussed above, leaves no doubt the independent witness was indeed stopped from entering the police station. Though in not so many words but the transcript and the recording leaves no doubt that it was on account of Covid-19 pandemic guidelines that PW12 could not enter the police station as was also explained by PW8 and PW12.
6.67 Ld. Defence Counsels also argued that the transcript of the recording reproduced in the verification memo Ex. PW8/A2 is different from transcript Q1 which itself points towards the falsity of the prosecution case and also that the recording as well as the transcript is a forged and doctored one, however, I find no merits in their arguments. I have minutely considered both Ex. PW8/A2 as well as Ex. PW10/B / Q1 and heard the recording in Ex. P1. I find no material discrepancy or wrong reproduction of the recorded conversation in the verification memo. What was reproduced in the verification memo was merely the gist of the entire recording. Only the relevant portion was reproduced and not the entire recorded conversation. The transcript was prepared on 29.07.2020 and not CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 75/176 on 16.06.2020. PW8 the Verifying Officer had prepared the investigation copy of Ex. P1/the recorded conversation and after hearing the same he had merely reproduced the gist in the verification memo. The exact transcript of the recording was not before him at that time as the transcript was only prepared on 29.07.2020 by PW15 Insp. Ravinder Bharti. Coming back to the alleged discrepancies in Ex. PW10/B and Ex. PW8/A2, as pointed out by Ld. Defence counsels, in the recorded conversation accused no. 1 can be clearly heard telling the complainant to give the amount to Badri/accused no. 2. In the relevant conversation/transcript, which has been reproduced above in detail, accused no. 1 is clearly asking the complainant to handover the money to Badri and the remaining by 30th. Merely because the words used in the transcripts Ex. PW10/B are "Badri .......iss ko de dena.......Kal milega yeh" whereas in the verification memo Ex. PW8/A2 the words reproduced are "Nhi Badri ko de dena. Badri, iss se kal le lana" is absolutely insignificant for the simple reason that the demand stands proved and the amount was to be handed over to Badri/accused no. 2 as per the directions of accused no. 1. The purpose of reproducing only relevant extracts of the recorded conversation/transcript in the verification memo was to inform the seniors that the complaint is a genuine one and that FIR ought to be registered for carrying out further investigation. The relevant portion of the verification memo Ex. PW8/A2 and the transcript Ex. PW10/B are reproduced hereunder:-
Ex. PW8/A2 "Suspect Officer: 10 din me de dega?
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 76/176 Complainant: 4 de dunga 10 din me.
Suspect Officer: nhi 6 de dede. Thik h?
...........................
Complainant: nhi mai ab kar deta hu. Do ab kar deta hu do 10 din me kr dunga.
...............
Complainant: Thik h sir mai kal do kar dunga. Samay ko de du?
Suspect Officer: Nhi Badri ko de dena. Badri, isse kal le lena. Suspect Officer: baki 30 tak kar de."
Ex. PW10/B 6.68 It was also one of the argument of Ld. Defence counsels that as per the prosecution, Q1 i.e. Ex. PW10/B was containing face to face conversation between the complainant and accused no. 1, however, the CFSL expert PW6 Dr. Subrat Kumar Chaudhary has described the same as telephonic CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 77/176 conversation. Suffice would be to say that not much emphasis should be laid on this solitary statement of PW6 whose overall deposition and report Ex. PW6/B is absolutely consistent with the prosecution story. The defence despite detailed cross-
examination could not impeach the credit of the witness or his expertise nor any doubt could be created upon his report. It is also to be noted that some of the recorded conversation in Q1 and Q2 were telephonic.
6.69 It was also one of the arguments that the CFSL report Ex. PW6/B is not admissible in evidence because the CFSL was not notified u/s 79-A of the Information Technology Act 2000 (IT Act in short) by the Central Government to act as an expert of electronic evidence which fact was admitted by PW6. It was argued that a bare reading of section 79-A of the IT Act and section 45A of the Indian Evidence Act 1872 reveals that such gazette notification is required for examination of electronic evidence or to act as an expert of electronic evidence. However I find no merits in their arguments. As far as Section 79-A of the IT Act is concerned, same is reproduced hereunder:-
"[79A Central Government to notify Examiner of Electronic Evidence. -The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence. Explanation. -For the purposes of this section, "electronic form evidence" means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.]"
6.70 The use of word 'may' reflects that it is not a mandatory provision and thus it is not necessary that every CFSL CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 78/176 lab should be certified U/s 79-A I.T. Act.
6.71 A hyper-technical approach should not be adopted while interpreting the report of an expert unless any prejudice, on account of non observance of certain procedural, technical aspects, has been caused to the accused persons otherwise it will defeat the ends of justice.
6.72 It was also argued by Ld. Defence counsels that PW6 was not qualified to act as an expert of electronic evidence as he did not possess any qualification in the field of linguistic and phonetics though his report Ex. PW6/B talks about acoustic, phonetic and linguistic examination of voices. It was argued that the training does not impart qualification as was admitted by PW6. It was also argued that there is no evidence that PW6 was ever designated as Assistant Chemical Examiner to Government of India to depose in the court as per section 293 of the Code of Criminal Procedure 1973 (Cr.P.C. in short). However the said arguments are also meritless. The report of an expert has corroborative value and is admissible under Section 293 of Cr.P.C. Even examination of an expert is not mandatory and the report is perse admissible u/s 293 of Cr.P.C. As far as qualification of PW6 is concerned i.e. whether he was qualified to examine and give report as regards the voice sample/exhibits or not, I am of the considered opinion that PW6 was more than qualified to do so. His qualification and experience was established on record from the following statement by him during his examination in chief as well as report Ex. PW6/B. CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 79/176 Examination in chief I have joined CFSL, New Delhi on 04.10.2010 as Senior Scientific Officer, Grade-II (Physics) and subsequently promoted to Senior Scientific Officer, Grade-I (Physics) w.e.f. 23.11.2020. I have examined more than 575 cases till date and deposed in more than 160 cases in different Courts. I was awarded National Level Fellowship from Bureau of Police Research and Development, Ministry of Home Affairs, Government of India in the year 2002 for carrying out research in the area of Forensic Physical Science leading to Ph.D degree. I have undergone trainings in the field of forensic examination of audio and video.
Ex. PW6/B "I have undergone training in the field of Forensic Speaker Identification & Tape Authentication and examined more than 540 cases. I have published four research papers in Journals and presented five research papers in All India Forensic Science Conferences and in other conferences."
6.73 At the time when he examined the exhibits/voice samples he already had experience of almost 10 years and during his association with CFSL he had examined more than 575 cases and testified in more than 160 matters. This speaks volume about his experience, expertise and his detailed report leaves no doubt that he was having vast knowledge about the subject and was in a position to give an expert opinion on the same. Merely because he did not possess any degree in linguistic and phonetic field from any recognize institution does not shake his credibility as an expert witness considering the enormous experience he possessed. Moreover though he did not possess a degree but he had taken field training in linguistic and phonetic.
6.74 As far as the examination of the exhibits/voice samples is concerned he deposed as under:-
Auditory, spectrographic and waveform analysis of the above- said questioned and specimen voice recordings were carried out CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 80/176 by me. Details of the examination procedure, reasoning and results are mentioned in my report bearing number CFSL- 2020/P-363 dated 01.12.2020 which is now Ex.PW6/B. This report is running into 16 pages.
6.75 It is a detailed report and I have carefully considered the same. During his cross-examination he produced the auditory worksheets of the accused persons i.e. S1 and S2 as well as that of Constable Jitender as Ex. PW6/DD to DF and had also produced the copies of the waveform chart, spectrograph and transcriptions i.e. Ex. PW6/DA to Ex. PW6/DC. Merely because he did not file the same earlier with his report Ex.
PW6/B is of no consequence. Fact remains he had filed a detailed report and when asked by the Ld. Defence counsel to produce the documents he immediately produced the same. In fact he was carrying the same on the date when he appeared for his examination in chief. He was cross-examined at length, the same is running in more than 40 pages, however, the defence could not bring anything even remotely concrete to create doubt upon his report. A careful look at the statement made by the witness during his cross-examination leaves absolutely no doubt that he was a qualified expert to give his opinion on the exhibits/samples. The Ld. Defence counsels could not point out any particular portion of the testimony/cross examination of PW6 which created any doubt whatsoever upon the competence, expertise of this witness. Reliance upon State vs. Sukhdeo Singh 1993 (1) CCC 557 SC does not come to the aid, rescue of the accused persons as the said case law is based upon different facts altogether. The said case pertained to the evidence of a handwriting expert and the witness examined in that matter to prove the handwriting, give expert opinion failed to identify the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 81/176 accused or the compared/ relevant entries or that same were made in his presence. As far as reliance upon Mahavir Prasad Vs. Dr. Suman Rai AIR 1982 SC 1043 is concerned, it is undoubtedly a settled legal position that tape recorded conversations can only be relied upon as corroborative evidence. In the case at hand the tape recorded conversation in Q1 or for that matter in Q2 duly corroborates the other evidence on record which includes the testimony of PW8, PW11, PW12 to PW15. The acceptance/recovery of the tainted money is the most crucial piece of evidence corroborated by Q2.
6.76 It was also argued that there is no evidence that PW6 was ever designated as Assistant Chemical Examiner, Government of India, however, the said argument is bereft of merits. The fact that he was working as Senior Scientific Officer Grade I (Physics) CFSL could not be disputed by the defence. No doubt when he examined exhibits/samples i.e. on 29.07.2020 he was Senior Scientific Officer Grade II but he still qualifies to be an expert as per section 293 Cr.P.C. irrespective of the fact that the said particular designation does not find mention in clause (d) of section 293 Cr.P.C. In fact as per report Ex. PW6/B the designation of PW6 is SR. SCIENTIFIC OFFICER GR-1-
CUM-ASST. CHEMICAL EXAMINER TO THE GOVERNMENT OF INDIA CFSL CBI NEW DELHI. 6.77 Merely because CFSL is in the administrative
control of CBI, same is not sufficient to cast aspersions on the report Ex. PW6/B. To create genuine doubt upon the report, the defence had to prove by way of positive evidence that the report CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 82/176 was indeed a manipulated, fabricated one.
6.78 It was also one of the defence arguments that forwarding letter Ex. PW6/DJ and Ex. PW6/DK do not talk about receiving of sample seal with the exhibits, however, I find no merits in the said arguments. Ex. PW6/DJ and Ex. PW6/DK are mere acknowledgements on Ex. PW15/A and Ex. PW15/B respectively itself and the fact that the specimen of the sample seal used for sealing the exhibits is duly mentioned in these forwarding letters Ex PW15/A and Ex. PW15/B sent to Director, CFSL when the exhibits were sent for analysis. There was no need for giving any separate acknowledgement for receipt of the specimen/sample seals. Most of the attack on the prosecution case, by the defence, is on technical and procedural aspect relating to investigation, exhibits etc. however, defence could not even remotely create doubt on the substantive evidence which is more than sufficient to bring home the guilt against the accused persons. Defence completely failed to prove any fabrication, tampering with the case property/exhibits.
6.79 Though while relying upon Ajay Gupta Vs. CBI Crl. A469/2003 dated 28.10.2022 it was also argued that Ex. PW6/B is the probable report only and therefore it has no evidentiary value, however, I find no merits in the said arguments. Though the words used by PW6 in the report Ex. PW6/B are "hence, the voices marked exhibit Q-1 (5) (S) is the probable voice of the person {Sh. Surender Singh Chahal} whose specimen voice is marked S-1 (4) (S)" and similar words have been used qua accused no. 2 and Constable Jitender, CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 83/176 however, the use of word probable cannot be read in isolation. PW6 before arriving at the said opinion had conducted auditory and spectrographic examination of the questioned as well as the specimen voice of accused no. 1 and 2 and the result of his examination are reproduced hereunder:-
"8. RESULT OF EXAMINATION Regarding Query No.1
(i) The auditory examination of questioned voice marked exhibit Q-1(5) (S) and specimen voice of Sh. Surender Singh Chahal marked exhibit S -1 (4) (S) reveal that questioned voice marked exhibit Q-1(5) (S) is similar to the specimen voice marked exhibit S-1(4) (S) in respect of their linguistic and phonetic features.
(ii) The voice spectrographic examination of questioned voice samples marked exhibits Q-1(5) (s1) to Q-1(5) (s14) and specimen voice samples marked exhibits S-1(4) ( s1) to S-1(4) (s14) reveal that the questioned voice samples marked exhibits Q - 1 (5) (s1) to Q-1(5) (s14) are similar to specimen voice samples marked exhibits S-1(4) (s1) to S-1(4) (s14) in respect of their formant frequencies distribution, intonation pattern, no. of formants and other general visual features in spectrograms."
6.80 Same is the position qua the result of examination of the exhibits of accused no. 2. The detailed report leaves no doubt that the questioned voice in exhibit Q1 is/was similar to the specimen voice in S-1 of accused no. 1 and same is the position qua the questioned voice of accused no. 2 in Q-1 and Q- 2 viz-a-viz the specimen voice in S-2 as well as Constable Jitender whose questioned voice as recorded in the inbuilt memory of mobile phone M-1 and M-2 was found similar to the specimen voice S-3. All the three queries regarding the accused persons and Constable Jitender as is evident from Ex. PW6/B were answered in positive.
6.81 In addition to Ex. PW6/B, which is corroborative piece of evidence, the detailed discussion as above, testimony of CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 84/176 PW8, PW11, PW12 as well as other prosecution witnesses and the CDRs Ex. PW3/A to Ex. PW5/A leaves no doubt that the recorded conversation were indeed between the complainant and the accused persons and one in the mobile phone was between Constable Jitender and accused no. 2.
6.82 It was also argued, while relying upon Ashish Kumar Dubey Vs. State 2014 (IV) AD Delhi 473, that though the recording device i.e. DVR was sent to CFSL, however, no opinion was sought from CFSL as to whether tampering was possible in the questioned recording with the help of the DVR or not. At the outset the said case law is based upon distinct facts altogether. As against the said case, the DVR was duly sent to CFSL in the present matter. Moreover in the said case though the recording was done in a micro cassette, however, the cassette which was sent to CFSL for examination & opinion was a regular cassette and the prosecution failed to explain as to when the contents of the micro cassette were transferred to a larger/regular cassette. As against that in the case at hand the memory cards in which the recording was done i.e. Q1 and Q2 were itself sent for examination & expert opinion. It has already been discussed above that they were immediately sealed and seized after the recordings and there is no question of any tampering of the same. As regards the DVR the use of the same was only for recording the conversation. The conversation was to be recorded in the memory cards. The DVR merely being a via media for recording a conversation and the fact that the memory cards in which the conversation was recorded were duly sealed and the seal was handed over to the independent CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 85/176 witnesses was sufficient enough to safeguard and ensure the authenticity of the recorded conversation/memory cards. Once the memory cards were duly sealed no question arises of any tampering in the same. Similarly, as was otherwise argued by Ld. Defence counsels, merely because the DVR remained unsealed is of no consequence. In the absence of memory cards, which were already sealed, nothing could have been recorded in the memory cards merely because the DVR remained unsealed. In fact vide forwarding letters Ex. PW6/DJ and Ex. PW6/DK the opinion was also sought as to whether memory cards and the recording in the phone of accused no. 2 and Constable Jitender have been tampered with or not and while answering the said query no. 4, PW6 in his report Ex. PW6/B answered as follows:-
"Waveform, spectrographic and critical auditory examination of the relevant audio recording contained in exhibits 'Q-1', 'Q- 2', 'M-1', 'M-2', 'S-1', 'S-2' & 'S-3' reveal that the audio recordings are continuous and no form of tampering detected."
