Delhi District Court
Cbi vs Sunil Kumar on 29 September, 2012
1
IN THE COURT OF MS. RAVINDER KAUR,
SPECIAL JUDGE ( PC ACT)-03, CBI,
SAKET COURTS, NEW DELHI
C C No. 44/12
Unique Case ID No. 02406R1039662007
CBI Versus Sunil Kumar
S/o Sh. Bhagwan Singh
R/o H.No.21, C-Block,
Roshan Vihar, Part-l,
Najafgarh, New Delhi
R C No. DAI-A0044-2006-CBI-ACB-N.D
U/S. 7, 13(2) r/w Sec. 13(1)(d) of the P C Act, 1988
Date of Institution : 30.04.2007
Received by transfer on : 04.04.2012
Arguments concluded on : 18.09.2012
Date of Decision : 29.09.2012
JUDGMENT
1. The complainant Abu Bakkar lodged complaint Ex.PW4/A dated 30-10-06 to SP CBI ACB, New Delhi C C No.44/12 CBI Vs. Sunil Kumar Page no. 1 2 alleging therein that on 27-10-06 2-3 persons in plain clothes came in official vehicle to his residence at Village - Mohd. Pur, Jhadsa in Gurgaon and introduced themselves as police officials of PS- Vasant Kunj, New Delhi. He alleged that these persons forcibly picked him up and his family members and took them to PS-Vasant Kunj in police jeep. At PS-Vasant Kunj they were beaten up, alleging they were indulging in theft and dealing in sale-purchase of stolen items. The complainant pleaded that he was a poor person and was a small time kabari. On next day they were released by police officials but constable Sunil Kumar demanded from him, bribe of Rs.10000 and asked him to pay by 30-10-06. Constable Sunil Kumar also threatened him that if the complainant would not pay the bribe amount, he would again pick him up and involve him in a false case for possessing illegal/unlicensed pistol. It is alleged that on 29-10-06 at about 10.30 pm constable Sunil Kumar from his mobile no. 9891882230 called the complainant on his mobile no. 9891363213 and again made demand of Rs.10000/- to be paid by 30th October, 2006 afternoon.
2. The aforesaid complaint was entrusted to C C No.44/12 CBI Vs. Sunil Kumar Page no. 2 3 Inspector Sandeep Chaudhary of CBI ACB, New Delhi who arranged for two independent witnesses namely Shri Trilok Bharti and Sh. Jagdish Kumar Arora, both from Airport Authority, Safdarjung New Delhi and introduced the complainant to them. The written complaint was also shown to the independent witnesses. Verification of the genuineness of the complaint was carried out by Inspector Sandeep Chaudhary and the complainant at his instance gave a telephone call to constable Sunil Kumar through his mobile phone and informed him that as demanded, he had arranged Rs.10000/- and asked him to fix time and place of meeting. The complainant informed that constable Sunil Kumar directed him to come at Vasant Kunj, Delhi at 5.00 pm along with the amount of Rs.10000/-. The said telephonic conversation was recorded simultaneously in Cenix digital voice recorder which was played and heard. The recording was then transferred from the DVR to blank audio cassette Q1 Ex.P31. The said cassette was signed by the independent witnesses and was sealed in a cloth wrapper Ex.P32. A copy for investigation purpose was also prepared before sealing the cassette Ex.P31.
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3. During the pre trap proceedings the complainant produced 20 GC notes of Rs.500 denomination Ex. P7 to P26 and their numbers were recorded in the Handing Over Memo Ex.PW5/A and they were treated with phenolphthalein powder. Practical demonstration with regard to reaction to sodium carbonate with phenolphthalein powder was also shown. The treated currency notes were then kept in the left side shirt pocket of the complainant and he was directed to give these tainted notes to constable Sunil Kumar only on his specific demand by scratching his head with both hands after transaction of bribe money. Jagdish Kumar Arora the independent witness was directed to act as shadow witness. The entire pre trap proceedings were recorded in Handing Over Memo.
4. At about 4.10 pm the trap team, independent witnesses and complainant left the office of CBI and reached at Pocket-7/D near Vasant Kunj Fly over. At about 4.50 pm the complainant gave a telephone call to Sunil Kumar to find out the location where he was to meet him and the complainant was directed to reach Andheria Mor, T point. The said conversation was also recorded in DVR. The entire team then reached Andheria Mor at about 5.15 pm. C C No.44/12 CBI Vs. Sunil Kumar Page no. 4 5 The DVR, in on position was given to the complainant. The trap team members, complainant and independent witnesses took their respective positions. The complainant had positioned himself at a tea shop near T point. Again at 5.20 pm the complainant gave a call to Sunil Kumar on his mobile phone as he was not found present at the spot. At 5.25 pm Sunil Kumar, the accused in his police uniform arrived there from the side of Vasant Kunj on Hero Honda motorcycle bearing registration no. HR -16B-7057 and stopped near the tea shop. He started talking to the complainant and after sometime they both moved inside the nearby vacant plot. After some conversation the complainant took out money from the left side shirt pocket and extended towards the accused, who accepted the same in his right hand and transferred the bribe money in his left hand and then kept the same in his right side shirt pocket. The pre fixed signal was then given by the complainant and the trap team rushed to the spot; the accused was caught hold off from both his wrists and on being challenged he admitted to have demanded and accepted bribe of Rs.10000/-. The complainant then narrated the entire conversation which took C C No.44/12 CBI Vs. Sunil Kumar Page no. 5 6 place between him and the accused and this version was corroborated by independent witness Jagdish Kumar Arora. The post trap proceedings were then conducted. The accused disclosed his identity that his name was Sunil Kumar and was constable in Delhi Police and was present at the relevant time at PP-Dhaula Kuan, Delhi Police Team for Bangladeshi Residents under South-West District of Delhi Police. The accused was found wearing gloves in his both hands and as such his both hands were separately dipped in freshly prepared colourless solution of sodium carbonate, the colour of which turned into pink.
5. The recording in the DVR, which was taken back from the complainant confirmed the demand and acceptance of bribe by the accused.
6. The recovery cum search memo Ex.PW5/B and Site plan Ex.PW 5/C were prepared at the spot. The accused was arrested vide personal search cum arrest memo Ex.PW5/D and during his personal search a Nokia mobile phone having IMEI no. 355353001663818 was recovered. The accused was dismissed from the service of Delhi police on 31-10-06.
7. The investigation of this case was conducted C C No.44/12 CBI Vs. Sunil Kumar Page no. 6 7 by SI Nikhil Kumar by the order of the then Special Judge Ms. I.K. Kochhar, Special Judge, Patiala House, u/s 17 of PC Act 1988.
8. During investigation the transcription of the recorded conversation in cassette Q1 and cassette Q2A/Q2B was also prepared. The specimen voice of the accused was also taken in cassette mark S1. The exhibits were sent to the CFSL for experts opinion.