6.83 No question of tampering or fabrication arises. Similarly, it is also of no consequence that no separate memo was prepared at the time of handing over the DVR to the independent witness as the fact of the DVR being handed over to the independent witness along with CBI brass seal used for sealing the memory cards is duly mentioned in the verification memo Ex. PW8/A2 and handing over memo Ex. PW8/A3. There was no need to seal the DVR before handing it over to the independent witness as in the absence of any memory card in the same which were already sealed and seized there could not have been any tampering with the same merely with use of blank DVR.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 86/176 6.84 It was also one of the arguments based upon Nileshdinker Vs. State (2011) 4 SCC 143 and Sudhir Chaudhary Vs. State AIR 216 SC 3772 that the sample voices were not prepared by PW15 after making independent sentences by lifting common audible words nor unknown voices were mixed in the samples. Furthermore the identity of the accused persons as speakers was available with PW6 before starting the analysis. I have considered the said case laws. In the case at hand I find absolutely no reason to assume that the exhibits, the recorded conversation contained in Q1 and Q2 were tampered in any manner whatsoever. The exhibits were duly sealed and remained in the sealed condition till their examination as stands proved from the report Ex. PW6/B and the expert/PW6 categorically stated, as discussed above, that there was no tampering in the same. The defence could not prove even remotely that there was any tampering, alteration, addition, deletion etc. with the exhibits i.e. Q1, Q2 or M-1 M-2 or the DVR for that matter. The defence also could not even remotely prove that the DVR or the memory cards were not capable of recording the conversation. As regards the non mixing of the sample voices, the detailed discussion above, testimony of PW8, PW11, PW12 and other prosecution witnesses as well as the CDR leaves no doubt that the recorded conversation did take place and it took place between the accused persons and the complainant in terms of the prosecution story. Recordings are not to be considered in isolation but in conjunction with the CDR and the ocular evidence of the independent witnesses, eye witnesses and the officials witnesses who had heard the conversations and seen the transactions as they unfolded. All the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 87/176 evidences compliment each other. There is absolutely no doubt in my mind, considering the evidence in its entirety as well as upon hearing the recorded conversation that the voices in the same belong to the accused persons. Furthermore while giving his report Ex. PW6/B, PW6 had in detail explained how the analysis/examination was done by him by selecting the common clearly audible sentences/words in the questioned recordings as well as the specimen voices in exhibits Q1, Q2 and S1 and S2.
6.85 Merely because the case property/exhibits remained in the possession of Sh. Sunil Kumar, Lab Assistant Physics Division, CFSL from 29.07.2020 to 18.09.2020 is of no consequence. Fact remains that the case property/exhibits were received in sealed condition and they remained so till the time of their examination as is evident from Ex. PW6/B and the testimony of PW6. At the cost of repetition, as already discussed above, the defence failed to prove any tampering or fabrication in the case property/exhibits. Nonetheless PW6 did explain why the case property remained with Sh. Sunil Kumar during this period when he deposed as under:-
"It is correct that as per Ex. PW6/DJ, the exhibits were received in Physics Division by Sh. Sunil Kumar, Lab Assistant on 29.07.2020. As per practice and procedure, the exhibits are received in the office of Director, CFSL, which is marked to the concerned Head of Department, who further marks it to any subordinate for checking and receiving the exhibits. After checking and receiving the exhibits, it goes to the case section and the case section gives an acknowledgement regarding receiving the exhibits in the respective division. At the end of the month, all the cases received in the division are allotted to the respective reporting officer of division in the case register of the division by the Head of the Department."
6.86 Though it was also argued by Ld. Defence Counsels CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 88/176 that the prosecution could not prove and PW6 could not produce any document that the case property/exhibit was alloted to him for examination, however, the fact remains that PW6 had examined the case property/exhibits and given the report Ex. PW6/B. Moreover PW6 had categorically stated that he can prove the relevant record in this regard but for reasons best known to the defence, no direction was sought to PW6 to produce the relevant record nor efforts were made to discredit the witness in case he was directed and failed to produce the record. The relevant portion of his cross-examination in this regard read as under:-
"It is correct it cannot be gathered from the forwarding letter Ex. PW6/DJ that the case was allotted to me by Head of Department. I can produce the copy of case register before the court as and when asked."
6.87 Though the Ld. Defence Counsels while highlighting the statement made by PW8 during his cross- examination tried to establish that the case property i.e. DVR and Q1 used in the verification proceedings were not kept in safe custody/not deposited in Malkhana and that it cannot be ruled out that they were tampered with, fabricated by the prosecution/IO, however, I find on merits in the said arguments. No doubt PW8 during his cross-examination stated as under:-
"I do not remember the time at which the independent witness Jai Deep Mathur was requisitioned or at what time he met us in the CBI office. I did not collect any document regarding his being deputed by his department to join the investigation of the present case. I did not ask if he had earlier also participated in the investigation of CBI case. I do not remember the time when I had arranged DVR and SD card but the same was arranged from the Caretaker of ACB, Delhi. I do not know if the Caretaker maintains any register regarding said devices. I do CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 89/176 not remember, if I had given any receiving on receipt of said DVR from the caretaker. The DVR and Q1 used during verification proceedings were not deposited with the Malkhana after the conclusion of the proceedings........... At the time of deposit of case property in the Malkhana, the Malkhana Incharge use to put the stamp on the relevant memo but it does not disclose the date of receipt of case property and only mention the MR/Memo number. It is correct that one cannot gather the date of deposit of case property from said stamp of Malkhana. It is correct that the case property has to be immediately deposited with the Malkhana, if possible. I had not deposited the case property Q1 in the Malkhana after conclusion of verification proceedings. I had handed over Q1 to the TLO on the next date of the verification and before that it remained in my possession...........I did not made any entry in GD register regarding retaining of Q1 by me before the same was handed over to TLO."
,however, PW8 had further stated as under:-
" (vol. But the Q1 was handed over to TLO on the next day and DVR with the brass seal were given to the independent witness.) The DVR and the brass seal handed over to independent witness is the part of case property in this case. No GD entry was made nor any permission was sought from any senior officer of CBI before handing over or at the time of handing over of said DVR and the seal to the independent witness (vol. It was done as per the practice followed in CBI cases)......... DVR was handed over to independent witness in unsealed condition. No separate memo was prepared at the time of handing over said DVR to independent witness. (vol. Such facts are mentioned in the verification memo itself.). The brass seal was also collected from Malkhana."
6.88 Once the memory card was duly sealed and the brass seal, which was used for sealing of Q1, was duly handed over to the independent witness, which fact was also corroborated by PW12 Sh. Jaideep Mathur, the same was sufficient enough to ensure the safe custody of Q1 as well as to rule out any tampering/fabrication. The relevant portion of deposition of PW12 in this regard reads as under:-
"The original memory card which was used for the purpose of recording of conversation was kept in an envelope and the same was sealed and my signature were taken on the said envelope CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 90/176 and seal was handed over to me. I was asked to bring the said seal on the next day."
6.89 The factum of handing over of the seal, after seizure and sealing of memory card Q1 part of Ex. P1 (colly) is duly mentioned in the verification memo which bears the signatures of independent witness apart from other CBI officials and the complainant. The seal remained with the independent witness for safe custody. Same is the position with Q2 and Ex. P9 as well as the seal used in trap proceedings/seizure of the said exhibits was handed over to PW12 as is also mentioned in the recovery memo. No separate acknowledgement was required once the factum of handing over of the seal was duly mentioned in the verification memo, as was otherwise argued by Ld. Defence Counsels. The relevant portion of the verification memo Ex. PW8/A2 in this regard read as under:-
"Thereafter, the 8 GB memory card used for recording the conversation during verification was removed from the DVR. The copy of the said memory card was prepared by using write blocker on the official laptop. Thereafter, the said memory card was marked as "Q-1 in CO-25/2020" and the independent witness, complainant, and verifying officer signed on the plastic cover and also on the paper cover of the memory card. The said Memory card was put into the plastic case and then in paper cover and further kept in brown colour envelope. The envelope was sealed with CBI brass seal. The complainant, independent witness, and VO signed on the sealed envelope.
The specimen seal impressions in lac and ink have been taken on separate sheet of papers which are signed by the independent witness, complainant and VO. The facsimile of seal impression was also taken on each page of Verification Memo.
The DVR and CBI Brass seal used in proceedings is being handed over to the independent witness for safe custody under acknowledgement with the direction to produce for further proceedings. The sealed envelope containing memory card marked as "Q-1 in CO-25/2020" was kept in safe custody."
6.90 During his cross-examination the witness CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 91/176 categorically denied that the DVR and seal was not handed over to him by the verifying officer and further categorically stated that he had signed the verification memo after going through the same. Same is the position with memory card Q2 which was used in trap proceedings. It was immediately sealed after the trap proceedings along with other exhibits including S1, S2 and S3, right hand wash of accused no. 2 and the seal was handed over to PW11 as is duly mentioned in the recovery memo Ex. PW8/A4 signed by the independent witnesses, the complainant and other members of the trap team.
6.91 It was also argued by Ld. Defence counsels that though it is the prosecution case that the case property was deposited by Trap Laying Officer (PW13) with malkhana and it was sent to CFSL after taking it out from the malkhana, however, the prosecution miserably failed to prove that the exhibits were indeed safely deposited in the malkhana and that they remained safe, untampered with till the time they were sent to CFSL for examination. It was argued that prosecution could not prove that the case property/exhibits of the alleged verification and trap proceedings remained in safe custody till their examination. It was argued that neither the malkhana Incharge has been cited as a witness nor any malkhana record has been proved on record as regards the movement of the case property/the exhibits. It was argued that no statement of the Malkhana Incharge was recorded nor the malkhana record was brought on record. It was also argued that PW13 in fact did not state anything about the deposit of case property with malkhana and rather stated, during his cross-examination, that the case CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 92/176 property was handed over by him to IO Insp. Ravinder Bharti (PW15) which fact was denied by Insp. Ravinder Bharti (PW15) and therefore tampering with the case property/exhibits cannot be ruled out. It was argued that this is the major missing link in the prosecution case which is itself fatal to the prosecution. It was also argued that though there is stamp of malkhana CBI/ACB/New Delhi on the verification report i.e. Ex. PW8/A2 and also on the recovery memorandum Ex. PW8/A4, however, there is no date below the stamp suggesting when the exhibits were deposited with the malkhana. Furthermore there is no signature of any official against the stamp. It was argued that the prosecution has miserably failed to prove as to who had taken the exhibits to CFSL for their examination nor statement of any such person was recorded and hence possibility of tampering cannot be ruled out. Ld. Counsels placed reliance upon State Vs. Daulat Ram 1980 SCC (Cr) 683, State Vs. Hansraj 2018 (4) RCR (Cr) 813, Surender Singh Vs. State 2014 (8) LRC 177 Delhi and Ram Singh Vs. Colonel Ram Singh AIR 1986 SC 3 in support of defence arguments.
6.92 As far as the said arguments are concerned, no doubt the prosecution failed to lead evidence as regards the deposit of case property in malkhana, when it was deposited and by whom. Similarly, the prosecution witnesses including the IO failed to give the name of the malkhana Incharge or the date of deposit of case property in malkhana, however, merely because of these lacunas in the prosecution story no aspersions can be cast upon the prosecution case nor the same is rendered untrustworthy or unbelievable. Fact remains that the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 93/176 conversation between accused no. 1 and the complainant was recorded in Q1 part of Ex. P1 through the DVR during the verification proceedings. Thereafter Ex. P1 was sealed and seized vide Ex. PW8/A-2. The seal used for sealing the memory card was handed over to independent witness PW12 as was proved by the said witness as well as other prosecution witnesses and is evident from Ex. PW8/A-2 i.e. verification memo. This ensured that memory card Q1 part of Ex. P1 (colly) could not be tampered with. As far as Q2 is concerned, in which the telephonic conversation between the complainant and accused no. 2 was recorded, the same was also sealed and seized immediately after the trap proceedings vide Ex. PW8/A-4, vide which memo other exhibits/case property were also seized which also includes the right hand wash of accused no. 2 i.e. Ex. P9. The seal used for seizure of exhibits of the trap proceedings was duly handed over to independent witness PW11 Sh. Arvind as is evident from Ex. PW8/A-4 and was also proved by PW11 and other prosecution witnesses.
6.93 The CFSL results which are on record as Ex. PW6/B and Ex. PW9/A sufficiently proves that till the time of examination of the case property/exhibits the same were not tampered with. When the case properties were received at CFSL same were in duly sealed condition as was deposed by PW6 Dr. Subrat Kumar Chaudhary and PW9 Ms. Deepti Bhargava who further deposed that the seals on the parcel were intact and tallied with the specimen seal. Things would have been entirely different had PW6 and PW9 deposed that when the samples were received for examination the seals were already broken or CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 94/176 the envelope/package containing them torn or damaged. Same is the situation qua the remaining case property/exhibits. The defence has not been able to prove that there was indeed any tampering, fabrication with the case property/exhibits. Without even remotely establishing that there was indeed any tampering, fabrication with the case property/exhibits, the defence cannot expect the court to assume that merely because they were not deposited with the malkhana or that there are certain discrepancies between the statement of the prosecution witnesses as regards the handing over of the case property that there was indeed some tampering, fabrication. These are merely assumptive and hollow arguments without any basis whatsoever. Reliance upon Ram Singh (supra), State of Uttar Pradesh v. Hansraj @ Hansu (supra) and Surender Singh (supra) does not come to the rescue of the accused persons.
6.94 No doubt the IO should have been much more diligent and should have recorded the statement of malkhana Incharge, produced the malkhana record/register/entries and should have also arrayed the CBI officials who collected & deposited the exhibits with CFSL Rohini as witnesses in the present matter nonetheless merely because the IO failed to carry out a diligent investigation, examine those witnesses or record their statements, that by itself cannot be made the basis to reject the prosecution case which is otherwise consistent on material particulars. Nonetheless PW15 Insp. Ravinder Bharti deposed that it was HC PR Meena who had taken the exhibits to the physics division of CFSL and HC Suresh Chand Yadav took the exhibits to chemistry division of CFSL.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 95/176 6.95 Similarly, the fact that the IO did not note down the unique identification number of the DVR or the memory card on any document is of no significance and does not create any doubt upon the prosecution case for the simple reason that the DVR and the seal, after seizure and sealing of memory card Q1 i.e. Ex. P1 (colly) were handed over to the independent witness which sufficiently ensured their safe custody and rules out any fabrication/ manipulation. Moreover as discussed above, defence could not even remotely establish any tampering in the DVR or the memory cards. Same applies to not noting down the time of recording when the introductory voice of the independent witness was recorded. The fact that the time in the DVR can be manually set and automatic default setting of time facility is not available in the DVR is also of no consequence for the reason that the time period, the chain of event stands duly established, corroborated by the prosecution witnesses especially the independent witnesses, Verifying Officer, the Trap Laying Officer and other members of the verification and trap team. Defence could not point out any discrepancy in the testimony of these witnesses as regards the verification proceedings or for that matter the trap proceedings viz-a-viz the time duration.
6.96 For the same reasoning, failure on the part of PW8 and for that matter PW13 to bring on record any
acknowledgement/receipt as regards the procurement of DVR/memory cards/ SD cards, phenolphthalein powder, brass seal etc. which were used in the verification & trap proceedings, from the Caretaker of ACB Delhi cannot be made a ground to CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 96/176 render the prosecution case unreliable or untrustworthy. These are minor lacunas in the prosecution case which do not affect the merits of the case. These shortcomings, loopholes have not dented or created doubt upon the substantive evidence. The prosecution story cannot also be rejected for failure on the part of PW8 to note down the particulars of the vehicle in which they had gone to PS Vijay Vihar or his failure to collect the log book of the vehicles. Same applies to the failure on the part of PW13 and PW15 in noting down the registration number of the officials vehicles or the log books or the particulars of the drivers or for that matter the complainant's baleno car registration number. Absence of these details/particulars does not even remotely discredit the prosecution case as these are ancillary details extremely distantly connected with the substantive offence/investigation. Prosecution was duty bound to prove the demand and acceptance and the same stands duly proved on record.
6.97 I have also considered the defence submission as regards the complainant not being a witness to the site plan Ex. PW8/A5 and the fact that his sample voice was not taken by the TLO or the IO and I am constrained to observe that the approach of the investigating agency, in the present case, as regards certain aspects of the investigation has been lackadaisical and the same is deprecatory. Ineffective and indifferent investigation as a result of acts of omission or commission, deliberate or otherwise, by the Investigating Officers is absolutely unacceptable. However, the question to be considered is whether the lapses in the investigation are mere irregularity or an CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 97/176 illegality which would adversely affect the case of the prosecution. What is to be considered is whether such default and/or acts of omission and commission have adversely affected the case of the prosecution and whether such default and acts were deliberate, unintentional or resulted from unavoidable circumstances of a given case. (Dayal Singh vs. State of Uttranchal (2012) 8 SCC 263). What the court is required to see is the prosecution evidence in its entirety and weigh whether defective or irresponsible investigation has rendered the said evidence shaky or unreliable. When the investigation is perfunctory it becomes the duty of the court to see if the evidence on record minus the lapses is sufficient to establish the guilt of the accused. Noticing the possibility of investigation being designedly defective it was held in Dhanaj Singh v. State of Punjab (2004) 3 SCC 654 as under:-
"5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
6.98 Dealing with the cases of omission and commission it was held in Paras Yadav v. State of Bihar (1999) 2 SCC 126 as under:-
"...........that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party."
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 98/176 6.99 In Zahira Habibullah Sheikh (5) v. State of Gujarat (2006) 3 SCC 374 it was held as under:
"42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure a fair trial where the accused and the prosecution both get a fair deal. Public interest in proper administration of justice must be given as much importance, if not more, as the interest of the individual accused. In this courts have a vital role to play."
6.100 In Hema Vs. State (2013) 10 SCC 192 it was held that if the evidence adduced is reliable, the contaminated conduct of the police officers and the defective investigation would not entitled the accused for acquittal. It was observed as under:
"14. It is also settled law that for certain defects in investigation, the accused cannot be acquitted. This aspect has been considered in various decisions. In C. Muniappan v. State of T.N. [(2010) 9 SCC 567], the following discussion and conclusions are relevant which are as follows: (SCC p. 589, para 55) ―55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 99/176 6.101 In Gajoo v. State of Uttarakhand (2012) 9 SCC 532 it was held "A defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused, should not be an aspect of material consideration by the court."
6.102 In Zindar Ali SK vs State of West Bangal Ors. MANU/SC/0141/2009 it has categorically held that defence cannot take advantage of bad investigation, when there is a clinching evidence. It is also settled proposition of law that minor contradictions in prosecution case can be ignored if cogent evidences are available on record for conviction of the accused. (Girwar Singh & Ors. Vs CBI MANU/DE/4551/2015).
6.103 When certain factual aspects have been held back and have not been brought on record creating grave suspicion, the Court must examine whether the lack of or improper investigation has resulted in incompleteness or uncertainty. If the investigation leaves a number of queries unanswered and creates confusion or ambiguity, conviction should not be ordered/sustained. However, in every case of defective investigation, an accused cannot be acquitted, if the reliable evidence produced, dehors the defective investigation, is sufficient to bring home the guilt of the accused beyond all reasonable doubts. In such matters, the accused cannot take advantage of defective investigation unless the defective investigation causes reasonable doubt about the prosecution case. The law is well settled that an accused should not be allowed to go scott free or the prosecution be disbelieved for defective investigation (Balwant Singh v. State of Haryana, (SC) 1995 CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 100/176 A.I.R. (SC) 84 and Amar Singh Vs. Balwinder Singh 2003 AIR SCW 717). Every faulty investigation or padding in evidence cannot by itself lead to total demolition of prosecution case if it can otherwise stand ignoring these fallacies. (Lakshmi v. State of UP (SC) 2002 (4) R.C.R. (Criminal) 82). Mere faulty investigation cannot be made basis of acquitting the accused when sufficient evidence is available to nail him (Ram Parshad v. State of Haryana, (P & H) (DB) 1992(3) R.C.R (Criminal)
231). In Zahira Habibulla H. Sheikh v. State of Gujrat (SC), 2004 (4) S.C.C 158 and State of UP v. Jagdeo (SC) 2003 A.I.R. (SC) 660. To do so would tantamount to playing into hands of investigating officer if investigation is designedly defective.
6.104 Though it was also vehemently argued by Ld. Defence counsels that prosecution failed to prove that the complainant indeed owned any plot or was raising/had raised boundary wall/construction, which is the genesis of the entire prosecution, as neither the property documents nor the details of PCR call which he allegedly made when certain persons came to his plot & laid claim to the same were proved on record and therefore the entire basis of the prosecution case goes, however, I find no merits in the said arguments. To begin with the fact that the complainant was raising construction over a plot and that certain persons tried to stop him while laying claim to his plot was duly mentioned by the complainant in his complaint Ex. PW8/A-1. The said fact also stands duly established from the recorded conversation/transcript Q1 i.e. Ex. PW10/B between the complainant and accused no. 1 which has been discussed in detail above. Furthermore, as discussed above, the law is fairly CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 101/176 well settled now that any defect in the investigation cannot be made the basis of acquitting the accused. It was for the IO to collect these necessary documents i.e. property papers, the PCR call form etc. His failure to do so cannot be made the basis of rejecting the prosecution case.
6.105 It was also one of the defence arguments that prosecution did nor adduce any evidence to the effect that the accused persons were capable of favouring or disfavouring the complainant. It was argued that prosecution was duty bound to prove the cause behind the demand. It was argued that neither the Trap Laying officer (PW13) nor the IO (PW15) verified the fact whether the complainant was indeed in possession of any property or had raised any boundary wall within the limit of PS Vijay Vihar. It was argued that as per PW8/A-1 the boundary wall was already alleged to have been raised and as such the cause for demand for the alleged bribe did not exist and there was no occasion to make a demand. Reliance was placed upon Ganpati Naik Vs. State AIR 2007 SC 3213 and State Vs. Sohan Singh 2009 (3) RCR (Cr.) 971 SC to buttress the arguments. However, I find no merits in the said arguments. In the case at hand the fact there was a demand by accused no. 1 stands established and the said demand was in respect of a plot, some encroachment issue upon the same as is evident from the complaint, the recording in Q1, as discussed above in detail. Accused no. 1 was the SHO of the area. It is a matter of common knowledge and of which judicial notice can be taken that the SHO/police officials of the police station are responsible in some way or the other in monitoring construction/unauthorized CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 102/176 constructions within their jurisdiction. In case of dispute/quarrel regarding ownership, possession, encroachment on a piece of land/plot/property it is the local police who is first approached by the concerned party and is the first point of contact. In addition to the demand the acceptance also stands duly proved on record, as is discussed in detail in the later part of the judgment and presumption of section 20 of the PC Act comes into picture. Most importantly, the law is well settled that even if the act done or promised to be done does not come within the scope of function of his office, the act does not cease to be official act.
6.106 It has been held in Dr. V. Sebastian Versus The State 1988 Criminal Law Journal 1150 as under:-
"The language used in Section 161 of the Indian Penal Code does not justify the narrowing down of the scope of the words "official act". A public servant may have power to do certain official acts by virtue of the rank he holds as a public servant. He may get other powers by virtue of the office which he holds. When he exercises either of the powers, his act is official. No line of distinction can be made as between the acts in exercise of a particular office and acts in exercise of his position as a public servant. If the act is done in his official capacity, as distinguished from his purely private capacity, it amounts to official act. Even if it does not come within the scope of the functions of his office, the act does not see to become official act."
6.107 In case Girija Prasad (dead) by Lrs versus State of Madhya Pradesh 2007 IV AD (Cr.) (SC) 433 the allegations were that the complainant was asked to pay the bribe amount of Rs. 500/- or to face the suspension for absence from duty. The Hon'ble Apex Court held that it is immaterial that whether the appellant was or was not in a position to oblige the complainant by preventing or delaying his suspension.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 103/176 6.108 In Indur Dayaldas Advani vs The State Of Bombay AIR 1952 BOM 58 it has been held as under:-
".........it is not necessary that the act should actually be performed, it is immaterial whether the act which is the consideration for the bribe, is or is not within the power of the public servant receiving the bribe to perform........"
6.109 In Madhukar Bhaskarrao Joshi vs State Of Maharashtra AIR 2001 SUPREME COURT 147 it has been held as under:-
".................................The very undisputed fact that the amount had reached the hands of the appellant itself is sufficient corroboration for the testimony of PW-1 that the amount was paid to the appellant. Learned counsel next contended that the legal presumption envisaged in Section 4 of the Act of 1947 can be drawn only on establishing that gratification was paid to or accepted by the public servant and not merely that he was found in possession of the currency notes smeared with phenolphthalein. True the word gratification is not defined in the Act of 1947. (In the successor enactment, the Act of 1988, the same word is explained as not restricted to pecuniary gratification or to gratification estimable in money vide Explanation (b) to Section 7 of the Act of 1988). In Blacks Law Dictionary, gratification is defined as a recompense or reward for services or benefits given voluntarily without solicitation or promise. But in Oxford Advanced Learners Dictionary of Current English the said word is given the meaning to give pleasure or satisfaction to. Among the above two descriptions for the word gratification with slightly differing nuances as between the two, what is more appropriate for the context has to be found out. The context in which the word is used in Section 4(1) of the Act of 1947 is, hence, important. As the wording on the relevant portion employed in the corresponding provision in the PC Act of 1988 {Section 20(1)} is identical we would reproduce that sub-section herein: Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub- section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 104/176 consideration or for a consideration which he knows to be inadequate.
The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted as motive or reward for doing or forbearing to do any official act. So the word gratification need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like gratification or any valuable thing. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word gratification must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.
In Mohmoodkhan Mahboobkhan Pathan vs. State of Maharashtra {1997(10) SCC 600} this Court has taken the same meaning for the word gratification appearing in Section 4(1) of the PC Act of 1947. We quote the following observations:
The primary condition for acting on the legal presumption under Section 4(1)of the Act is that the prosecution should have proved that what the accused received was gratification. The word gratification is not defined in the Act. Hence it must be understood in its literal meaning. In the Oxford Advanced Learners Dictionary of Current English, the word gratification is shown to have the meaning to give pleasure or satisfaction to. The word gratification is used in Section 4(1) to denote acceptance of something to the pleasure or satisfaction of the recipient.
We, therefore, repel the contention of the learned counsel that prosecution has a further duty to prove beyond the fact that PW- 1 had paid the demanded money to the appellant for enabling it to lay the hand on the legal presumption employed in the Prevention of Corruption Act. We may point out that the defence did not even attempt to prove that the amount received by the appellant was not accepted as a reward or motive for the official act done by him, except the ipse dixit of the appellant, that too made at the fag end of the trial when he put in a written statement of his defence. Hence no exception can be taken to the conviction passed by the trial court which was concurred by the High Court in respect of the offence under Section 5(2) of the Act of 1947."
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 105/176 6.110 In the case at hand once the bribe money was recovered from accused no. 2, which has been discussed in detail in the later part of the judgment, in continuation of demand raised by accused no. 1 it was for the accused persons to explain the acceptance/recovery which they miserably failed to explain. In fact none of the accused person can under any circumstance explain the acceptance & recovery of the bribe money from accused no. 2. In C.M.Girish Babu vs CBI, Cochin AIR 2009 SUPREME COURT 2022 it has been held as under:-
"18. A three-Judge Bench in M. Narsinga Rao Vs. State of A.P. (2001) 1 SCC 691 while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed:
"........................we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra.) The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel: (SCC p.577, para 12) The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted `as motive or reward' for doing or forbearing to do any official act. So the word `gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like `gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word `gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
6.111 In B. Noha vs State of Kerala And Anr AIRONLINE 2006 SC 603 it has been held as under:-
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 106/176 ".............When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case."
6.112 At this stage it will be worthwhile to highlight the observations made in Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233 wherein it has been held as under:-
".......... The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that, it is sufficient if the accused is able to prove his case by the standard of preponderance of probabil- ities as envisaged by s. 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established .the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court.
6.113 In the case at hand as discussed above there cannot be any explanation, any defence version which can compete with the prosecution case or cast doubt upon the same. As is discussed in detail in the later part of the judgment, accused no. 2 cannot explain his presence at the spot of recovery/acceptance, where the trap was laid. Accused no. 2 also cannot explain his recorded conversations with the complainant and with Constable Jitender. When the acceptance of the bribe amount/tainted money stands proved through the testimony of official and independent witnesses and the CFSL result I fail to understand and I also find CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 107/176 no explanation whatsoever on record from the accused persons which can explain/justify the acceptance/recovery of the bribe amount.
Acceptance and recovery
7. It stands duly proved on record that the demand raised by accused no. 1 culminated in acceptance by accused no. 2, as per his directions and in furtherance of the conspiracy.
7.1 After the verification confirmed the demand by accused no. 1, FIR i.e. Ex. PW8/A-3 was registered and further investigation was handed over to Insp. Shyam Rai (PW13) i.e. Trap Laying Officer. The trap was laid on 17.06.2020 and the trap team consisted of PW13, Sub. Insp. Vikrant Tomar (PW14), the verifying Officer (PW8), the complainant (PW10), the independent witnesses i.e. Sh. Jaideep Mathur (PW12) & Sh. Arvind (PW11) apart from other CBI officials. PW8, PW11 to PW14 have explained in detail as to how the pre trap proceedings were conducted and the testimony of these witnesses is consistent on material particulars.
7.2 The amount of Rs. 2 lacs was brought by the complainant, at the CBI office on 17.06.2020, as it was to be paid/handed over to accused no. 2 in terms of the demand raised by accused no. 1 as is evident from the discussion as above especially from Ex. PW10/B and Q1 part of Ex. P1 (colly). The said amount was in the denomination of Rs. 2000/- & Rs. 500/-, their distinctive numbers were noted in Annexure A of handing CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 108/176 over memo Ex. PW8/A-3 and after giving demonstration regarding reaction of phenolphthalein powder with sodium carbonate solution, the bribe amount/currency notes were treated with phenolphthalein powder and kept in a yellow colour envelope which was also treated with same powder. Thereafter it was kept in a white cotton bag which was handed over to the complainant. A new sealed memory card of make Sandisk i.e. Ex. Q2 was arranged, put in the DVR produced by independent witness PW12, after ensuring its blankness and introductory voices of both the independent witnesses were recorded. PW11 was directed to act as a shadow witness and remain close to the complainant to hear the conversation, see the transaction of the bribe amount as well as to give signal after the transaction was over.
7.3 On the trap day when the trap team reached near PS Vijay Vihar calls were made by the complainant to accused no. 2 between 06.50 p.m. to 7.22 p.m. which were duly recorded in the DVR by putting the mobile phone on speaker mode. As already discussed above in detail, CDR Ex. PW3/A duly proved the factum of the calls being exchanged between the complainant and accused no. 2. In fact CDR Ex. PW3/A and Ex. PW4/A proves that the calls were also exchanged between accused no. 2 and DW1 just before the acceptance, who as has been discussed in the later part of this judgment was present at the spot to ensure that the amount was safely received by accused no. 2. Accused no. 2 asked the complainant to reach at Masjid near PS Vijay Vihar but the complainant requested him to come at mother dairy, Budh Vihar. The trap team reached the said place, CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 109/176 however, accused no. 2 asked the complainant to meet him at main market Budh Vihar and when he reached there accused no. 2 again called the complainant informing him that he was present at a saloon in the market and asked the complainant to reach the said saloon. All these calls were duly recorded in Q2 and in the calls, specific demand was raised by accused no. 2, in furtherance of the demand already raised by accused no. 1 when he told the complainant " aaja phir de de wo saaman". This "saaman" is nothing but the bribe amount. The transcript is available on record as Ex. PW10/C. The complainant went inside the saloon and after coming out sat in his car. Within 1/2 minutes accused no. 2 came out of the saloon, reached near the car of the complainant, raised demand for money by gesture, with right hand and accordingly the complainant handed over him the yellow envelope containing the bribe amount/tainted money. Accused no. 2 thereafter sat on a motorcycle driven by DW1 Constable Jitender, however, they were apprehended by the trap team. PW13 caught hold of the wrist of the right hand of accused no. 2, SI Pradeep (PW8) caught hold of his left hand and SI Nitin took off the key from the motorbike after switching off the ignition. On directions PW12 took the envelope from the right hand of accused no. 2 thereby recovering the duly accepted bribe amount/tainted money. Subsequent to the recovery right hand wash proceedings of accused no. 2 were conducted which gave a positive result, the solution turned pink and the said solution was duly preserved in a glass bottle which is Ex. P9. The recovered amount was tallied by the independent witnesses, CBI team and found matching with Ex. PW8/A-3. The relevant images of the transcript Ex. PW10/C is reproduced hereunder:-
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 110/176 CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 111/176 CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 112/176 7.4 The Ld. Defence counsels, while highlighting the contradictions in the testimony of independent witnesses and the trap team members, vehemently argued that the entire trap proceedings are fabricated one and that acceptance is not even CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 113/176 remotely proved. It was argued that though PW13 claimed that on his directions independent witness Sh. Jaideep Mathur (PW12) had recovered the envelope containing the tainted money i.e. Ex. PW11/A-3 (colly) from accused no. 2, however, the said fact was contradicted/denied by PW12. It was argued that PW13 admitted, during his cross examination, that both the independent witnesses were at a distance of 10-12 steps from the place where the complainant handed over the envelope containing the tainted money to accused no. 2 and therefore they could not have witnessed the alleged acceptance/handing over of the tainted money to accused no. 2. It was further argued that the recorded conversation in Q2 and Ex. PW10/C belies the prosecution case as regards the presence of independent witnesses at the spot as in the said conversation the trap team members can be heard as saying/asking "witness kaha hai witness kaha hai". It was argued that if the independent witnesses were duly present at the spot and witnessed the alleged acceptance of the tainted money, then there was no occasion for the trap team to call for the witnesses/inquire about their whereabouts.