9. After completion of investigation, the chargesheet was filed to court u/s 7, 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act 1988 on 30.04.2007 and the cognizance of the offence was taken by the then Special Judge on 21.08.2007.
10. On the basis of material available on record charge u/s 7, 13(2) r/w Sec. 13(1)(d) of the PC Act was framed against the accused to which he pleaded not guilty and claimed trial.
11. The prosecution in supports of its case has examined 09 witnesses.
12. PW-1 V.B. Ramtake, chemical examiner had examined the contents of the exhibit bottles marked as RHW, LHW and RSPPW. He proved his report as Ex.PW1/A that on chemical analysis of the exhibits the presence of phenolphthalein was found.
C C No.44/12 CBI Vs. Sunil Kumar Page no. 7 8 He deposed that after examination of the exhibits the same were sealed with the seal of CFSL and were sent to the forwarding authority in three separate envelopes Ex.P1, Ex.P3 and Ex.P5 and identified the exhibit bottles as Ex.P2, Ex.P4 and Ex.P6.
13. PW-2 is Pawan Singh, Nodal Officer Idea Cellular Service who proved his letter Ex. PW 2/A addressed to Mr. Nikhil Malhotra, PSI/CBI/ACB, CGO Complex, Block No.4, New Delhi-110003, whereby he had furnished the call details of mobile no. 9891363213 dated 30-10-06 Ex.PW2/B and call record of mobile no. 9891882230 Ex.PW2/C. He further proved his another letter Ex.PW 2/D addressed to PSI. Nikhil Malhotra, vide which he furnished the call details Ex. PW 2/E of mobile no. 9891882230 for 29-10-06 and Ex. PW2/F of mobile no. 9891363213.
14. PW-3 SI Hari Singh proved the dismissal order of the accused from the service of Delhi Police as Ex.PW3/A.
15. PW-4 is Trilok Bharti, an independent witness, who was joined by the CBI in this case on 30.10.2006 and is a witness to the pre trap proceedings as well as trap and post trap C C No.44/12 CBI Vs. Sunil Kumar Page no. 8 9 proceedings. He testified that at CBI office he had gone through the complaint Ex. PW 4/A. The complainant Abu Bakkar at the instance of CBI officials made a telephonic call to Sunil Kumar and from the conversation between the two it appeared that Sunil Kumar was making a demand and he had asked the complainant to come somewhere in the area of Vasant Kunj at about 5 pm. The telephonic conversation was recorded by the CBI officials. He further deposed about treating of currency notes of Rs. 10,000/- with some chemical and then he had picked up those currency notes and then dipped his right hand in some solution, the colour of which then turned into pink. He further deposed that they all left the office of CBI at about 5pm and in the meantime the complainant made a telephonic call and meeting was to be held at Andheria Mor. He further deposed that before they left the office of CBI the treated currency notes were handed over to the complainant with instructions to hand over the same to the accused and after the transaction would be over, he was directed to give a signal to the trap team by scratching his head with both hands. He proved the handing over memo as Ex.
C C No.44/12 CBI Vs. Sunil Kumar Page no. 9 10 PW 5/A.He deposed that his colleague Jagdish Kumar Arora was also alongwith them. The complainant was having a mobile phone with him when they left the office of CBI. After leaving the office of CBI they reached near Vasant Kunj, from where the complainant gave a call to accused Sunil Kumar to confirm the place of meeting and after that confirmation the CBI team went to Andheria Mor. The said telephonic conversation was recorded in an instrument, in which the voice of this witness was earlier recorded in the office of CBI.
16. PW 4 further deposed that after few minutes of their reaching Andheria Mor, accused Sunil Kumar came on his motor bike and stopped near a tea shop. The complainant talked to the accused for few moment and thereafter they went inside an open space behind the tea shop. The complainant gave pre determined signal and thereafter the accused was walking towards the motor cycle and on getting the signal the CBI officials rushed towards him and caught hold of him by both his wrists. The accused was wearing gloves in his both hands and khaki uniform. The accused kept mum when caught. The complainant C C No.44/12 CBI Vs. Sunil Kumar Page no. 10 11 informed that he handed over the bribe money to the accused on his demand.
17. PW 4 further deposed about recovery of bribe money by him from the shirt pocket of the accused and that he compared the numbers of the G C notes, so recovered, with the numbers of G C notes mentioned in the handing over memo. He further deposed about taking of wash of both the hands and gloves of the accused, though he could not tell as to whether the hand wash were taken while wearing gloves or without gloves. He also deposed that the wash of the shirt pocket of the accused was also taken and the solution had turned into pink, then all the washes were sealed separately in his presence.
18. PW4 deposed that in the digital voice recorder the introductory voice of his and his colleague Jagdish Kumar Arora was recorded and then it was handed over to the complainant and was briefed about its operation and the said recorder was taken back from the complainant at the spot and was played which transpired that some transaction of money has taken place and accused Sunil Kumar had demanded and accepted the money. He further deposed that the recording C C No.44/12 CBI Vs. Sunil Kumar Page no. 11 12 of conversation done at Vasant Kunj area was transferred to side A of a cassette and the recording of the conversation at the spot was transferred in the same cassette to side B. He further deposed about seizure of the gloves worn by the accused being given mark RHG and LHG.
19. During the course of his testimony he proved the recovery cum seizure memo as Ex. PW 5/B , the rough site plan Ex PW 5/C, personal cum search memo Ex PW 5/D. He identified 20 currency notes of Rs.500 denomination as Ex P -7 to Ex P-26, the three bottles containing hands and pocket wash as Ex. P-2, Ex P-4 and Ex.P-6, the gloves Ex. P-27 and Ex. P-28 and shirt of the accused as Ex, P-29. He further identified the cassette Q-1 as Ex, P-31 containing the telephonic conversation between the accused and the complainant. Cassette Q-2 Ex P-33 containing telephonic conversation between the accused and the complainant and spot conversation. He further proved the transcription Ex PW5/G of the cassette Q-2A/2B Ex. P-33 and the transcription Ex PW 5/F of the telephonic conversation recorded in cassette Q-1 Ex. P-31.
20. PW 5 is Jagdish Arora, who as per the C C No.44/12 CBI Vs. Sunil Kumar Page no. 12 13 case of the prosecution, was appointed as shadow witness. Initially he testified that he was told that he had to remain with Abu Bakkar but in the same breath he stated that lateron in the CBI office itself he was directed not to remain with Abu Bakkar. During the course of his testimony, he identified his signature on the documents prepared during pre trap proceedings and the investigation of the case. He identified the bottles containing LHW, RHW, RSSPW as Ex. P-2, Ex.P-4 and Ex. P-6, the cassette Q-l Ex. P-31 and cassette Q-2 Ex. P-33. In both the cassettes he identified the introductory voice of his own and of his colleague Trilok Bharti. He also identified the currency notes as Ex. P7 to Ex. P-26.