7.5 As far as presence of independent witnesses at the spot at the time of trap proceedings is concerned, I have absolutely no doubt that both the independent witnesses were present at the spot at that relevant time. Both PW11 and PW12, as is evident from their deposition were part of the trap team and had gone to the spot along with the trap team. The fact that the acceptance of the tainted money was duly witnessed by PW12 stands duly established from the following statement made by CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 114/176 him which is sufficient proof of acceptance and recovery and no further proof is/was required:-
"I observed that the complainant had made a call from his mobile phone while sitting in his car and thereafter, he came out of his car and went inside a saloon and immediately he came out on said saloon and again sat in his car. Thereafter, I saw one person who later on, was identified as Ct. Badri coming out of said saloon and went towards complainant Baleno Car. The complainant then handed over the yellow colour envelope to Ct. Badri while sitting in his car. After taking said yellow envelope from the complainant, Ct. Badri proceeded towards a bike which with ignition on and on said bike, some other person was sitting on the driver seat. Thereafter, I saw the CBI team rushing towards Ct. Badri. The TLO Shyam Rai caught hold of the accused from behind and immediately thereafter, the other team members also reached there. The CBI official took out the key of said motorcycle and also took the said yellow envelope from the hands of Ct. Badri..........At the same place, near Vijay Vihar, the right hand wash of the accused was also done in the same manner as was done in the demonstration given to us in CBI office before proceeding for the trap. After the accused put his right hand in the solution, the solution turned pink and the said solution was transferred to a separate glass bottle which was capped and sealed and upon the same, my signature and signature of other independent witness Sh. Arvind were taken...........The said GC Notes were given by Sh. Sunil Vats to accused Badri Prasad and the same were recovered from the possession of accused Badri Prasad after he was trapped by the CBI team. I had tallied the details i.e. the denomination and the serial number of said recovered notes with the details given in Annexure-A of Ex. PW8/A3 collectively"
7.6 The relevant portion of testimony of PW11 in this regard read "I noticed that the yellow colour envelope was in the hands of another independent witness". During his cross- examination by Ld. Defence Counsel he stated as under:-
"No one told me as to from whom the packet of currency notes was recovered, which I had seen in the hand of independent witness Jaideep when I came to the spot."
7.7 PW12 is thus an eye witness of the acceptance of the tainted money by accused no. 2. Defence could not prove CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 115/176 that PW12 was not present at the spot or that he was present somewhere else. Merely because there is a minor discrepancy in his testimony viz-a-viz PW13 to the extent that PW13 had claimed that on his direction PW12 had taken the envelope containing the bribe amount from the hand of accused no. 2 whereas PW12 claimed that it was the CBI team who took the said envelope from the hand of accused no. 2, that by itself does not render the testimony of PW12 or PW13 or for that matter the prosecution case unreliable or untrustworthy. Fact remains PW12 had categorically proved the acceptance of the yellow envelope containing the tainted amount by accused no. 2 from the complainant and then proceeding towards the bike driven by DW1. As far as reliance upon Sita Ram Vs. State 2020 (2) RCR (Cr) 801 is concerned, the said case based upon distinct facts altogether. In the said case the demand and acceptance of illegal gratification in the police station was held to be unusual and there was contradictions as regards the location of the transaction. Furthermore there was no acceptance directly by accused but the bribe amount was kept in the cardboard box on the table. In the case at hand there is ample proof of demand and its acceptance by eye witnesses i.e. independent witnesses and members of the trap team. The acceptance also stands duly proved from the right hand wash/Ex. P9 and the entire evidence surrounding the demand & acceptance which includes ocular, technical & expert evidence is highly consistent on material particulars.
7.8 The minor contradictions as highlighted by Ld. Defence counsels are bound to occur with the passage of time.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 116/176 The trap proceedings were conducted on 17.06.2020 whereas the testimony of PW12 was recorded in February 2023 and that of PW13 in May 2023. Human memories are apt to blur with passage of time, around 3 years in the present case. A person cannot be expected to give a parrot like version or depose with mathematical precision. Only a tutored witness can depose so. Error due to lapse of time/lapse of memory have to be given due weightage/ due allowance. By and large a witness cannot be expected to possess a photographic memory and to recall the minute details of an incident. It is not as if a video tape is replayed on the mental screen. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. Unless the defence is able to establish that the discrepancies or short coming or for that matter lacunas in the prosecution case have prejudiced the accused persons or rendered the prosecution case unreliable or untrustworthy, the same cannot be formed the basis of acquitting the accused.
7.9 It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. It is the duty of the court to sift through the evidence and ascertain as to whether the evidence minus the contradictions, improvements, embellishments inspire confidence and is sufficient to convict the accused. Undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 117/176 shake the basic version of the prosecution case.
7.10 It has been held in Zamir Ahmed Vs. The State 1996 Cri.L.J. 2354 as under:-
"It would be a hard nut to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnesses with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words according to his own perception and in proportion to his intelligence power of observation."
7.11 Irrespective of the minor inconsistencies as pointed out by Ld. Defence counsels the following essential facts stand duly proved on record through the testimony of PW12: (i) the exchange of calls between the complainant and accused no. 2 on 17.06.2020 i.e. the trap day which fact is also corroborated by Q2 & Ex. PW10/C as well as call records, (ii) meeting of the complainant and accused no. 2 at the spot where the trap was laid and at which place accused no. 2 has no reasons to be at except for acceptance of the bribe amount/tainted money, (iii) handing over of the bribe amount/tainted money to accused no. 2 and its recovery, which fact is duly corroborated from Ex. P9 i.e. hand wash of accused no. 2 and the fact that hand wash was conducted which gave a positive result was not only proved by the prosecution witnesses but also by the defence witness/DW1 as has been discussed in the later part of the judgment and (iv) that the amount recovered from accused no. 2 tallied with Ex. PW8/A3.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 118/176 7.12 Though PW12 did state that "I was around 1012 steps away from the spot where accused Badri was apprehended......I heard the TLO asking for the independent witness and after hearing the same, I reached the spot where accused Badri was apprehended by him.", however distance of 10 to 12 steps or 10 to 12 feet is not a huge distance. It is not such a distance which could have prevented PW12 from witnessing the transaction. During the crossexamination of PW12 the defence could not bring anything on record to the effect that his view was obstructed or that he did not witness the acceptance of the tainted money by accused no. 2 In fact PW12 was on the same side of the road where accused no. 2 was apprehended and his deposition in this regard read as "There was a single road and there was no divider. I was on the same side of the road where accused Badri was apprehended".
7.13 As far as PW11 is concerned, there is absolutely no doubt that he was also present at the spot at the time of trap proceedings. Why he moved a little away/ahead of the spot was duly explained by him when he stated as under: "The CBI team members and us were told to stay nearby and everybody took position in discreet manner. When we had taken position around the saloon, I noticed that one person in plain clothes was on the yellow colour police bike and the other person, to whom the complainant had talked over phone was still inside the saloon. The person on the bike was looking here and there in a suspicious manner and hence, I moved ahead till 3-4 shops. Meanwhile I heard commotion where is witness, where is witness (witness kahan hai, witness kahan hai). I reached at the spot and found that one person sitting on the rear seat of the yellow colour police beat motorcycle was overpowered from back side by the team leader and the person, CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 119/176 whom I had noticed sitting on the said motorcycle, prior to going ahead, was on the driving seat and the ignition of the motorcycle was on. I noticed that the yellow colour envelop was in the hands of another independent witness."
7.14 The person on a bike was Constable Jitender/DW1 whose presence at the spot and role has been discussed in detail in the later part of the judgment. PW11 had moved a little ahead so as not to alert DW1, who was on the lookout for accused no. 2 and thus to prevent the trap proceedings from failing. Nonetheless PW11's testimony duly proved the pre trap proceedings, presence of the trap team including other independent witness PW12 at the spot as well as the apprehension of accused no. 2 and recovery of the tainted money from him. His testimony further corroborates the testimony of the prosecution witnesses as regards the hand wash proceedings and tallying of the recovered amount with Ex. PW8/A3. The fact that the calls were exchanged between the complainant and accused no. 2 immediately before the trap also stands corroborated by PW11 as he had categorically stated that the calls were heard by him and the trap team as the phone was on speaker mode. The relevant portion of the deposition of PW11 as regards the pre trap and post trap proceedings, which was duly corroborated by PW12, is reproduced hereunder: "Thereafter, the numbering/sequencing of the currency notes brought by complainant was done in our presence by us alongwith CBI officials..........The bribe amount of Rs. 2 lakh was treated with phenolphthalein power and thereafter it was kept in yellow colour envelop which was further treated again with the phenolphthalein powder and thereafter the said yellow envelop was kept in a carry bag and it was handed over to the complainant. The complainant was told not to touch the bribe amount.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 120/176 ...........
The person who was apprehended while sitting on the rear seat of the motorcycle was then made to put his hand in the solution made at the spot and the colour of the solution turned pink. The solution was put in a bottle and packed and sealed in our presence.
At this stage, MHC(M) has produced one glass bottle having seal of CFSL, already Ex. P-9 having bearing RHW in RC No. 18(A)/2020, CFSL-2020/C-353, Ex. RHW and shown to the witness who identifies the same as the same bottle in which the solution was transferred on the spot after it turned pink. The witness has identified his signatures at point B. .............
The official seal of the CBI used in the trap proceedings was handed over to me for safe custody. The DVR and the memory card containing the voice recordings of the trap proceedings were kept in different envelopes and same were sealed by CBI and were got signed by me and other independent witness Jai Deep.
7.15 Apart from PW11 & PW12 there are other eye witnesses of the acceptance of the bribe amount/tainted money i.e. PW13 Insp. Shyam Rai i.e. the Trap Laying Officer and PW14 Insp. Vikrant Tomar whose testimony is itself sufficient to prove the acceptance of the bribe amount by accused no. 2 and there is no need of any independent corroboration of their testimony and even otherwise independent corroboration does not mean that every detail of what the witnesses of the raiding party have said must be corroborated by independent witnesses. The value of the testimony of a witness depends on diverse factors such as, the character of the witness, to what extent and in what manner he is interested, how he has fared in cross- examination, etc. There is no doubt that the testimony of partisan or interested witnesses must be scrutinised with care and there may be cases where the Court will as a matter of prudence look for independent corroboration, however, there is no universal or inflexible rule that the evidence of the witnesses of the raiding CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 121/176 party who may be called partisan or interested witnesses must be discarded, unless independent corroboration is available. There is no general rule that the evidence of the raiding party is necessarily tainted or that on their evidence alone, it would be difficult to carry the guilt home. (The State Of Bihar vs Basawan Singh AIR 1958 SC 500). The relevant portions of the deposition of PW13 and PW14 in this regard are reproduced hereunder: PW13 "After 1-2 minutes, accused Badri came out of the saloon and reached near the car of the complainant and raised demand for money by gesture with right hand. The complainant thereafter, took out the yellow envelop carrying the tainted amount and handed over the same to accused Badri, who took the envelop with his right hand. Thereafter, accused Badri sat on the rear seat of motorbike which was already there near the complainant's car in starting mode. As soon as the accused Badri sat on the motorbike with the envelope in his hand, I immediately rushed to the spot and caught hold of him from the waist. Thereafter, the other members of the team reached the spot and tried to overpower accused Badri. I then caught hold of the wrist of right hand of accused Badri and SI Pradeep caught hold of the left hand and SI Nitin took out the key from the motorbike after putting the ignition off. Thereafter, I directed the independent witness Mr. Jaideep Mathur to take the envelope from the hand of accused Badri and accordingly, he took the same in his hand. I asked the independent witness to keep the envelope safely with him."
PW14 "The complainant after having a small conversation with the suspect, who was sitting inside the saloon, came towards his car and sat in the Baleno car. After some time, suspect, who was later identified as Badri came to the complainant and he made some hand gesture to ask for money from the complainant and complainant took out yellow envelop carrying the tainted amount and handed over the same to accused Badri. Accused Badri took the envelope from his right hand and he went towards one motorcycle which was standing with the ignition on nearby with the Ct. Jitender riding on the same. Accused Badri sat on said motorcycle as a pillion rider. The accused CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 122/176 Badri was apprehended by the TLO while he was sitting on said motorcycle. TLO caught hold of the right hand of the accused Badri and SI Pradeep caught him his left hand. The accused was challenged by the TLO for having accepted the bribe amount."
7.16 In Ramesh Chander vs. State of Punjab 2005 (2) RCR (Criminal) 330, it has been held that in case, even the shadow witness turns hostile and independent witness was not examined, then the fact of recovery of tainted money is proved and in the absence of any reason for false implication, the conviction can be upheld. Same is the observation in State of UP Vs. Dr. G.K. Ghosh AIR 1984 1453.
7.17 I find no reasons why PW8, PW13 or PW14 would depose falsely against the accused persons or fabricate or forge the record against them. Defence has not been able to explain as to why these witnesses who are themselves government servants would resort to perjury and concoct evidence in order to rope in innocent government servants. It is an absolutely fallacious argument and unreasonable to expect these police officials would go to the length of concocting false evidence for prosecuting & humiliating the accused persons thereby compromising their own conscience in the process. It has been observed in State of U.P. vs. Dr. G. K. Ghosh (supra) as under: "11. It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party namely that he is an interested witness. This is true, but only to an extent a very limited extent. He is interested in the success of the trap to ensure that a citizen, who complains of harassment by a Government officer making a demand for illegal gratification is protected and the role of his department in the protection of such citizen is vindicated. Perhaps it can be contended that he is interested in the success of the trap so that CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 123/176 his ego is satisfied or that he earns a feather in his cap. At the same it must be realised that it is not frequently that a police officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant. In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to expect the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience. The Court may therefore, depending on the circumstances of a case, feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. When therefore besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case."
7.18 Despite detailed crossexamination the defence could not impeach the credit of PW8, PW13 or PW14 even remotely. As already discussed above, merely because PW8, PW13 and PW14 were CBI officials/Inspectors that by itself is absolutely no reason to disbelieve their testimony/deposition. I find no reason why they would depose falsely against the accused persons and the defence could not assign any motive or prove any enmity or grudges which these witnesses might have had to depose falsely against the accused persons. Accordingly reliance upon Prem Singh Yadav Vs. CBI 2011 (2) JCC 1059 Delhi is misconceived as in the said matter the facts on record pointed that the complainant was having grudge against the accused and therefore the accused having been falsely implicated could not be ruled out. Same is not even remotely a case here.
7.19 As regards the conversation in Q2 and deposition of CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 124/176 PW11 and PW13 to the effect that "witness kaha hai witness kaha hai", it has emerged from the consistent testimony of all prosecution witnesses that after acceptance accused no. 2 tried to flee/get away on the bike driven by DW1 but was apprehended by the trap team. It was at that time that may be a member of the trap team, during the commotion which would have ensued upon apprehension of accused no. 2 could not exactly see where the independent witnesses were more so when PW12 was at a distance of 1012 feet and PW11 was 34 shops ahead of the spot and hence inquired about the witness. Nonetheless the fact remains that PW12 did witness the acceptance and so did the other members of the trap team including PW13 and PW14 whose testimony itself is sufficient to bring home the guilt against the accused persons. The relevant portion of cross examination of PW13 in this regard is highlighted as under: "Arvind was at a distance of 10-12 steps away when complainant and accused Badri shook hands with each other. Again said Badri had demanded money by gesture of hand. It is wrong to suggest that no such demand by gesture was made by accused Badri. No pre decided signal was given by the complainant nor he made any missed call to us after the transaction was over. (vol. There was no question of giving any signal or missed call as everything was happening before the team and complainant was aware that the trap team is seeing the entire transaction.)........
Q. Can you tell after how much time after apprehension of accused Badri, independent witness Jaideep Mathur had reached at the place of apprehension of accused Badri ? Ans. The accused Badri immediately after taking the envelope of the bribe amount sat on the bike of Jitender who was standing with his bike nearby.
Independent witness Jaideep Mathur was standing with the bike at a distance of about 10-12 steps away from the place where the complainant handed over the envelope of tainted money. Both the independent witnesses namely, Arvind and Jaideep Mathur were present at the spot where the money was exchanged between the complainant and accused Badri. Q. Did you call the independent witnesses after the transaction CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 125/176 of bribe was over by uttering specific words "witness kahan hai witness kahan hai" ?
Ans. There was no need for specifically calling them as they were at the distance of few steps away from the place of occurrence. However, some team member had said abovementioned words to call the independent witness."
7.20 It was argued by Ld. Defence counsels that though as per the prosecution case and Ex. PW8/A4 there is a reference about telephonic conversation between the complainant and accused no. 2 at about 07.20 p.m. wherein accused no. 2 allegedly informed the complainant that he is in saloon, taking shave but there is no such conversation in Q2, however, I find no merits in the said arguments. The transcript, as discussed above, proves the fact that accused no. 2 was in the saloon and had got his beard shaved. The relevant portion read as "hoon......are yaar kai din ho gaye sahab ne tok diya kal jaate hi bola daadi kyon nahi banwata hai.... Mene kaha kal banwaunga".
7.21 The Ld. Defence Counsels also highlighted other contradictions in the testimony of prosecution witnesses/ prosecution story for example it was argued that though PW13 claimed that investigation was not with him after 18.06.2020, however, on the other hand PW15 claimed that the file was assigned to him only on 29.06.2020. It was argued that in view of the above inconsistent statement prosecution failed to explain as to with whom, the file remained between 18.06.2020 till 29.06.2020 and also failed to bring on record any formal document of handing over/taking over of investigation by PW13 to PW15. As far as this so called contradiction is concerned, suffice would to be say that the defence is unnecessarily harping CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 126/176 on the same. As already discussed these are mere procedural, technical aspects of the investigation and contradictions in them does not affect the merits of the case. Whatever investigation was conducted by PW13 and PW15 was duly explained by them during their testimony. It is not as if there is certain vital part of the investigation which is missing or has gone unexplained. In fact it is writ large from the record that no substantive investigation was conducted during the period 18.06.2020 to 29.06.2020. Almost the entire investigation required to bring home the guilt against the accused persons was duly concluded on 17.06.2020 itself and only the technical/expert advise remained to be collected.
7.22 It was also argued that the bribe money/amount/GC notes after treating them and the envelope in which they were kept with phenolphthalein powder were given to the complainant in a white cloth bag, however, the said cloth bag was never seized by PW13 and PW15 also did not make any inquiry from PW13 as regards the said white coloured cloth bag. It was argued, while relying upon Anand Swarup Vs. State 1988 Cr.LJ. 756 Delhi that the same is an important missing link which creates doubt upon the prosecution case. As far as this argument is concerned, once the acceptance of the bribe amount/tainted money and its recovery from accused no. 2 stands duly proved on record, merely because the white colour cloth/cotton bag in which the envelope containing the bribe amount/tainted money was kept was not produced is of CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 127/176 absolutely no significance. The use of white colour cloth/cotton bag was only to keep the envelope containing the bribe amount/tainted money in the same till the time its demand and acceptance by accused no. 2. The moment accused no. 2 demanded and accepted the same the offence was complete. Whether the bag was seized or thrown away is of no importance as the said bag is not a vital/crucial piece of evidence. Furthermore the facts of the relied case are completely different as in that case there was no eye witness of the acceptance and even the presence of the phenolphthalein powder was not detected from left hand pocket of the accused where the demanded money was allegedly kept.
7.23 The contradictions as pointed out and noted are insignificant when juxtaposed with the vivid & eloquent narration of incriminating facts proved & established beyond doubt. Given the time gap between the verification, trap proceedings vizaviz the deposition of the witnesses, minor contradictions on some details are bound to occur and are natural. The witnesses are not required to recollect and narrate the entire version with photographic memory notwithstanding the hiatus and passage of time. Picayune variations do not in any way negate and contradict the main and core incriminatory evidence of the demand of bribe, reason why the bribe was demanded and the actual taking of the bribe that was paid, which are the ingredients of the offence under Sections 7 of the PC Act, that as noticed above and hereinafter, have been proved and established beyond reasonable doubt. Documents prepared CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 128/176 contemporaneously discussed above affirm the primary and ocular evidence.
7.24 As discussed above the right hand wash of accused no. 2 was taken in a glass bottle and the same was sealed by the CBI team. It was sent for analysis to CFSL and a positive report was received for presence of phenolphthalein powder i.e. Ex. PW9/A. Though ld. Defence counsels vehemently argued that PW9 did not give any reason for arriving at the said opinion/report, however, I find no merits in the said arguments. PW9 explained in detail in the report Ex. PW9/A as well as during her deposition as to how the exhibit was analyzed when she deposed that "one sealed glass bottle marked as RHW was examined by me by physio-chemical methods, chemical tests, UV visible Spectrophotometry and thin layer chromatography technique". No doubt PW9 admitted that she has not mentioned the procedure adopted by her for conducting thin layer chromatography examination (TLC) in her report Ex. PW9/A, however, she stated that she has mentioned the said procedure in her worksheet and though the worksheet was not annexed with the report Ex. PW9/A, nonetheless, the defence did not even once call upon PW9 to produce the said worksheet. Had the same been done and had PW9 failed to produce the worksheet then only the things would have been entirely different. In the absence of the same I find no reason to disbelieve report Ex. PW9/A or the deposition of PW9.
7.25 Though the arguments were also raised that prosecution failed to prove the custody of the exhibits between CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 129/176 24.07.2020 till 29.07.2020, however, PW9 categorically stated during her cross-examination that the exhibits were received in the chemistry division, CFSL on 24.07.2020 by Sh. Bharat Bhushan, Senior Scientific Assistant and they remained in the custody of HoD Sh. V.B. Ramteke from 24.07.2020 till 29.07.2020. She had also deposed that when she examined the exhibit/glass bottle, the same was in duly sealed condition. Hence the exhibit remained in safe, sealed & untampered condition and the defence could not prove anything to the contrary even remotely.
7.26 It was also argued that the TLC plate used for conducting TLC examination was not preserved, however, there is no necessity to preserve the same as was explained by PW9. Even otherwise the court is concerned with the report and not the apparatus/instruments etc. used for examination unless the defence is able to prove that they were defective or could give an incorrect report. It was also argued that standard solution of phenolphthalein is used in TLC examination so mixing of standard solution with questioned solution cannot be ruled out. These are mere hollow arguments and have no basis/merits whatsoever. I find no reason why PW9 would give an incorrect report. The defence could not prove on record any motive or consideration whatsoever which might have weighed with PW9 to give a false report. Moreover and most importantly, it stands proved through the testimony of independent witnesses, CBI officials as well as DW1 that the solution had turned pink when right hand wash of accused no. 2 was taken after the trap proceedings. The same so turned pink on account of presence of CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 130/176 phenolphthalein. So no question arises of any mixing whatsoever by PW9. This also takes care of the defence argument as regards non mentioning of Rf of standard phenolphthalein or the questioned solution. No doubt when the solution was of very light pink colour when it was examined by PW9 and it became more lighter when it was produced in the court but the said was solely on account of chemical changes with the passage of time, which is a natural phenomenon. At this stage it will be worthwhile to go through the observations made in State of UP Vs. Zakaulla (supra) wherein it has been held as under:-
" The reasoning of the High Court that reliability of the trap was impaired as the solution collected in the phial was not sent to chemical Examiner is too puerile for acceptance. We have not come across any case where a trap was conducted by the police in which the phenolphtalein solution was sent to the Chemical Examiner. We know that the said solution is always used not because there is any such direction by the statutory public servant would have really handled the bribed money. There is no material discrepancy in the evidence regarding preparation of recovery-memo and the minor contradiction mentioned by the learned single judge is not worth considering."
7.27 Therefore from the testimony of the independent witnesses, the trap team and the other material available on record i.e. Q2, Ex. P9 etc. the acceptance of the tainted money/bribe amount stands duly proved on record.
7.28 It was also one of the arguments of the Ld. Defence counsels that the position of the independent witnesses having not been shown in the site plan Ex. PW8/A5, which is of vital importance in criminal matters, that by itself is sufficient proof of the fact that they had never joined the investigation/trap CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 131/176 proceedings and they were not present at the spot, where the trap was allegedly laid and the tainted money was handed over, recovered from accused no. 2. It was argued that had they joined the proceedings, their position should have been definitely shown in the site plan. It was argued that even the position of subordinate staff has not been shown in the site plan. It was argued that no site plan of the alleged place of demand has been brought on record. Reliance was placed upon State Vs. Sunil @ Sagar 2015 (3) LRC 380 Delhi (DB) in this regard. It was further argued that Ex. PW8/A5 having been admittedly prepared on the statement of the witnesses and the fact that it bears their signatures makes the same inadmissible in evidence as it is hit by Section 162 Cr.P.C. Reliance was placed upon State Vs. Bhawani and ors 2003 (3) JCC 1343 SC to buttress the arguments. However, I find no merits in the said arguments.
7.29 It is settled law, as discussed above in detail, that the accused cannot be given benefit of the defective investigation or else it would amount to playing in the hands of the investigating agency, if the investigation is designedly defective. No doubt site plan is material document and a vital part of investigation but importance of the site plan depends upon case to case and merely on account of non preparation of the site plan or some defect in the same, the otherwise consistent, proved case of the prosecution, cannot be outrightly rejected. No doubt position of the independent witnesses or for that matter of subordinate staff is not mentioned in the site plan but that by itself does not prove that the independent witnesses were not present at the time of trap proceedings. As far as the subordinate/ ancillary staff is CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 132/176 concerned, the staff was merely present to assist the IO and the other CBI officials during the trap proceedings. Their role was only perfunctory. The site plan does depicts the position of the Trap Laying Officer, the Verifying Officer, the complainant and other officials i.e. Inspectors, Sub Inspectors of CBI. In the site plan position of around 12 officials, Inspectors/Sub Inspectors of CBI at the time of trap has been duly mentioned and it was not essential to mention the position of the subordinate staff as well in the site plan.
7.30 As far as independent witnesses are concerned, no doubt their position is not shown in the site plan Ex. PW8/A5 but their signatures are there on the same which proves their presence at the spot at the time of the trap proceedings. As discussed above, defence could not even remotely prove that the independent witnesses were not present at the spot or that they were present at somewhere else. Without proving the said fact the defence cannot simply agitate that the independent witnesses were not present at the spot, merely because their position has not been shown in the site plan. Things would have been entirely different had the defence been able to establish the presence of independent witnesses at some other place and not at the place where the trap was laid. This is more so when the independent witnesses and other prosecution witnesses have consistently deposed about their presence at the spot at the time of trap proceedings.
7.31 In fact their positions could not have been mentioned in the site plan. As far as PW11 is concerned, as CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 133/176 explained by him he had moved a few shops ahead to avoid any suspicion in the mind of DW1 who was present at the spot and on the lookout on behalf of accused no. 2. PW12 was also at a distance of 10-12 steps. Most importantly the site plan was not prepared at the spot and the same was prepared near PS Vijay Vihar as has been proved by PW11 to PW13 and PW8, who prepared the site plan. May be on account of oversight at that moment, their position could not be mentioned on the site plan. For such a lapse on the part of Verifying Officer PW8 SI Pradeep the prosecution story cannot be rendered unbelievable. If undue weightage is given to such technicalities then it will lead to travesty of justice. As far as non preparation of the site plan of the place of demand i.e. PS Vijay Vihar is concerned, the position of PS Vijay Vihar being fixed/ascertainable, there was no need to prepare site plan of the said place. Furthermore the Verifying Officer and independent witness having not entered PS Vijay Vihar, no site plan could be prepared by the Verifying Officer as he was not aware about the exact position/place of meeting in PS Vijay Vihar. Had he prepared the site plan on the statement of PW10, the same would have been hit by section 162 Cr.P.C.
7.32 As far as reliance upon Sunil @ Sagar (supra) is concerned, considering the nature of the trial, even if there was/is no site plan in the present matter, there is sufficient material on record to bring home the guilt against the accused persons and the shortcomings in the site plan cannot weigh over the material/substantive evidence. As far as reliance upon Bhawani and ors (supra) is concerned, there is nothing on CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 134/176 record to suggest that the site plan was prepared by PW8 on the basis of statement of witnesses. The same was prepared by PW8 on his own and accordingly no question arises of the same being hit by Section 162 Cr.P.C.
7.33 The Ld. Defence counsels also vehemently argued that the recovery memo Ex. PW8/A4 of the trap proceedings is a forged & fabricated document, ante-timed and the signatures of the witnesses/trap team were obtained subsequently. While arguing the said point, the Ld. Defence counsel drew attention to page no. 1 & 2 of the recovery memo which contains signatures of only 11 witnesses/trap team members whereas the remaining pages bear the signatures of 13 witnesses/trap team members. Suffice would be to say that merely because first two pages of the recovery memo bears signatures of only 11 witnesses does not in any manner renders the recovery memo forged and fabricated. The fact that it bears the signatures of 11 witnesses/trap team members itself sufficiently establishes its authenticity, genuineness more so when all its pages including first two pages contain the signatures of the complainant and the independent witnesses. It stands duly proved from the consistent testimony of prosecution witnesses, including independent witnesses, that Ex. PW8/A4 was prepared immediately after conclusion of the trap proceedings. Probably it was on account of oversight, human error that signatures of remaining witnesses/trap team members was not obtained on the first two pages. Similarly merely because PW11 claimed that Ex. PW8/A4 was prepared at PS Vijay Vihar whereas as per the prosecution case the same was prepared at CBI office is of no CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 135/176 consequence. It is a minor discrepancy, bound to occur with passage of time & lapse of memory and it does not even remotely create any doubt upon the prosecution case.
7.34 While relying upon S.K. Bhatia Vs. CBI 2019 (4) JCC 3424 Delhi it was argued by Ld. Defence Counsels that the trap proceedings and for that matter the verification proceedings were not videographed for reasons best known to the CBI and that had the same been done it would have exposed the truth and rendered the prosecution case as false & frivolous. It was also argued that the directions issued by the Hon'ble Supreme Court in Vineet Narain and ors Vs CBI (1998) 1 SCC 226 and CBI Vs. Thommandru Hannah etc. 2021 (4) RCR (Cr) 456 SC were not followed and the CBI failed to strictly follow the CBI Crime Manual which provides for detailed procedure as regards the mode & manner in which complaints against public servants are to be dealt with. It was argued that even the CVC Manuals was not followed. I have considered the said case laws carefully. The directions were issued in Vineet Narain's (supra) case to introduce more transparency and accountability in the functioning of the CBI as well as to ensure that CBI functions effectively, efficiently and as a non-partisan agency. No doubt the said directions should have been followed in letter & spirit, however, merely because the same was not done and the verification & the trap proceedings were not videographed or photographed, that by itself not affected the prosecution case in any manner. There is ample oral, documentary and circumstantial evidence on record against the accused persons. Moreover had the same been done, which would have meant use CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 136/176 of more technical devices, it would have greatly enhanced the scope, the probabilities of discrepancies which are bound to occur with use of such devices, technology, instruments etc. If one thinks it practically the use of cameras for videography or photography of the verification and trap proceedings would make those proceedings, which are to be conducted in a discreet manner so as to avoid failure/botching up of honest/truthful cases, highly conspicuous and alert the person who is being verified/investigated and fail them at the very inception.
7.35 The police, CVC manuals are prepared to generalize the rules and procedures of the investigation with an idea of bringing in uniformity and reliability in the proceedings of the investigation. It is expected of the police officers to follow such instructions/ directions contained in the manuals. However, these manuals are not statutory documents, they are merely directory in nature. Non-compliance of the directions/guidelines though should be avoided, however, it does not invalidate the proceed- ings completely. Such defaults in the prosecution case at best can be termed as irregularities and not illegalities going to the root of the case. In so far as judgment in 'Vineet Narayan' (supra) is concerned, the judgment says that the consequence of not follow- ing the manual is disciplinary inquiry. The judgment does not say that such default would per se invalidate the investigation. It was for the accused persons to explain how the non-recording of the proceedings has affected them adversely but they miserably failed to do so.
7.36 While relying upon Anil Sharma Vs. State of CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 137/176 Jharkhand 2004 (3) RCR (Cr.) 774 SC and State of Haryana Vs. Ram Singh 2002 (1) JCC 385 SC it was argued that the law is well settled that defence witnesses are entitled to equal treatment at par with the prosecution witness and therefore there is no reason to disbelieve DW1 Constable Jitender or his testimony to be a tainted one more so when his presence at the spot stands admitted by the prosecution. It was argued that DW1 has shattered the prosecution case completely.