21. PW 5 further testified that the complainant Abu Bakkar made a telephone call to Sunil Kumar from Vasant Vihar and he informed that Sunil Kumar would meet at Aaya Nagar and that from Vasant Kunj they went to Aaya Nagar where they took their respective positions in scattered manner. He further testified that Sunil Kumar came there on bike and then alongwith the complainant went inside the place while talking. After sometime accused Sunil Kumar came out and C C No.44/12 CBI Vs. Sunil Kumar Page no. 13 14 was apprehended by CBI. He further testified that money was taken out from the pocket of Sunil Kumar by the CBI officials. Then he improved upon and stated that perhaps Trilok Bharti took out the money on the asking of the CBI officials. In his entire testimony PW 5 did not testify that he acted as a shadow witness and overheard the conversation between the accused and the complainant or saw the transaction of bribe.
22. PW 6 is Inspt Nikhil Malhotra who took over the investigation of this case on 15.11.2006 by the court order Ex. PW 6/A vide application Ex. PW 6/B. He deposed that during the investigation he recorded the statements of the witnesses, got prepared transcriptions of the recorded conversation between the accused and the complainant, collected call details of mobile phones of both the accused and the complainant and collected the CFSL reports on chemical washes and voice analysis. He proved the FIR No. RC-DA1-2006-A-0044 dated: 31.10.2006 as Ex.PW 6/C and identified the signatures of Abu Bakkar thereon at point B. He also identified the signatures of complainant Abu Bakkar on the complaint Ex. PW 6/A, handing over memo Ex. PW 5/A, recovery C C No.44/12 CBI Vs. Sunil Kumar Page no. 14 15 memo Ex. PW 5/B, transcription of the pre trap recording dt. 19.02.07 Ex. PW 5/F, transcription of spot conversation between the complainant and the accused Ex.PW5/G. He stated that after completion of the investigation he filed charge- sheet to the Court. Regarding sanction, he testified that since the accused was dismissed from the services, sanction for prosecution was not required.
23. PW 7 is Dr. Rajender Singh who examined the questioned voice of accused Sunil Kumar as contained in cassette Q-1 and cassette Q-2A/Q2B with the specimen voice contained in cassette S-1. He proved his report as Ex. PW 7/A to the effect that he examined the questioned voice of Sunil Kumar with respect to his specimen voice by auditory and spectrography technique and he found that questioned voice of Sunil Kumar tallied with his specimen voice in respect of his linguistic /phonetic and other general spectrography parameters. During his chief examination, he identified the cassettes S-1 as Ex. P-34, Mark Q-1 as Ex. P-31 and Mark Q-2A/Q-2B as Ex. P-33.
24. PW 8 Inspr. Dalip Kumar Thakur was C C No.44/12 CBI Vs. Sunil Kumar Page no. 15 16 member of the trap team and deposed on the lines of the case of the prosecution.
25. PW 9 DSP Sandeep Chaudhary made a detailed statement right from the receipt of the complaint, pre-trap proceedings and proceedings conducted after signal was received from the complainant. He testified regarding the entire investigation conducted by him.
26. After completion of the prosecution evidence, the statement of the accused was recorded U/s. 313 Cr PC, whereby the entire incriminating evidence was put to the accused which he denied and claimed himself to be innocent and arrested from Aaya Nagar Border from where he used to collect information and pass on to his superior officers at Bangladeshi Cell at Dhaula Quan regarding illegal Bangladeshi immigrants and as such Bangladeshi immigrants were annoyed with him, who were staying in Delhi NCR illegally and they had got him falsely in this case, in connivance with the CBI. He further stated that during his tenure with Bangladeshi Cell around 800 illegal Bangladeshi immigrants were detected and deported to Bangladesh and that such illegal immigrants wanted Bangladeshi Cell to be closed.
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27. Accused has placed on record the certified copies of the orders of the Hon'ble High Court in Civil Writ Petition No. 3170/2001 filed by one Chetan Dutt advocate against Union of India & Ors,regarding inaction of the Government of India, Delhi State, other States and BSF etc in respect of the illegal immigrants from Bangladesh.
28. Accused claimed that he neither demanded nor accepted any bribe and was falsely implicated in this case. He further stated that the complainant was impostor and was staying in India illegally by changing his name, parentage and address frequently.
29. The accused has not led any evidence in his defence.
30. I have heard arguments addressed by Sh. Hameed Ahmad, Ld. PP for CBI and Sh Satya Narayan Vashishith, Ld. Defence counsel.
31. Ld PP has submitted that in the present case the complainant was a poor person belonging to kooch Bihar and had come to Delhi in search of bread and started working a Kabari and it is quite likely he was in possession of stolen property. That since these Bangladeshis were dealing in some criminal activities the accused C C No.44/12 CBI Vs. Sunil Kumar Page no. 17 18 had threatened the complainant to implicate him falsely in case he would not pay the bribe. The complainant took bold step to lodge complaint against the accused with the police. It is submitted that nodoubt the complainant has not been examined since he was not traceable but the evidence of two independent witnesses alongwith CBI officials is sufficient to prove that accused had demanded and accepted bribe from the complainant. It is further submitted that the prosecution has proved on record the call records of telephone Nos. 9891882230 and 9891363213 Ex. PW 2/B and 2/C respectively, which proves that there had been conversation between the complainant and the accused. That the telephonic conversation between the complainant and the accused during pre trap proceedings was recorded in the cassette Q1 Ex P-31 and the spot trap conversation was recorded in the cassette Q 2 Ex P-33 and as per the report of PW 7 Dr Rajender Singh, the specimen voice of the accused taken in cassette S 1 Ex.P-34 tallied with the questioned voice of the accused contained in cassettes Ex. P- 31 and Ex P-33 which confirms the demand and acceptance of bribe. It is submitted that the C C No.44/12 CBI Vs. Sunil Kumar Page no. 18 19 accused had given his specimen voice voluntarily.
32. It is further submitted that demand and acceptance of bribe by accused is proved vide testimony of PW 4 Trilok Bharti, PW 5 Jagdish Arora, PW 8 Inspt. Dalip Kumar Thakur and PW 9 DSP Sandeep Chaudhary and vide testimony of these witnesses bribe amount was recovered from the possession of accused.
33. It is further submitted that the accused had moved an application dt.18.07.2007 for release of mobile phone No. 9891882230 which amounts to an admission on his part that at the time of arrest he was possessing this mobile phone number and the same was seized from him. It is the same phone which was used by accused for demand of bribe.
34. He further submitted that the wash of gloves Ex. P-27 (RHW) and Ex P-28 (LHW) and the wash of the pocket of the shirt Ex. P-29 (RSPPW) were examined by PW 1 and as per the laboratory examination and analysis the presence of phenolphthalein powder in all these exhibits is proved by the report Ex. PW 1/A proved by PW 1 which also proves that accused had accepted bribe.
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35. Ld PP has submitted that the recovery of bribe amount from the accused attracts the provisions of Sec. 20 P C Act 1988 and the court has to draw presumption against him that he accepted the bribe/ illegal gratification as a motive or reward as mentioned in Sec.7 PC Act. It is submitted that the prosecution has proved its case beyond reasonable doubt and accused is thus liable to be convicted.
36. On the other hand, the defence counsel has argued that the prosecution has failed to prove the demand and acceptance of bribe by the accused as the complainant has not been examined in the present case. Both the independent witnesses namely Shri Trilok Bharti and Sh. Jagdish Kumar Arora have also not deposed about demand of bribe by the accused in their presence nor that they witnessed the accused accepting the bribe. It is submitted that the shadow witness Sh Jagdish Kumar Arora has even denied that he acted as shadow witness Further that the CBI officials, PW 9 the then Inspt Sandeep Chaudhary,the TLO and PW 8 Inspt Dalip Kumar who was member of the trap team also did not testify that the demand and acceptance of bribe was witnessed by them.
37. It is further submitted that the tape recorded C C No.44/12 CBI Vs. Sunil Kumar Page no. 20 21 conversation cannot be looked into as DVR on which conversation was allegedly recorded, has not been produced. There was no justification for holding back the primary evidence without any reason. That since the complainant has not appeared in the witness-box, as such the questioned voice of the accused could not be identified by him. That PW 4 Trilok Bharti also did not specifically identify the questioned voice of the accused as contained in cassette Q-1 Ex.P-31 and cassette Q-2 Ex.P-33 and he testified in his examination in chief that one voice was of the complainant Abu Bakkar and the second voice was perhaps /probably of the accused. Further that during the testimony of PW 5 Jagdish Kumar Arora, PW 8 Inspt Dalip Kumar and PW9 the then Inspt Sandeep Chaudhary, the cassette Q 1 Ex.P-31 and cassette Q-2 Ex. P-33 were not even played by the prosecution in the court during their testimony and thus were not made to identify the questioned voice of the accused contained therein. That no permission was taken from the court for obtaining specimen voice sample of the accused. That link evidence is also missing and therefore the report of CFSL expert cannot be considered.
C C No.44/12 CBI Vs. Sunil Kumar Page no. 21 22 That there is no proper verification of the complaint, as though it is alleged by the complainant that on 27.10.06, 2 /3 officials from PS Vasant Kunj including one official namely Sunil had visited his house and introduced themselves as police official, lifted him alolngwith his family and took them to PS Vasant Kunj where they were detained overnight and gave them beatings, alleging that he was a thief and was receiver of stolen articles. But despite this, no verification was conducted from PS Vasant Kunj as to whether any such incident had taken place. Besides it is submitted that though it is claimed by the prosecution that the complaint was verified in the presence of independent witnesses but as per their testimony there is contradictions with regard to the time of the independent witnesses joining the pre trap proceedings which leads to the inference that the FIR was already registered when they joined.
38. It is further argued that the prosecution has failed to bring cogent evidence on record that the telephone No. 9891882230 belonged to the accused and telephone No. 9891363213 belonged to the complainant and thus the call record Ex. PW2/B and Ex. PW 2/C pertaining to these two C C No.44/12 CBI Vs. Sunil Kumar Page no. 22 23 mobile numbers cannot be relied upon and that even the certificate U/s 65-B Indian Evidence Act has not been annexed alongwith the call record,though it was computer generated print.
39. The defence counsel has further submitted that there are discrepancies in the testimony of witnesses regarding recovery of alleged bribe amount and that even otherwise mere recovery of money from the possession of accused is not sufficient, as the prosecution needs to prove there was demand of bribe and the accused had voluntarily accepted money knowing it to be bribe. It is submitted that the conviction cannot be based on some inference.
40. It is further submitted that there are material contradictions in the testimony of prosecution witnesses and as such no reliance can be placed on the same.
41. It is submitted by the defence counsel that he was posted with Bangladeshi Cell at Dhaula Kuan and the job assigned to him was to collect the information about the illegal Bangladeshi immigrants to Delhi and to submit the same to his superior officers, so that they could be deported back to their country. Since the accused was C C No.44/12 CBI Vs. Sunil Kumar Page no. 23 24 involved in collecting such information, the illegal immigrants from Bangladesh were annoyed with him and hatched a criminal conspiracy to get him involved falsely in the present case and it is for the said reason the complainant had not appeared before this Court as no person by the name of Abu Bakkar ever existed and the complainant was an imposter. It is submitted that a writ petition had also been filed before the Hon'ble High Court and directions were issued from time to time by the Hon'ble High Court seeking the progress in the work of the Bangladeshi Cell. It is submitted that illegal immigrants from Bangladesh had moved to falsely implicate the accused as he was instrumental in their deportation.
42. The synopsis of arguments and Memorandum of Arguments on behalf of accused have also been filed on record.
43. After hearing the submissions of both the parties, I have gone through the material on record as well as the written submissions and Memorandum of Arguments filed by the defence counsel, carefully.
Section 7 of the PC Act provides as under :
C C No.44/12 CBI Vs. Sunil Kumar Page no. 24 25 "Public Servant taking gratification other than legal remuneration in respect of an official act - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government of any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."
In view of the various judgments of the Hob'ble Apex court, the following requirements have to be satisfied to attract Sec. 7 P C Act, 1988:-
C C No.44/12 CBI Vs. Sunil Kumar Page no. 25 26
1. the accused at the time of the offence was, or expected to be a public servant;
2. that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification;
3. that such gratification was not a legal remuneration due to him; and,
4. that he accepted the gratification in question as a motive or reward, for:
(a) doing or forbearing to do an official act, or
(b) showing, or forbearing to show favour or disfavour to some one in the exercise of his official functions; or
(c)rendering or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the Legislature of any State or with any public servant.
The prosecution is required to prove the above ingredients by way of acceptable and clinching evidence. In State of Maharasthra Vs. Dnyaneshwar Laxman Rao Wankhede VI (2009) SLT 439, the apex court while discussing the ingredients of offence u/s 7 of PC Act inter alia held as under :
"Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of C C No.44/12 CBI Vs. Sunil Kumar Page no. 26 27 the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, however, 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. Even 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."