7.37 As far as DW1 Constable Jitender is concerned, his presence at the spot stands duly admitted and proved on record. DW1's testimony in fact proves several crucial facts and supports the prosecution case. Firstly, it proves that complainant Sunil Vats and Constable Badri were present at the spot in terms of the prosecution case. Secondly, it proves that Ct. Badri/accused no. 2 had indeed dealt with/handled/touched the envelope containing the tainted money, which was smeared/treated with phenolphthalein powder, though not in the manner as claimed by DW1. The relevant portion of his testimony in this regard read as "Thereafter I saw Ct. Badri handing over said person at the rear seat one envelope which he lifted on the dashboard of the said car on the asking of said people". I have no doubt whatsoever that Ct. Badri had not lifted the envelope from the car dashboard as was claimed by DW1 but he had accepted the same from the complainant pursuant to the conspiracy hatched by him and accused no. 1. DW1's and PW10's claim that CBI officials had asked accused no. 2/Constable Badri to pick the envelope from the car's dashboard and handover the same to them is a blatant lie, falsehood. The CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 138/176 said fact not only stands belied from the testimony of PW12, PW13 and PW14 who categorically proved the demand and acceptance by accused no. 2 but the technical evidence i.e. CDRs also proves the demand and acceptance.
7.38 Thirdly and most importantly, DW1's testimony proves the post trap proceedings and that Ct. Badri's hand wash turned the solution pink as the envelope which he had taken/obtained from complainant had been smeared by the CBI team with phenolphthalein powder during the pre trap proceedings. It will worthwhile to point out that as against DW1's deposition, PW10 had categorically denied the hand wash proceedings of accused no. 2. This itself is ample proof of the extent to which PW10 was won over by the accused persons and that is why he deposed falsely. This also takes care of the defence arguments that the prosecution witnesses including PW11 and PW12 could not prove that the pink solution after demonstration of the phenolphthalein powder was thrown away and that it was the same solution which was used by the CBI, sent to CFSL i.e. Ex. P9. Once the right hand wash of accused no. 2 was conducted after the trap was successfully laid and the solution turned pink, I completely fail to understand why the CBI would plant the solution used in demonstration upon accused no. 2. Furthermore it also puts to rest the defence emphasis on the following statement of PW12 "I cannot admit or deny the envelope with the tainted money was asked to be pass over to the TLO through accused Badri while he was sitting in the car and the TLO was standing outside the car." The wash proceedings having been already conducted, the recovery duly CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 139/176 proved, the above isolated statement of PW12 does not help the defence in any manner whatsoever. The said statement was made by the witness after he had already stated that the right hand wash of accused no. 2 was obtained and the suggestion as above was given only to confuse the witness, but the defence failed in its efforts miserably. Things would have been entirely different had PW12 admitted the above suggestion or stated that the same happened before the recovery of the tainted money from accused no. 2. The relevant portion of testimony of DW1 in this regard read as under:-
"Thereafter we both to make to sit in Innova Car. The said innova car was stopped 100 meters away from PS Vijay Vihar. Inspector Shyam Rai came out of innova car and opened the dikki of said car and prepared some solution in a glass container and made Badri to dip his hand in said container upon which, the colour of said solution turned pink and said solution was transferred in some glass bottle."
7.39 Fourthly, the testimony of this witness duly establishes the prosecution case that there was no occasion for Ct. Badri/accused no. 2 to be present at the spot but for acceptance/collection of the tainted money/bribe amount. The relevant portion of cross-examination of DW1, by Ld. PP for the CBI in this regard read as under:-
"Ct. Badri was Chitha Munshi in PS Vijay Vihar and he was supposed to be in the police station at the time when I met him in the Main Market Budh Vihar. I did not ask Ct. Badri about the reason of his being there in the market of Budh Vihar at that time nor did he tell me about any such reason."
7.40 In fact though not sent for trial by the CBI, however, there is enough evidence on record which proves that Ct. Jitender too was part of the criminal conspiracy and was hand in glove with the accused persons. DW1's presence at the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 140/176 spot was not a mere coincidence but it was part of the conspiracy hatched by accused no. 1 and 2. Though DW1 was on patrolling duty in beat no. 5 Budh Vihar Phase 1 but admittedly he also visited main market Budh Vihar i.e. the spot where the trap was laid. He did not offer any explanation for having visited main market Budh Vihar as the same was not in his beat. As stands proved on record, through the testimony of prosecution witnesses, he was there in plain clothes i.e. not in uniform. If he was on beat duty, he should have been in uniform. DW1 was at the spot to keep an eye on the complainant and inform Ct. Badri/accused no. 2 about any suspicious activity which he may notice and which might get him and for that matter accused no. 1 in trouble. They were vary of being trapped while accepting the tainted money/bribe amount and DW1 was roped in to rule out the same and alert Ct. Badri in case he noted anything suspicious about/around the complainant and had DW1 done so, Ct. Badri could not have accepted the bribe amount/the tainted money. PW11, whose testimony has been discussed above, has categorically deposed that Constable Jitender, who was on the motorcycle, whose ignition was on, was looking here & there in a suspicious manner. It was only after DW1 Ct. Jitender telephonically informed Ct. Badri/accused no. 2 that he did not notice anything suspicious that Ct. Badri came out of the saloon and demanded & accepted the amount from the complainant. The said fact stands duly proved from their CDRs and the FSL result. In fact DW1's motorcycle was the get away vehicle to be used by Ct. Badri/accused no. 2 after acceptance of the bribe amount. It stands proved from the testimony of the prosecution witnesses including independent witnesses that after acceptance CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 141/176 of the bribe amount/tainted money Ct. Badri/accused no. 2 sat as a pillion rider on the motorcycle which DW1 was riding. In fact the recorded conversation in Q2 and transcript Ex. PW10/C proves that it was only after DW1's arrival at the spot that accused no. 2 accepted the bribe amount/tainted money. The relevant portion of the transcript, discussed in detail above, read as under:-
"Complainant: de jau Badri: aa raha hai oo jitender bhai aa raha hai 2 minute ruk jaa..... nahi to......chalengey."
7.41 PW11, PW12 and PW13 have categorically proved that DW1 was present at the spot to keep an eye for any suspicious activity for Ct. Badri/accused no. 2 and to provide him a get away vehicle after the acceptance. The relevant portion of their testimony in this regard read as under:-
PW11 "When we had taken position around the saloon, I noticed that one person in plain clothes was on the yellow colour police bike and the other person, to whom the complainant had talked over phone was still inside the saloon. The person on the bike was looking here and there in a suspicious manner and hence, I moved ahead till 3-4 shops."
PW12 "After taking said yellow envelope from the complainant, Ct. Badri proceeded towards a bike which with ignition on and on said bike, some other person was sitting on the driver seat." PW13 "Complainant parked his vehicle outside the saloon and went inside saloon to meet accused Badri. However, he came out of the saloon immediately thereafter, and started waiting outside while sitting in his car which was parked near the saloon. Thereafter, a motorcycle of Delhi Police with one constable in uniform came near the car of the complainant and stood in the opposite direction of the car while keeping the motorcycle ignition on. After 1-2 minutes, accused Badri came out of the saloon and reached near the car of the complainant and raised demand for money by gesture with right hand. The complainant CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 142/176 thereafter, took out the yellow envelop carrying the tainted amount and handed over the same to accused Badri, who took the envelop with his right hand. Thereafter, accused Badri sat on the rear seat of motorbike which was already there near the complainant's car in starting mode. As soon as the accused Badri sat on the motorbike with the envelope in his hand, I immediately rushed to the spot and caught hold of him from the waist."
7.42 Admittedly after the trap, his phone as well as that of Ct. Badri/accused no. 2 was seized by PW13 Insp. Shyam Rai vide Ex. PW8/A4 and the same were produced during trial as Ex. M-1/Ex. P-7 and Ex. M-2/Ex.P-8 (colly). CDR, CAF, Cell ID chart of accused no. 2 i.e. Ex. PW3/A (colly) and that of DW1 Constable Jitender i.e. Ex. PW4/A unambiguously establishes that the calls were exchanged between them just immediately before the trap, demand & acceptance of the tainted money by Constable Badri/accused no. 2. Ex. PW3/A also proves that immediately before these calls, calls were exchanged between Constable Badri/accused no. 2 and the complainant on that day. This proves that after the place and meeting was confirmed by Constable Badri who called the complainant near the saloon Budh Vihar main market, Constable Badri asked Constable Jitender (DW1) to keep an eye on the complainant as discussed above. This fact stands further fortified from the following deposition of PW12:
"The conversation between Ct. Badri and said other person who name later on, revealed to be Jitender, which was recorded in the in built memory of the phone of anyone of these two was also heard by operating the phone.
7.43 The relevant deposition of PW13 in this regard read as under:-
When I had interrogated Ct. Jitender Kumar, during h is interrogation, he told that I have no connection or knowledge CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 143/176 regarding the bribe transaction. When I verified mobile phone of accused Badri Prashad Yadav, I found recording in the inbuilt memory of the mobile phone of accused Badri prashad Yadav relating to the call of Ct. Jitender Kumar. I heard said recording and found that accused Badri asked Ct. Jitender Kumar about the report. Ct. Jitender informed that he was sitting in the car using the mobile phone, which clearly showed that Ct. Jitender and accused Badri were having the knowledge of bribe transaction."
7.44 As per the CFSL report Ex. PW6/B, mobile phone of accused no. 2 Ex. M-1/Ex. P7 contained 32114 audio files in the folder "Record/Call" and one of the file was namely "Ct Jitender 2020-06-17 19-29-08" of duration of 37.247 seconds which was considered for examination and marked as exhibit M- 1(1). It was the recording of the call exchanged between accused no. 2 and DW1 at a time when accused no. 2 was at saloon and DW1 was keeping a watch for him, just before the acceptance of the tainted money/bribe amount. The said file contained clear audible voice/utterances/words of/spoken by Constable Jitender such as "Hain, Report theek hai....... "Gaadi Mein Baitha"
"Baat kar" "Phone" and "Nu kaho" etc. which were marked as M-1(1) (j1) to M-1 (1) (j5).
7.45 Similarly, internal memory of mobile phone of DW1 Ex. M-2/Ex. P8 contained 10028 audio files in the folder "Recordings/Call Recordings" and one of the file was namely "Ct Badri V V-2006171929" of duration of 37 seconds which was considered for examination and marked as exhibit M-2(1). The said file contained clear audible voice/utterances/words of/spoken by Constable Jitender such as "Eib", "Baat kar raha"
etc. which were marked as M-2(1) (j6) to M-2 (1) (j7) and selected for comparison, examination/voice spectrographic CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 144/176 analysis with S-3 i.e. the sample voice of Constable Jitender and found to be similar in linguistic & phonetic features and accordingly PW6 gave a report that the voice contained in M-1 (1) (j) and M-2 (1) (j) is the probable voice of Constable Jitender.
7.46 All this unambiguously proves that it was all pre- planned and that DW1 was hand in glove with the accused persons but for reasons best known to the CBI/prosecution he was not charge sheeted.
7.47 It was argued on behalf of the accused persons that in the present matter only one theory is coming forward which is pointing towards the innocence of the accused persons, nonetheless, the law is well settled that even if two views are possible then the one which is favourable to the accused should be considered by the court. It was argued that there is no evidence of demand or acceptance by the accused persons. Reliance was placed upon Sohan Singh (supra) and State Vs. K Narsimhachari AIR 2006 SC 628 in this regard.
7.48 It was further argued that despite the presumption u/s 20 of the PC Act the prosecution is duty bound to prove its case beyond reasonable doubts and accused is required to raise a probable defence only. It was argued that the court is required to consider the explanation offered by the accused only on the touchstone of probability and not on the touchstone of proof beyond all reasonable doubts. It was argued that demand and acceptance of bribe is the sine qua non for attracting the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 145/176 provisions of section 7 of the PC Act and in the case at hand the said ingredients are completely lacking and therefore once the foundational facts of demand and acceptance could not be proved by the prosecution, no presumption u/s 20 of the PC Act arises against the accused persons. Reliance in this regard was placed upon Punjab Rao Vs. State 2002 (10) SCC 371, State of Maharashtra Vs. Dnyaneshwar Rao 2009 (4) RCR (Cr) 217 SC and V. Sejappa (supra). However I find no merits in their arguments.
7.49 In the case at hand, from the evidence on record the foundational facts essential to bring home the guilt against the accused persons stands duly established. On analysis of the evidence, the material available on record only one conclusion can be drawn i.e. they are guilty. There is ample evidence, as discussed in detail above, of demand and acceptance. No further proof is/was required to bring home the guilt against the accused persons. There is not one but plethora of evidence proving the demand and acceptance. The independent witnesses, the official witnesses and the expert opinion/CFSL report as well as the other technical evidence points only in one direction i.e. demand of bribe and its acceptance. There is ample corroboration ocular as well as documentary in the form of voice recording/expert report/CDRs etc. which has been discussed at length above. At this stage, it will be worthwhile to highlight the following observations of the Hon'ble Apex Court in Subramanian Swamy vs Manmohan Singh & Ors. MANU/SC/0067/2012:
"Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 146/176 concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti- corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it."
7.50 The prosecution has been able to establish the foundational facts beyond any iota of doubt. There is ample proof of demand and acceptance and it is well settled law that though proof beyond reasonable doubt should be adduced in all criminal cases, however, it is not necessary that the same should be perfect. In fact there cannot ever be a perfect proof in any criminal trial. Perfect proof can only exist in ideal situations which hardly exists. Investigation and collection of evidence is a cumbersome process and there are bound to be minor loopholes and lacunas even in the best of the investigation. But if the minor loopholes, contradictions, lacunas do not shake the basic foundation and there is sufficient material/substantive evidence, those loopholes and contradictions can be and rather should be easily ignored or else it will defeat the ends of justice. At this stage, it will be worthwhile to highlight the following observations made in Inder Singh & Anr vs The State (Delhi Admn.) 1978 AIR 1091:-
"Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is, too imperfect. One wonders whether in the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 147/176 meticulous hypersensitivity to eliminate a rare innocent from being punished, many, guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up ? Because the court asks for manufacture to make truth look true ? No, we must be realistic.
"We are satisfied that the broad features of the case, the general trend of the testimony and the convincing array of facts which are indisputable, converge to the only conclusion that may be reasonably drawn, namely, that the accused are guilty. Theoretical possibilities may not shake up, fancied weaknesses may not defeat, when verdicts are rested on sure foundations. Stray chances of innocence haunting the corridors of the court cannot topple concurrent findings of guilt.
We feel unhappy that, while infirmity in some aspect or other of this prosecution case should not invalidate the culpability which is otherwise, veraciously made out, tragic occurrences like this one......"
7.51 As against the ample proof of demand and acceptance, no explanation has been put forward by the accused persons either for demand or the acceptance. The meeting between the complainant and accused no. 1 stands duly proved from the complaint, the verification memo and the testimony of the Verifying Officer as well as the independent witness apart from the technical evidence and the expert report. It was in this meeting on 16.06.2020 that the demand was raised by accused no. 1. The demand further stands duly proved by the recordings/transcripts. As discussed there is no plea of alibi that accused no. 1 was not present at the police station at the time of meeting or that he was present somewhere else. Same is the position qua accused no. 2 who was called during the meeting and pointed out as the person to whom the bribe amount was to be given by the complainant on the next day. As regards the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 148/176 acceptance, the fact that complainant and accused no. 2 met on the next day stands duly proved. The calls exchanged and proved on record further corroborates the said meeting. The acceptance was duly witnessed by independent witness and other eye witnesses/official witnesses and also stands proved through the expert evidence/hand wash/CFSL report. The bribe amount recovered was the same as was smeared with phenolphthalein powder. Presence of accused no. 2 at the spot, where the trap was laid was only for the purpose of collection, acceptance of the bribe amount or else he had no reasons to be there. In fact defence has not been able to even remotely explain as to why complainant had met accused no. 1, why and how he was having the phone number of Constable Samay Singh & Constable Badri/accused no. 2, why the calls were exchanged between them and what he was doing at the place where the trap was successfully laid as he had no reason whatsoever to be there.