It is held by the Hon'ble Apex Court in the case of Banrasi Dass Vs State of Haryana, (2010) 4 Supreme Court Cases 452 :
"It is settled cannon of criminal Jurisprudence that the conviction of account C C No.44/12 CBI Vs. Sunil Kumar Page no. 27 28 cannot be founded on the basis of inference. The offence should be proved against the accused beyond the reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that record so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence.'' In Surajmal Vs. State (Delhi Administration) (1979) 4 SCC 725, it was held that :
"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 absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."
44. To constitute an offence U/s 7 of P C Act, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused for doing a favour to the complainant in discharge of his official duties. Demand C C No.44/12 CBI Vs. Sunil Kumar Page no. 28 29 and acceptance of bribe is sine qua non to the conviction of the accused. Presumption U/s 20 of P C Act can only be drawn against accused, when prosecution proves by clinching evidence that accused demanded and accepted bribe from the complainant, in discharge of his official duties.
45. In the light of above principles we may examine the evidence on record with specific emphasis to the demand and acceptance of illegal gratification by the accused from the complainant for not falsely implicating him. As observed by the Hon'ble Apex Court in the case of Suraj Mal, Supra., an accused can be convicted even in the absence of examination of the complainant, if it is proved otherwise that he has committed an offence. However, where prosecution is required to prove the fact of demand and acceptance of the money, then demand can only be proved by the person to whom it is made. In the present case, the material witnesses regarding demand and acceptance of illegal gratification/ bribe by the accused would have been the complainant Abu Bakkar and the shadow witness PW 5 Jagidsh Kumar Arora. However, the prosecution received first death blow when it could not produce the complainant in the witness-box. It is only the complainant who could prove that the accused had C C No.44/12 CBI Vs. Sunil Kumar Page no. 29 30 first demanded bribe of Rs. 10,000/- on 27.10.2006 when he and his family members were taken forcibly to PS Vasant Kunj by 2/ 3 persons including the accused and again he demanded bribe through telephone on 29.10.2006.However, complainant did not appear in the witness box to prove this fact. As held by the Hon''ble Apex Court in the case of Suraj Mal, Supra., the complaint or the FIR cannot be used as substantive evidence of the truth of the facts stated therein. The complaint or FIR cannot establish that what was stated out of the court in the said complaint or FIR was true. Thus non-examination of complainant is fatal to the prosecution.
46. So far the independent witness PW 4 Trilok Bharti and PW 5 Jagdish Kumar Arora are concerned, they too have not testified that the accused had demanded and accepted bribe in their presence. As per the prosecution, PW 5 Jagdish Kumar Arora acted as shadow witness and even in his statement U/s 161 Cr PC Ex.PW6/DX-1,it is so mentioned. Perusal of the said statement reveals that it is mentioned therein that PW 5 Jagdish Kumar Arora was asked to act as a shadow witness and to remain close to the complainant and to over hear the conversation which may take place between the complainant and the accused, and to watch C C No.44/12 CBI Vs. Sunil Kumar Page no. 30 31 the transaction as far as possible. It is further mentioned in the statement that PW 5 had positioned himself in a suitable position, from where he could see the demand and acceptance of bribe and further that in the vacant plot he saw the complainant and accused talking and after sometime the complainant took out the bribe money from his left side shirt pocket with his right hand and extended towards the accused who accepted the same in his right hand and then transferred to the left hand and then kept the same in the right side shirt pocket. However, during the course of his testimony, PW 5 stated that in the pre trap proceedings first he was told to remain with Abu Bakkar, however lateron in the CBI office itself he was directed not to remain with Abu Bakkar. He did not testify at all that he had positioned himself in such a manner that he could hear the conversation, if any, between the complainant and the accused or that he had seen the complainant handing over the bribe amount and the accused accepting the same. Rather as per his testimony after sometime of the complainant and the accused going inside a place at Aaya Nagar, the accused came out and was apprehended by the CBI. Despite the fact that this witness did not support the case of the prosecution regarding his being shadow witness and seeing the C C No.44/12 CBI Vs. Sunil Kumar Page no. 31 32 transaction of bribe, neither any leading question was put to him nor he was declared hostile by the prosecution. As such whatever is deposed by the witness is not disputed by the prosecution. Thus, it is clear from the testimony of PW 5 that he was not a witness to demand and acceptance of bribe by the accused from the complainant. He categorically testified even in his cross examination that he could not hear any conversation between the complainant and the accused nor could he see what transpired between the two. Similarly, PW 4 also did not testify that he heard the accused demanding bribe or saw him accepting bribe from the complainant. During his cross examination by the defence counsel, he admitted that he did not hear any conversation between the complainant and the accused at the spot since he was present across the road. He also testified that what transpired between the complainant and accused at the spot was not visible to him from the place where he was standing. At the same time, PW 8 and PW 9, the CBI officials were also neither witness to demand nor acceptance of bribe. As such, there is no evidence on record of the demand and acceptance of bribe by the accused from the complainant.
47. Ld. Public Prosecutor has heavily relied upon the C C No.44/12 CBI Vs. Sunil Kumar Page no. 32 33 judgment of Hon'ble Delhi High Court in case of Bhupender Singh Sikka Vs CBI in Crl Appeal 124/2001 decided on 25.3.2011, where the accused was convicted despite the fact that the complainant and the shadow witness had turned hostile. However, though I fully agree with the aforesaid judgment but the same is not applicable to the facts and circumstances of the present case, as in that case the initial demand of bribe by the accused and the motive had been proved by direct evidence from the overwhelming testimony of PW 1 ie the complainant who lateron turned hostile.
48. The perusal of the record further shows that there are various discrepancies in the case of the prosecution. In the present case even the complaint Ex. PW 4/A has not been proved properly during the testimony of PW 4 Trilok Bharti as it is not the case of the prosecution that the complaint was drafted and signed by the complainant in the presence of either of the independent witnesses or the CBI officials. PW 9, the TLO admitted in his cross examination that the complaint was neither drafted nor signed by the complainant in his presence, though he testified that complainant had confirmed that it is bearing his signature. As such, there is even no evidence on record that the said complaint was signed by the person who had brought the same C C No.44/12 CBI Vs. Sunil Kumar Page no. 33 34 and had introduced himself as Abu Bakkar.
49. The averments contained in the complaint that the complainant was resident of Sec. 36, village Mohammed Pur Jhadsa, Gurgaon, Haryana and was kabari by profession have also not been proved on record. During investigation it was not even verified that the name of the person who lodged the complaint was infact Abu Bakkar and he was resident of Sec. 36, village Mohammed Pur Jhadsa, Gurgaon, Haryana. No proof of identification of the complainant is on record. Neither the TLO PW 9 the then Inspt Sandeep Chaudhary during pre trap proceedings nor the IO of the case PW 6 the then SI Nikhil Malhotra collected the proof of identification and residence of the complainant. Nor any evidence was collected at any stage as to how the complainant and accused came in contact with each other. PW 9 the TLO during cross examination testified that the complainant had informed them that for the first time he met the accused when he visited the house of the complainant at Gurgaon. The fact as to where the complainant was working as kabari was also not verified. The complainant as per the complaint was residing at Gurgaon, whereas the accused was posted with Bangladeshi Cell at PS Dhaula Kuan. What brought them together has remained a mystery.