7.52 None of the accused person can offer any explanation for their illegal activities i.e. demand and acceptance of the bribe. I fail to understand what defence accused no.1 has in his favour to justify the demand and similarly what explanation can accused no. 2 furnish for the acceptance of the bribe/undue advantage. In the Punjabrao (supra) the facts were entirely different as it was an undisputed position that the alleged person/Patwari was collecting loans in a collection campaign which is not even remotely the case in the present case.
7.53 As far as V. Sejappa (supra) is concerned, it is a settled law that once the foundational facts are proved a presumption would raise u/s 20 of the PC Act and the burden CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 149/176 now rests upon the accused to displace the said statutory presumption, however, in the case at hand the accused persons miserably failed to displace/rebut the said presumption.
7.54 Though Ld. Defence counsels while relying upon the above case law vehemently argued that as the complainant turned hostile, the demand could not be proved by the prosecution. It was argued that the evidence/testimony of the independent witness especially PW12 Sh. Jaideep Mathur, through whom the prosecution attempted to prove the acceptance of the tainted amount/bribe money, is otherwise not foolproof, is not sufficient to bring home the guilt against the accused persons. However, I find no merits in the arguments of Ld. Defence counsels. As far as complainant's turning hostile is concerned, said aspect has been dealt in detail above. Merely because the complainant turned hostile, that does not tantamount to ignoring his testimony in toto. His testimony, as highlighted above coupled with the transcript, the recorded conversation and testimony of Verifying Officer PW8 and PW12 Sh. Jaideep Mathur sufficiently establishes the demand of the tainted/bribe amount. It is not a case of mere acceptance/receipt of the tainted amount but the said acceptance was pursuant to the demand raised. In the case law relied upon by Ld. Defence Counsel the facts were entirely different. In the said case when the amount was paid to the accused/the alleged, the complainant categorically told him that he was returning the amount which he had taken from him/ accused for purchasing the diesel whereas in the case at hand there was demand by accused no. 1 as is evident from the recorded conversation with further directions to CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 150/176 handover the amount to accused no. 2 on the next day and accused no. 2 accordingly accepted the amount from the complainant which was ultimately recovered from him during the trap proceedings.
7.55 As far as reliance upon Ronal Kriprano Vs. State 2001 (3) RCR (Crl.) 766 SC and Dr. S.L. Goswami Vs. State 1972 SCC (Crl.) 258 SC by the Ld. Defence counsels is concerned, as discussed above, suffice would be to say that the prosecution has been able to establish the guilt against the accused persons beyond reasonable doubt and the defence has not been able to give any palpable and in fact cannot give any explanation or justification whatsoever either for demand or the acceptance. There is just no question of any explanation offered by the accused persons which can create remotest of doubt on the prosecution case.
7.56 Though while relying upon N. Sunkanna Vs. State of Andhra Pradesh Criminal Appeal no. 1355/2015 arising out of SLP (Crl.) no. 2958/2011 dated 14.10.2015, Parmanand Vs. CBI Criminal Appeal no. 132/2004 dated 06.07.2013 and Selvaraj Vs. State of Karnataka Criminal Appeal no. 1172/2008 dated 18.08.2015 it was additionally argued on behalf of accused no. 2 that mere possession and recovery of currency notes from accused no. 2, without proof of any demand will not bring home the offence u/s 7 of the PC Act against him, however, I find no merits in the same. As discussed above in detail the acceptance by accused no. 2 was as per the direction/instructions and in conspiracy with accused no. 1. Accused no. 2 was called by CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 151/176 accused no. 1 at the time when he raised the demand from the complainant on 16.06.2020 and he directed the complainant to pay the amount on the next day to accused no. 2, which accused no. 2 duly accepted on 17.06.2020. It was not by mere chance or coincidence that complainant/PW10 had met accused no. 2 at the spot but their presence at the spot where the trap was laid was only for the purpose of delivery and acceptance of the tainted money, pursuant to the demand raised just a day before by accused no. 1 and for no other reason. At the time of acceptance accused no. 2 was duly aware as regards the nature of amount he was accepting i.e. the same was bribe. The acceptance and the recovery of the tainted money is not divorced from the circumstances in which it was paid but the same is closely/tightly knit and directly connected with the demand raised by accused no. 1.
7.57 It was argued that the complainant had also deposed that he had informed the CBI team that accused no. 2 had not demanded any bribe from him but the CBI officials asked him to keep mum and categorically denied that accused no. 2 had demanded the bribe by gesture or that he had accepted the envelope containing the tainted amount. It was argued that in view of the above statements of PW10 neither the demand nor the acceptance could be proved. Reliance was place upon Kanti Prasad Tyagi Vs. State of Delhi 2014 (3) RCR (Cr) 570 Delhi by the Ld. Defence counsels in support of the arguments. Why the complainant turned hostile has been discussed in detail above. Fact remains that he was won over by the accused persons and hence deposed falsely. Reliance upon Kanti Prasad CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 152/176 Tyagi (supra) is of no help to accused no. 2 as in the case at hand the demand was duly recorded in Q1, the acceptance stands proved on record through the ocular testimony of the prosecution witnesses & is also evident from Q2 as has been discussed in detail and the technical, expert evidence i.e. CDRs, FSL result further proves that there was specific demand and categoric, conscious acceptance. The demand by accused no. 1 was by word of mouth and the acceptance by accused no. 2 on the next day was only in furtherance of the said demand. At the time of acceptance there was no requirement of a fresh demand by accused no. 2 but accused no. 2, as is evident from Q2, did raise the demand again when he said "Aaja phir de de wo saaman". This "saaman" was nothing but the bribe amount. If it was something else then it was for accused no. 2 to explain what it was but he miserably failed to do so. Furthermore as proved by PW12, as discussed above, accused no. 2 came to the car of the complainant, accepted the amount and went to towards the bike which was driven by DW1. The fact that the calls were exchanged between accused no. 2 and the complainant just before the acceptance, the fact that the complainant went to the spot, as decided/directed by accused no. 2 and the presence of accused no. 2 at the spot is ample proof of the fact that he was there to accept the bribe amount and had duly accepted the same as stands proved. It is reiterated that there was no occasion for the complainant and accused no. 2 to be in contact with each other, to make calls, to meet at the trap spot as neither they were related nor they were friends. He was there, as discussed above in detail, merely to collect the bribe amount.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 153/176 7.58 Though Ld. Defence counsels also relied upon Sunil Kumar Sharma Vs. State (CBI) 2007 (3) Crime 160 Delhi, T. Satyanarayana Murthy Vs. The District Inspector of Police and anr 2015 (4) JCC 2674 and C. Sukumaran Vs. State of Kerala 2015 (2) JCC 1322, however, as the demand & acceptance stands duly proved the said case law do not come to the rescue of the accused persons. There is due, ample corroboration of both the demand and acceptance as has been discussed in detail.
7.59 At this stage it will be worthwhile to highlight the observations made by the Hon'ble Supreme Court in T. Shankar Prasad (supra) with regard to presumption u/s 4 (1) of the Prevention of Corruption Act 1988 which corresponds to section 20 of the amended Prevention of Corruption Act 1988:-
"Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in Section 4 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The presumptions falling under the former category are compendiously known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression "shall be presumed" is employed in Section 4(1) of the Act, it must have the same import of compulsion.
When the sub-section deals with legal presumption, it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 4 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 154/176 the Evidence Act. (See M. Narsinga Rao v. State of A.P. (2001 (1) SCC 691).
Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911 (1) KB 988) observed as follows:
"Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion".
The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business vis-`-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.
For the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra (1998 (7) SCC
337) "A presumption can be drawn only from facts and not from other presumptions by a process of probable and logical reasoning".
Illustration (a) to Section 114 of the Evidence Act says that the Court may presume that "a man who is in the possession of stolen goods soon after the theft is either CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 155/176 the thief or has received the goods knowing them to be stolen, unless he can account for his possession". That illustration can profitably be used in the present context as well when prosecution brought reliable materials that there was recovery of money from the accused. In fact the receipt and recovery is accepted. The other factor is the acceptability of the plea of loan, which the High Court itself has not held cogent or credible.
We may note that a three-Judge Bench in Raghubir Singh v. State of Punjab (1974 (4) SCC 560) held that the very fact that the accused was in possession of the marked currency notes against an allegation that he demanded and received the amount is "res ipsa loquitur". In Hazari Lal v. State (Delhi Admn.) (1980 (2) SCC 390) it was observed that there is no requirement to prove passing of money by direct evidence. It may also be proved by circumstantial evidence. In Madhukar Bhaskarrao Joshi v. State of Maharashtra (2000 (8) SCC
571) it was observed thus:
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it".
.......
22.-In State of Madras v. A. Vaidiaratha Iyer (1958 SCR
580) after reproducing the relevant provisions of Section 4 of the Act this Court observed that where it is proved that a gratification has been accepted the presumption under Section 4 of the Act shall at once arise. It is a presumption of law and it is obligatory on the Court to raise it in every case brought under Section 4. In the reported case this Court allowed the appeal of the State of Madras and setting aside the impugned order of acquittal passed by the High Court restored that of the Special Judge convicting the respondent there. In C.I. Emden v. The State of U.P. (AIR 1960 SC 548) the appellant who was working as a local foreman, was CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 156/176 found to have accepted a sum of Rs.375 from a railway contractor. The appellant's explanation was that he had borrowed the amount as he was in need of money for meeting the expenses of the clothing of his children who were studying in school. The Special Judge accepted the evidence of the contractor and held that the money had been taken as a bribe, that the defence story was improbable and untrue, that the presumption under Section 4 of the Act had to be raised and that the presumption had not been rebutted by the appellant and accordingly convicted him under Section 161 IPC and Section 5 of the Act. On appeal the High Court held that on the facts of that case the statutory presumption under Section 4 had to be raised, that the explanation offered by the appellant was improbable and palpably unreasonable and that the presumption had not been rebutted, and upheld the conviction. The appellant contended, on appeal in this Court, inter alia: (I) that the presumption under Section 4 could not be raised merely on proof of acceptance of money but it had further to be proved that the money was accepted as a bribe, (ii) that even if the presumption arose it was rebutted when the appellant offered a reasonably probable explanation. This Court, dealing with the presumption under Section 4, observed that such presumption arose when it was shown that the accused had received the stated amount and that the said amount was not legal remuneration. The word 'gratification in Section 4(1) was to be given its literal dictionary meaning of satisfaction or appetite or desire; it could not be construed to mean money paid by way of a bribe. The High Court was justified in raising the presumption against the appellant as it was admitted that he had received the money from the contractor and the amount received was other than legal remuneration. On the facts the explanation given by the accused, in agreement with the opinion of the High Court was held to be wholly unsatisfactory and unreasonable. In Dhanvantrai v. State of Maharashtra (AIR 1964 SC 575) it was observed that in order to raise the presumption under Section 4(1) of the Act what the prosecution has to prove is that the accused person has received 'gratification other than legal remuneration' and when it is shown that he has received a certain sum of money which was not a legal remuneration, then, the condition prescribed by this section is satisfied and the presumption thereunder must be raised. In Jhangan v. State of U.P. (1968 (3) SCR 766) the above decisions were approved and it is observed that mere receipt of money is sufficient to raise the presumption under Section 4(1) of the Act."
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 157/176 In C.I. Emden v. State of Uttar Pradesh (AIR 1960 SC
548) and V.D. Jhangan v. State of Uttar Pradesh (1966 (3) SCR 736) it was observed that if any money is received and no convincing, credible and acceptable explanation is offered by the accused as to how it came to be received by him, the presumption under Section 4 of the Act is available. When the receipt is admitted it is for the accused to prove as to how the presumption is not available as perforce the presumption arises and becomes operative.
These aspects were highlighted recently in State of Andhra Pradesh v. V. Vasudev Rao (JT 2003 (9) SC 119)."
7.60 In Lokeman Shah And Anr vs State of West Bengal AIR 2001 SUPREME COURT 1760 it has been held as under:-
"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of a particular case, to act upon the supposition that it exists, (vide Section 3 of the Evidence Act). What is required is materials on which the court can reasonably act for reaching the supposition that a certain fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting on any important matter concerning him. [vide M. Narsinga Rao vs. State of A.P. {2001 (1) SCC 691}]."
7.61 The following observations made in Neeraj Dutta (supra) as regards the fate of the prosecution case when the complainant turns hostile and when presumption u/s 20 of the PC Act can be drawn against the accused persons may also be noted:-
"10. The Constitution Bench was called upon to decide the question which we have quoted earlier. In paragraph 74, the conclusions of the Constitution have been summarised, which read thus:
"74. What emerges from the aforesaid discussion is summarised as under:
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 158/176
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 159/176
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature." (emphasis added) The referred question was answered in paragraph 76 of the aforesaid judgment, which reads thus:
"76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:
In the absence of evidence of the complainant (direct/primary, oral/ documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution." (emphasis added)
11. Even the issue of presumption under Section 20 of the PC Act has been answered by the Constitution Bench by holding that only on proof of the facts in issue, Section 20 mandates the Court to raise a presumption that illegal gratification was for CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 160/176 the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment). In fact, the Constitution Bench has approved two decisions by the benches of three Hon'ble Judges in the cases of B. Jayaraj1 and P. Satyanarayana Murthy. There is another decision of a three Judges' bench in the case of N. Vijayakumar v. State of Tamil Nadu, which follows the view taken in the cases of B. Jayaraj and P. Satyanarayana Murthy. In paragraph 9 of the decision in the case of B. Jayaraj, this Court has dealt with the presumption under Section 20 of the PC Act. In paragraph 9, this Court held thus:
"9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
(emphasis added) The presumption under Section 20 can be invoked only when the two basic facts required to be proved under Section 7, are proved. The said two basic facts are 'demand' and 'acceptance' of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification shall be presumed to be for a motive or reward, as contemplated by Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption.
12. In the case of N. Vijayakumar, another bench of three Hon'ble Judges dealt with the issue of presumption under Section 20 and the degree of proof required to establish the offences punishable under Section 7 and clauses (i) and (ii) Section 13(1)(d) read with Section 13(2) of PC Act. In paragraph 26, the bench held thus:
"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] In the aforesaid judgments of CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 161/176 this Court while considering the case under Sections 7, 13(1)
(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court." (emphasis added) Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt.
13. Section 7, as existed prior to 26 th July 2018, was different from the present Section 7. The unamended Section 7 which is applicable in the present case, specifically refers to "any gratification". The substituted Section 7 does not use the word "gratification", but it uses a wider term "undue advantage". When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 provided the basic allegations of the demand and acceptance are proved. In this case, we are also concerned with the offence punishable under clauses (i) and (ii) Section 13(1)(d) which is punishable under Section 13(2) of the PC Act. Clause (d) of subsection (1) of Section 13, which existed on the statute book prior to the amendment of 26th July 2018, has been quoted earlier. On a plain reading of clauses (i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of illegal gratification will be necessary to prove the offences under clauses (i) and (ii) of Section 13(1)(d). In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 162/176 7.62 On behalf of accused no. 2, while relying upon Dashrath Singh Chauhan Vs. CBI AIR 2018 SUPREME COURT 4720 it was additionally argued that the prosecution miserably failed to prove conspiracy between the accused persons and mere alleged acceptance by accused no. 2 is not sufficient to hold him guilty of the offences he has been charged of in the absence of the proof of demand by accused no. 1. However, I find no merits in the said arguments. There is overwhelming evidence of demand as discussed above in detail. As far as conspiracy is concerned, there is ample evidence on record which has also been discussed in detail above. Accused no. 2 was specifically called by accused no. 1 at the time when the demand was raised i.e. on 16.06.2020 and the demanded amount was directed to be paid to accused no. 2 on the next day, which accused no. 2 demanded & accepted from the complainant. Accused no. 2 very well knew at the time of acceptance as regards the nature of the amount he was accepting i.e. it was bribe. He was at the spot for no other purpose but to collect/accept the bribe. The manner in which it was accepted i.e. after taking precautions with the help of DW1 is itself proof of conspiracy. There cannot always be direct proof of conspiracy but in the case at hand there is ample direct as well as enough circumstantial evidence of the conspiracy hatched by the accused persons. The entire circumstances from which the conclusion of guilt is to be drawn stands duly established and the facts are absolutely consistent with the hypothesis of the guilt of the accused persons. It is well-settled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 163/176 corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The court should weigh the evidence and then see whether corroboration is necessary (M.O Shamsudhin Vs. State of Kerala (1995) 3 SCC 351). There is no inconsistency whatsoever and from the circumstances & facts on record no other hypotheses arises except that there was demand of money and its due acceptance (Sharad Birdhichand Sarda v. State of Maharashtra 1984 (4) SCC 116).