C C No.44/12 CBI Vs. Sunil Kumar Page no. 34 35
50. The argument of the Ld. Prosecutor that the complainant was a poor person and was involved in some petty offences and thus the accused had motive to accept bribe from him on the ground that he would not falsely implicate him, has no logic, as if the accused wanted to arrest him it would not have been a false implication, as Ld. Prosecutor himself has argued that the complainant was involved in petty cases, though no evidence to this effect is brought on record.
51. It is alleged in the complaint Ex PW 4/A that on 27.10.2006, the complainant alongwith his family was taken to PS Vasant Kunj, by 2 /3 police officials and one of them was Sunil and there he and his family were beaten up, saying that they were thieves and used to received stolen articles but the said allegation was not verified during pre trap proceedings nor any investigation was carried out, as to whether any such incident had infact taken place and the complaint was truthful to that extent. PW 9 the TLO admitted in his cross examination that he had not verified this fact from PS Vasant Kunj. Similarly, the relevant portion of the statement of PW 6 the then SI Nikhil Malhotra, the IO of the case to this effect is reproduced as follows:
"During investigation I had not
C C No.44/12 CBI Vs. Sunil Kumar Page no. 35
36
visited PS Vasant Kunj to verify the
allegations in the complaint Ex. PW 4/A
regarding incident dated: 27.10.06. I also did not get the identity of 2-3 police officials established which are mentioned in the complaint Ex. PW 4/A. I had not recorded the statement of the wife or other family members of the complainant nor I interrogated them.''
52. It is admitted case of the prosecution that the accused at the time of incident or on 27.10.06 was not posted with PS Vasant Kunj but with Bangladeshi Cell at Dhaula Kuan. And this fact was in the knowledge of the TLO as it is mentioned in the recovery memo that accused had disclosed that he was posted as constable in Delhi police at Dhaula Kuan police chowki, Delhi Police Team for Bangladeshi Residence under South West District of Delhi Police. It appears that the TLO or the investigating officer did not feel it necessary to verify the antecedents of the complainant as well as the contents of the complaint. PW 6 IO of the case admitted in his cross examination that at the time of incident the accused was posted with Bangladeshi Cell of Delhi Police at Dhaula Kuan. He also admitted his C C No.44/12 CBI Vs. Sunil Kumar Page no. 36 37 knowledge that Bangladeshi Cell of Delhi Police used to pick up Bangladeshi immigrants, though he expressed his ignorance as to how Delhi police used to deal with such picked up Bangladeshi immigrants. PW 6, the IO though stated in his cross examination that the complainant had produced his voter I- card bearing his photograph and address of Kooch Bihar and the same was issued by Election Commission of India but he did not retain the copy of the same. As such,neither the permanent address nor the present address of the complainant at the time of incident was brought on record. Prosecution has not led any evidence that the complainant belonged to Kooch Bihar. The IO even could not tell if the complainant was residing in Delhi or outside Delhi. However, he admitted that during investigation he did not come across any document showing that complainant had any work with the accused in Bangladeshi Cell where he was posted. Even as per the testimony of PW 9 the TLO during his cross examination, the complainant had met the accused for the first time when he visited his house at Gurgaon and as per record he allegedly visited the house of the complainant on 27.10.06 and prior to that he was not even known to the accused. In such circumstances, question arises what prompted accused to visit the C C No.44/12 CBI Vs. Sunil Kumar Page no. 37 38 house of the complainant alongwith some other police officials on 27.10.06 and to lift the complainant alongwith his family forcibly to the PS Vasant Kunj. From the material on record, it appears that no investigation was carried out in this regard by the TLO during pre- trap proceedings or by the IO during investigation. The TLO PW 9 testified in cross examination that he did not enquire from the complainant during pre trap proceedings as to why the accused was against him. There is no evidence on record as to why the accused would visit the house of the complainant at Gurgaon when he was posted with Bangladeshi Cell of Delhi police at PS Dhaula Kuan. PW9, the TLO admitted that he had received information from the chowki incharge Dhaula Kuan that the accused was posted at Bangladeshi Cell at the time of his arrest. Despite this fact that TLO had come to know this fact at the spot itself, no attempt was made to verify as to how the complainant and his family could be lifted by the accused and some other persons from his house at Gurgaon and could be detained over night at PS Vasant Kunj when accused was not even posted there. Question also arises as to why the accused would demand bribe from him when complainant was not residing in the jurisdiction of the area where he was C C No.44/12 CBI Vs. Sunil Kumar Page no. 38 39 posted nor there is any evidence on record that the complainant was Kabari by profession and was doing his job within the jurisdiction of PS Dhaula Kuan. At the same time, the prosecution has failed to bring any material on record to prove that the accused had any motive to demand and accept bribe from the complainant. Practically neither TLO nor IO has done investigation in this regard. So even the existence of complainant namely Abu Bakkar has not been proved. It is also observed that there is remarkable difference in the signature of complainant Abu Bakkar on the complaint Ex PW 4/A and other documents ie Handing Over Memo Ex.PW 5/A, Recovery Memo Ex. PW 5/B, Transcriptions Ex. PW 5/F & Ex. PW5/G and the FIR Ex. PW 6/C and they do not appear to be of the same person. Here it is important to observe that as per personal search cum arrest memo Ex. PW 5/D, from the personal search of accused, besides other articles a paper slip bearing some Muslim names was recovered and it is argued by defence counsel that he had noted down these names of illegal immigrants. The defence counsel has drawn my attention towards the testimony of PW 4 who during his cross examination testified that complainant was speaking broken Hindi and was not fluent and that during conversation it C C No.44/12 CBI Vs. Sunil Kumar Page no. 39 40 appeared that he was from Bangladesh. The investigation has been carried out in slipshod manner. Once the accused had alleged in his bail application that complainant was Bangladeshi immigrant and hatched criminal conspiracy to get him falsely implicated since he was posted with Bangladeshi Cell of Delhi Police to collect the particulars of the illegal immigrants and to furnish the information to his superior officers, so that they could be deported back to their country, there is no explanation as to why no investigation was carried out in this regard to ensure that accused was not falsely implicated and that the complainant was genuine. In the circumstances of the case, the defence taken by the accused that he was assigned the job of collecting the information regarding illegal Bangladeshi immigrants and to pass it on to his superiors at Bangladeshi Cell Dhaula Kuan and that for this reason such illegal immigrants who were staying in Delhi, NCR were annoyed with him and had thus motive to falsely implicate him, seems plausible.
53. So far the verification of the complaint is concerned, as per the case of the prosecution, the TLO had verified the complaint in the presence of the independent witnesses. However, this fact does not find corroboration from the testimony of PW 4 and PW 5. PW C C No.44/12 CBI Vs. Sunil Kumar Page no. 40 41 4 testified that he alongwith PW 5 met complainant and Inspt Sandeep Chaudhary at 02:00pm. He stated that though they had reached the office of CBI at 10:00am but were waiting for further instructions till 02:00pm. He also stated that he did not conduct any verification about authenticity of the complainant and his complaint. PW 5 also deposed that he alongwith PW 4 was outside CBI office till 02:00pm and he too had not verified the complaint. He stated whatever was told to him by the CBI officials and Abu Bakkar was believed to be correct. From the testimony of both PW 4 and PW 5, it is clear that they had not met the TLO before 02:00pm and as such it also stands proved on record that they had not been joined in any verification of the complaint by PW 9, the TLO, as record speaks that FIR Ex. PW 6/C in this case was registered at 01:30pm. Rather, it leads to the inference that no verification of the complaint was carried out before registration of the FIR. Thus, the prosecution has miserably failed to prove the genuineness of the complaint, about the existence of complainant namely Abu Bakkar, the motive of the accused to demand bribe and the demand and acceptance of bribe by the accused from the complainant.
54. The prosecution claims that PW 4 Trilok Bharti C C No.44/12 CBI Vs. Sunil Kumar Page no. 41 42 had taken out bribe money from the pocket of accused. PW 4 also deposed so, during his chief examination that on the instructions of CBI officials he took out G C notes from the shirt pocket of accused. But during his cross- examination by defence counsel, he was confronted with his statement Ex. PW 4/DA, made by him in departmental proceedings against accused which is reproduced as below:-
"one CBI officer had taken out the currency notes from the pocket of the accused and handed over to me."
55. The two contradictory statements made by PW 4 in two different proceedings creates doubt about his truthfulness. At the same time, testimony of PW 5 Jagdish Arora regarding recovery of money from the accused is no above board. He first testified that CBI officials had taken out money from the pocket of accused. Then he improved upon and stated, '' perhaps Trilok Bharti took out the money on the asking of CBI officials. No doubt, both the official witnesses ie PW 8 and PW 9 deposed that Trilok Bharti had recovered the bribe amount but in view of his own contradictory statement at two different forum, the prosecution has failed to lead cogent evidence regarding recovery of C C No.44/12 CBI Vs. Sunil Kumar Page no. 42 43 bribe money from the possession of the accused. Even otherwise, merely recovery of bribe money from the possession is not sufficient to prove that he had demanded and accepted bribe.
In Banarsi Dass Vs. State, 2010 CrLJ 2419 and Gopal Krishan Vs. State, 18 (1980) DLT 11, it was held that mere recovery of bribe money from the accused was not sufficient to prove offence and that no presumption of guilt should be raised under the Act in the absence of proof of demand and acceptance of money by the accused as a motive or reward. It is pertinent to mention here that in the present case even bribe money has not been recovered from the possession of the accused. Reliance can also be placed upon M. Narsinga Rao Vs. State of A.P., 2001 (1) SCC 691
56. Ld. PP has further argued that even if there is no direct evidence that the accused had demanded and accepted bribe, there is sufficient circumstantial evidence on record to this effect. It is submitted that there is scientific evidence on record which shows that the cassettes Ex.P31 and Ex.P-33 contained conversation C C No.44/12 CBI Vs. Sunil Kumar Page no. 43 44 in the voice of the complainant and the accused. In this regard, he has relied upon the testimony of PW 7 Dr Rajender Singh. He has contended that the specimen voice of the accused was taken and was sent to CFSL and using auditory and voice spectographic technique, Dr Rajender Singh came to the conclusion that the questioned voice as contained in cassettes Q-1 Ex.P-31 and Q-2A/2B Ex. P-33 on comparison with the specimen voice of the accused in respect of his linguistic, phonetics and other general spectographic parameters, was probably of the accused and such recorded conversation clearly indicates that accused had demanded and had accepted bribe. Thus, the CBI has heavily relied upon the alleged recorded conversation between the complainant and the accused in cassette Q-1 Ex.P-31 during the pre trap proceedings and its transcription Ex. PW 5/F as well as the recording of telephone conversation between the complainant and the accused on side A in cassette Q-2 Ex. P-33 and the spot trap conversation in the same cassette on side B and its transcription Ex.PW 5/G. The defence counsel on the other hand has vehemently argued that the prosecution has failed to discharge its duty beyond reasonable doubt and no reliance can be placed on the report Ex. PW 7/A, as it has failed to C C No.44/12 CBI Vs. Sunil Kumar Page no. 44 45 prove that the alleged tape recorded cassette and other exhibits were sealed and seized properly at the spot and deposited in the malkhana of CBI as per rule 13.21 to 13.26 of the CBI Manual safely on the same day without tampering and that the same also reached the CFSL in intact condition and there was no tampering with the same, so long it remained in the custody of investigating agency, malkhana or CFSL, I find force in the argument of the defence counsel as the prosecution has not produced on record any entry made in malkhana register in the official course of business regarding deposit and withdrawal of the case property/exhibits so as to prove that the same were deposited in the malkhana on the same day at the earliest opportunity and remained in the safe custody of malkhana incharge. At the same time no entry in the malkhana register has been produced as to when the case property/exhibits were sent to CFSL for expert's opinion/ chemical analysis, who took them and whether the sample seals were also taken alongwith the exhibits to CFSL, to facilitate the expert /chemical examiner to compare the seal on the exhibits, to rule out the possibility of tampering. The prosecution was under legal obligation to show and establish by cogent evidence that such case property remained intact C C No.44/12 CBI Vs. Sunil Kumar Page no. 45 46 throughout till it reached the safe hands of forensic experts. This is to ensure that case property was not tampered with by anyone at any point of time and to rule out the possibility of any false implication as well. However, in the present case the prosecution has not resorted to any such safeguards. The malkhana Incharge has not been cited or examined as prosecution witness to prove as to when the case property/exhibits were deposited in his safe custody and it is only he who could depose whether the seals were intact and as to when the case property/exhibits were sent to the CFSL that too in intact condition and through whom. PW 6 Inspt Nikhil Malhotra during his cross examination by the defence counsel admitted that he had not recorded the statement of malkhana incharge in the present case. He also admitted that he did not collect the extract of register maintained in the malkhana wherein the entries of deposit and withdrawal of case property are made. He also showed his ignorance, if any Road Certificate is issued by the malkhana incharge when the case property is sent to the CFSL