7.63 It was argued by Ld. Defence counsels, while relying upon Karnail Singh Vs. State 2009 (1) RCR (Cr.) 406 (P&H), that no offer of search was given to accused no. 2 before effecting the search of bribe money so as to rule out the possibility of plantation, however, I find no merits in the said argument. At the outset, it stands proved on record that on 17.06.2020, at the time when the CBI team left for the spot, the complainant was only allowed to keep the mobile phone, the envelope containing the tainted amount and the DVR containing the memory card Q2. His personal search was conducted by PW12 as has been consistently deposed by PW8 and PW12. No question of planting the bribe money arises as the bribe money/recovered amount was duly demanded by accused no. 1 on 16.06.2020 and accepted by accused no. 2 on 17.06.2020 in terms of demand and directions of accused no. 1, as has been discussed above in detail. The testimony of the eye witnesses i.e. PW12, PW13 & PW14 in particular and the other material CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 164/176 available on record completely rules out planting and squarely proves that it was a case of voluntary, conscious acceptance pursuant to demand. In Karnail Singh's case (supra) not only the demand was proved but the defence was able to shake the very foundation of the prosecution case.
7.64 It was also argued that CBI has miserably failed to prove that copy of the FIR was sent to the Ld. Special Judge within 24 hours in compliance of section 157 Cr.P.C. or that the same was sent to Secretary, CVC in compliance of Rule 6.5.9 of CVC Manual. Reliance was placed upon State Vs. Lalu Ram 2016 (4) LRC 324 Delhi in support of the arguments. However, suffice would be to say that non compliance, if any, is a mere irregularity and not an illegality which goes to the root of the matter. Similarly because there is difference in the proformas of FIR i.e. Ex. PW8/A3 and Ex. PW8/DA is of no significance. The proformas might be different but the contents of the FIR are exactly the same. It is the substance which matters and not the format. No question arises of any manipulation in the FIR, which was registered after due verification of the complaint.
7.65 It was argued that the prosecution miserably failed to prove that the directions of the Hon'ble Supreme Court in D.K Basu Vs. State AIR 1997 SC 610 were followed. It was argued that no document has been brought on record as to whether intimations of arrest of accused persons were given and if given then to whom. Similarly the prosecution could not prove that the family members were notified in writing about the date, time and place of their production. However, I find no merits in CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 165/176 the arguments of Ld. Defence counsels. It is not disputed that the accused persons were arrested vide Ex. PW11/A1 and Ex. PW11/A2. It is duly mentioned in the arrest memo that intimation regarding their arrest was given to their respective spouses. Defence did not examine either Mrs. Sapna Chahal or Mrs. Sunita Yadav to discredit the prosecution case in this regard. It has emerged on record, through the testimony of prosecution witnesses, that after his apprehension, accused no. 2 was taken to PS Vijay Vihar. Similarly accused no. 1 was also brought to PS Vijay Vihar after his apprehension and ACP was also called there. So not only the relatives but even the police officials, colleagues and senior were aware about their arrest. Even otherwise the defence has failed to explain as to how the non compliance, if any, has prejudiced the accused persons.
7.66 Though it was also argued that there was delay in lodging the complaint, by the complainant, however, the law is well settled that mere delay in lodging complaint or registration of FIR by itself cannot render the prosecution case unreliable unless the defence is able to establish on record that the delay was deliberate, has prejudiced the accused persons or that the complaint/FIR was manipulated/fabricated. It is also to be seen that the delay in cases of present nature is quite natural/understandable. It is not easy for a common man to lodge a complaint against police officials, especially SHO of the area and that too of the present nature.
7.67 It is well settled now that there is no ritualistic formula of throwing away the prosecution story merely on CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 166/176 account of delay in FIR. It is a settled proposition of law that delay if duly explained can be condoned and ignored. There cannot be any generalization that whenever there is a delay in lodging the FIR, the prosecution case becomes suspect. Whether delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case, would depend upon the facts of each case. Even a long delay can be condoned if the witnesses have no motive of implicating the accused and have given a plausible reason as to why the report was lodged belatedly. Delay in recording FIR is not a factor vitiating prosecution. Mere delay is not enough to reject prosecution unless there are clear indication of fabrication. Reliance may also be placed upon the law laid down in case titled as Sohan Singh v. State of Bihar 2009 V AD (Cri) (SC) 261, Basudeo Yadav v. Surendra Yadav & Ors. , (SC) 2009 A.I.R. (SC) 546, State of Himachal Pradesh v. Gian Chand, (SC) 2001(2) R.C.R.(Criminal) 666, Harbans Kaur v. State of Haryana, (SC) 2005(3) J.T. 233, Harpal Singh v. Devinder Singh, (SC) 1997 Cri.L.J. 3561, Ramanbhai Naranbhai Patel v. State of Gujarat, (SC) 2000(1) R.C.R. (Criminal) 93 , Zahoor v. State of U.P., (SC) 1991(Sup1) S.C.C. 372, Jayakanth v. State of Karnataka 2009 Cri.LJ 1224, State of HP v. Prem Singh 2009 Cri.LJ 786, Jamallu v. State of Rajasthan 2008 Cri.LJ 816. In State of Himachal Pradesh v. Gian Chand, (SC) 2001 (2) RCR (Crl) 666 it was further held:
"Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 167/176 entire prosecution case. Explanation does mean that each and every hours delay has to be explained."
7.68 It was also one of the arguments of Ld. Defence counsels that IO did not record statement of number of material witnesses who were allegedly part of the investigation namely SP Sudhanshu Mishra, Constable Samay Singh, Sub. Inspector Nitin, Insp. N.C. Nawal, Insp. A.K. Singh, the Malkhana Incharge/Mohrer etc. and for reasons best known to it, the prosecution did not examine the said witnesses. It was argued that their non examination itself creates grave doubts upon the prosecution case. It was argued that adverse inference ought to be drawn against the prosecution for non examining of these material witnesses. However, I find no merits in their arguments. Though these officials were admittedly part of the investigation but there is no obligation whatsoever upon the prosecution to examine all the witnesses who might have been associated with the investigation in some way or the other. The law is well settled that it is the quality and not the quantity/number of witnesses that matters. Section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact ( Sunil Kumar V. State Govt. of NCT of Delhi SC 2004 (1) Criminal CC 524, Krishna Mochi and others Vs. State of Bihar (2002) 6SCC 81).
7.69 In Ram Karan Vs. State of Rajasthan 1997 (2) FAC 131, it was held as under:
"In our system of administration of justice no particular number of witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worth reliance, conviction of an accused may safely be based on such testimony. In our system we follow the maxim that evidence is CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 168/176 to be weighed and not counted. It is the "quality" and not the "quantity" of the evidence which matters in our system. This cardinal principle of appreciation of evidence in a case has been given a statutory recognition in Section 134 of the Evidence Act of 1872."
7.70 Further reliance may be placed upon the law laid down in Ambika Prasad and others Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696), Jawahar v. State, (Delhi) 2007(4) R.C.R.(Criminal) 336, Appabhai v. State of Gujarat AIR 1988 SC 696.
7.71 In State of U.P. v. Anil Singh AIR 1988 SC 1998 the Hon'ble Supreme Court deprecated the practice of rejecting the prosecution version either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. It was held as under:
"13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence.........."
7.72 In the case at hand all the material witnesses associated with the verification of the demand/verification proceedings and the acceptance of the bribe amount/trap proceedings have been duly examined by the prosecution i.e. the complainant, the verification officer, the independent witnesses, the Trap Laying Officer and other officials of CBI. Their testimony coupled with the CFSL report/expert opinion and the CDRs is sufficient to bring home the guilt against the accused persons.
7.73 As far as non examination of Constable Samay Singh CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 169/176 is concerned, same has not affected the prosecution case in any manner. What the prosecution was obliged to prove was the fact that the complainant had met accused no. 1 after ascertaining his whereabouts/availability from Constable Samay Singh. Same stands duly established from the CDR Ex. PW5/A and Ex. PW10/B/Q1. It is to be noted that Constable Samay Singh was posted at PS Vijay Vihar and in my considered opinion under no circumstances he would have deposed against his SHO/accused no.
1. This is the reason why the CBI did not examine him as a witness in the present case.
7.74 As far as non examination of SP Sh. Sudhanshu Mishra is concerned, his role was merely to prove the registration of FIR after endorsement of the complaint and also to prove the signatures on the forwarding letter. Registration of FIR is not disputed and the FIR is on record as Ex. PW6/A3 (colly) as proved by PW8. Who ordered for registration of FIR is not important, what is important is registration of FIR subsequent to the verification of the complaint. The forwarding letter to the CFSL dated 27.07.2020 signed by SP Sh. Sudhanshu Mishra is on record as Ex. PW6/DJ as was proved by PW6. Defence could not prove that the signatures on Ex. PW6/DJ are not of SP Sh. Sudhanshu Mishra. As far as sanction is concerned, the sanction for prosecution of the accused persons is on record as Ex. PW7/A2 and Ex. PW7/A3 as proved by PW7 Sh. Manish Kumar Aggarwal, the then Joint Commissioner of Police who also proved that he had applied his mind and perused the documents placed before him i.e. the complaint, statement of public witnesses, seizure memos & the various other evidence on record and only thereafter accorded the sanction. Hence non CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 170/176 examination of SP Sh. Sudhanshu Mishra has not affected the prosecution case in any manner whatsoever. Failure on the part of the IO/PW15 to bring on record order of the SP whereby the investigation was marked to him is also a mere technicality. Fact remains that PW15 had investigated the matter and the defence could not establish anything to the contrary or that it was some other IO/Inspector who had investigated the matter and not PW15.
7.75 As far as non examination of Malkhana mohrar/Incharge is concerned, it has been discussed in detail above that no doubt that there are certain lacunas in the investigation and that Malkhana Incharge should have been cited as a witness as well as his record/register should have been produced on record, however, not doing so has not affected the prosecution case adversely. As already discussed above, the memory card Q1 part of Ex. P1 (colly) was never deposited in the malkhana and it remained in the safe custody of the CBI officials till it was sent to CFSL for examination and the CFSL result rules out any tampering/fabrication in the case property/exhibit. As far as the right hand wash i.e. Ex. P9 is concerned, no doubt that the same was deposited with the malkhana mohrar, however, merely because it was deposited with the malkhana mohrar that by itself does not make the Malkhana mohrar a material witness. Fact remains the said sample remained in safe custody till its examination by the expert and the defence could not establish any tampering with either of the samples. Bald arguments that the samples were tampered are not sufficient to raise any such assumption.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 171/176 7.76 As far as the arguments that the CDR and other details of the complainant's mobile phone bearing no. 8467804040 were not brought on record though they were admittedly collected by IO/PW15 Insp. Ravinder Bharti, suffice would be to say that the call record of the Constable Samay Singh i.e. Ex. PW5/A and Constable Badri/accused no. 2 i.e. Ex. PW3/A squarely proves that the calls were exchanged between them and the complainant on 16.06.2020 and 17.06.2020 respectively. The fact that these calls were exchanged also stands duly established by the independent witnesses i.e. PW11 & PW12 and other prosecution witnesses PW8 and PW13. As discussed above in detail the defence could not prove that mobile numbers in question did not belong to the complainant or accused no. 2 or Constable Samay Singh etc. Furthermore as already discussed above in detail the prosecution story cannot be rejected merely because the IO failed to carry on a diligent investigation. For similar reasoning, failure on the part of PW15 to bring on record the notice issued to ACP, Rohini to provide copy of the complaint as well as details of call made at 100 number by him and the action taken by PS Vijay Vihar upon his complaint cannot be made a ground to reject the prosecution case more so when the demand and acceptance and the fact that the demand was raised by accused no. 1 for helping out the complainant in a matter relating to a plot stands duly established from Ex. PW10/B as well as other material on record, as has been discussed in detail above. Therefore reliance upon P.C. Mishra Vs CBI 2021 (1) LRC 301 Delhi, Ravinder Kumar Dey Vs. State 1976 SCC (Cr) 566 and Mehraj etc. Vs. State 1994 (4) SCC (Cr) 1390 is of no help to the defence. Moreover all these cases are based upon distinct facts altogether as in those cases the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 172/176 prosecution had failed to examine eye witnesses whereas in the case at hand all the material/eye witnesses have been examined.
7.77 As regards the arguments that none of the material prosecution witnesses i.e. PW8, PW11 to PW15 identified accused no. 1 during the trial, suffice would be to say that the said argument is absolutely misconceived. All the prosecution witnesses duly identified accused no. 1. Not only the identity of accused no. 1 was not even once disputed during the trial but it is also a matter of record that after his arrest vide arrest-cum-personal search memo Ex. PW11/A1 accused no. 1 was taken to the CBI office where his sample voice was recorded in the presence of prosecution witnesses including the independent witnesses. It is also nowhere disputed that accused no. 1 was the SHO of PS Vijay Vihar at the relevant time. The said fact also stands proved through the testimony of PW1 and PW2.
7.78 Ld. Defence counsels had also argued that the public persons present at the time of alleged trap proceedings were admittedly not interfering in the CBI trap proceedings still the Trap Laying Officer/PW13 falsely claimed that the post trap proceedings were shifted from the spot as the atmosphere was not conducive. It was argued that these inconsistent claims by the witnesses create doubt upon the post trap proceedings. However, I find no merits in their arguments. It was duly explained by PW13 that the spot where the trap was laid, accused no. 2 was apprehended was a busy and crowded place and hence they did not conduct further proceedings there. Merely because the post trap proceedings were shifted from the CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 173/176 spot, that by itself does not render the post trap proceedings invalid or doubtful. The defence completely failed to create any iota of doubt upon the post trap proceedings, especially the hand wash of accused no. 2.
7.79 Though it was argued by Ld. Defence Counsels that landline number of the police station on which accused no. 2 allegedly made the call after the trap was not noted down in the recovery memo and even the CDR of accused no. 2 is not showing any outgoing call to any landline number on that day, however, suffice would be to say that it is evident from Ex. PW10/C, reproduced above, that accused no. 2 had indeed made a call at the police station to find out the whereabout of accused no. 1. Nonetheless the said call is not even remotely of any importance as the trap proceedings had already been successfully completed. The CDRs already on record i.e. Ex. PW3/A to Ex. PW5/A connects all the dots and duly corroborates the prosecution case on material particulars.
7.80 Though Ld. Defence counsels had argued that there are no additional signatures of the independent witnesses on Annexure A of Ex. PW8/A-3 and the signatures as appearing on the bottom of Annexure A were admittedly affixed by the witnesses at the time when the said memo was prepared at the CBI office and not at the time of tallying of the particulars of the denomination of the currency notes, however, in my considered opinion there was no requirement of putting additional signatures by the independent witnesses. It stands duly proved on record that the recovered amount/currency notes were tallied CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 174/176 by the independent witnesses with Annexure A of Ex. PW8/A-3 and found to be tallying with the same. The witnesses had duly put the tick marks once the currency notes/recovered amount tallied. The acceptance and the recovery, as discussed above, stands duly proved through the testimony of the prosecution witnesses as well as DW1.
7.81 It was also argued that the packing/envelope of Q2, label of the hand wash and the envelope in which the currency notes were kept do not bear the signatures of the complainant and therefore the only presumption which can be drawn is that the complainant was not present during the alleged trap proceedings as was also stated by the complainant. As far as the complainant is concerned, why he made false statement as regards the trap proceedings are concerned, same has been dealt with above. Even in the absence of his signatures, the packing/the label as well as the envelope bears the signatures of independent witnesses who have also deposed about the trap proceedings in detail. Their signatures are sufficient to ensure the genuineness, authenticity of the trap proceedings as well as safe custody of exhibits/case property.
8. Therefore, in view of the above discussion, as the prosecution case of demand as well as acceptance and recovery stands duly established, both accused persons stand convicted for the offences u/s 120B Indian Penal Code 1860 as well as u/s 7 of the Prevention of Corruption Act 1988 r/w section 120B Indian Penal Code 1860.
CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 175/176
9. Copy of the judgment be provided free of cost to the accused persons and let they be heard separately on the point of sentence.
Announced in the open court on 13th March 2024 (GAURAV RAO) Special Judge CBI (PC Act)-01 Rouse Avenue Court Complex, New Delhi CC No. 68/20 CBI Vs. Surender Singh Chahal and anr 176/176