or to any other agency during the investigation. He also showed his ignorance as to who had taken the case property to the CFSL for experts opinion and chemical examination. He testified that the case property was deposited in the malkhana by C C No.44/12 CBI Vs. Sunil Kumar Page no. 46 47 Inspt Sandeep Chaudhary. However, PW 9 did not testify that the case property/exhibits of the case were deposited by him in the malkhana. As such, there is no evidence on record that case property /exhibits were infact deposited with their seals intact, in the safe custody of the malkhana incharge on the same day when they were seized and thereafter till they were deposited in the CFSL there was no possibility of their being tampered with. Thus the prosecution is to be blamed for said serious lapse. The prosecution has failed to bring sufficient material on record that the exhibits of this case ie cassettes Q-1and Q-2A /Q-2B containing the alleged conversation between the complainant and accused regarding demand and acceptance of bribe were left in safe custody till their examination in the CFSL. As held by the Hon'ble Apex Court in the case of Ram Singh Vs Col. Ram Singh reported in AIR 1986 Punjab & Haryana Supreme Court-3- ''every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context, and, therefore, inadmissible." It also held that " the recorded cassette must be carefully sealed and kept in safe or official custody"
57. It is the case of prosecution that PW 9, the TLO C C No.44/12 CBI Vs. Sunil Kumar Page no. 47 48 had obtained the specimen voice of accused in cassette S-1 Ex. P-34. During his chief examination he testified that on 31.10.2006 in the presence of PW 4 Trilok Bharti and PW 5 Jagdish Arora, he took specimen voice of accused. However, during his cross examination he stated that from the date of trap for about 15 days, the file of the case remained with him but he did not conduct any investigation since he was not authorised to do, as he was only the TLO. His such statement finds corroboration from his statement U/s 161 Cr. PC dt. 12.04.2007, where there is no mention that he took specimen voice of the accused on 31.10.2006 or carried out any other proceedings after 30.10.2006. PW 4 Trilok Bharti testified that on 31.10.2006 the specimen voice of accused was taken in his presence as well as in the presence of PW 5 Jagdish Arora but PW 5 did not testify at all in this regard and even Ld. PP did not put him any question in this regard. So, it has remained mystery as to who took specimen voice of accused on 31.10.2006 if it was not done by PW9, the TLO. As such, there is no cogent evidence on record that specimen voice of accused was taken on 31.10.2006 by PW 9, the TLO in the presence of PW 4 and PW 5. At the same time, PW 6, the IO of the case also did not testify that he took specimen of accused. It is observed that cassette S-1 C C No.44/12 CBI Vs. Sunil Kumar Page no. 48 49 Ex. P-34 was not played during the testimony of PW 5 Jagdish Arora and PW 9 the then Inspt Sandeep Chaudhary,the TLO so as to identify the voice of the accused. Nodoubt, this cassette was played during the chief examination of PW 4 and he testified that it was containing the voice of the accused which was recorded on 31.10.2006 in his presence and in the presence of PW 5 Jagdish Kumar Arora, however this testimony is of no consequence, as PW 5 did not testify that on 31.10.2006 he ever visited the office of CBI and the accused had given his specimen voice sample that too voluntarily in their presence. Even the cassette S-1 Ex.P-34 was not shown to PW 5 during his chief examination by Ld. PP. It is further observed that as per the Specimen Voice Recording Memo Ex. PW 5/E, a written text of words to be spoken by the accused during the process of recording of the specimen voice was provided and he read out the text. However, the said written text has not been placed on record. Though PW9, the TLO during his cross examination testified that alongwith the forwarding letter Ex. PW 1/DA,( whereby the cassettes were sent to the CFSL for voice identification ) he had also sent a document containing prominent picked up words from the conversation recorded in cassettes Q-1 and Q-2A/2B respectively C C No.44/12 CBI Vs. Sunil Kumar Page no. 49 50 which were spoken by the accused while recording his specimen voice. (S-1). However, perusal of the forwarding letter Ex.PW 1/DA shows that therein, there is no reference with regard to any such document being sent to the CFSL alongwith the cassettes and it appears that this fact has been concealed with some ulterior motive. Besides, the text was not required to be sent alongwith the cassettes as an expert witness is required to work independently of any such facilitation.
58. The transcription of tape recorded conversation is also one of the important aspect of the case. The incident is dated: 30.10.2006. As per the case of the prosecution, the contents of DVR was transferred to audio cassettes Q-1 and Q-2A/2B. The Voice Identification cum Preparation of Rough Transcription Memo Ex. PW 5/H was prepared on 19.2.2007. It is not merely voice identification memo but also relates to preparation of transcriptions as well. If one goes through this document, then one would feel that vide said memo dt. 19.2.07 the transcriptions of the recorded conversation were prepared word by word as audible and then the said transcription was explained to all the witnesses present there and they confirmed the same to be true and correct and their signatures were obtained in token of its being prepared correctly. Such C C No.44/12 CBI Vs. Sunil Kumar Page no. 50 51 transcriptions are Ex. PW 5/F and Ex. PW 5/G which are purportedly bearing the signatures of two independent witnesses and the complainant besides the IO of the case. However, it is also very much evident from the record that before said transcriptions were officially prepared, if I may say so, investigating agency had already prepared identical transcriptions. Prosecution is duty bound to come up with complete clarity and precision with respect to such vital fact. It should have made ample clear as to who had prepared such transcriptions and when.
59. PW 9 is the TLO. He has neither in his chief examination nor in his cross examination testified that he had prepared any rough transcriptions of the conversation recorded in cassettes Q-1 and Q-2A/2B. During his cross examination,as referred above, he testified that the file of this case remained with him from the date of trap for about 15 days but he did not conduct any investigation since he was not authorised to do so as he was only the TLO. Thus, as per his testimony, the inference can be drawn that he had not prepared any transcriptions of the conversation recorded in the cassettes, referred above.
60. It is observed that vide forwarding letter dt. 6.11.2006 Ex. PW 7/PX of the then SP Sh Sumit Saran, C C No.44/12 CBI Vs. Sunil Kumar Page no. 51 52 only three exhibits ie cassettes Mark Q-1, Q 2A/Q2B and S-1 duly sealed were sent to the CFSL for comparison of specimen voice contained in cassette marked S-1 with the questioned voice contained in cassettes marked Q-1 and Q-2A/Q-2B. In the said forwarding letter, there is no reference that any copy of the transcription/s was also sent alongwith these cassettes to the CFSL. Whereas as per the CFSL report Ex. PW 7/A, apart from the three parcels containing cassettes, referred above, specimen seal impression "CBI ACB ND 77/2005" on two separate white paper sheets and the xerox copy of the rough transaction of the pre trap recording comprising of two pages, xerox copy of transaction comprising of five pages were received in the office of CFSL on 06.11.2006. It is observed that the transcript Ex. PW 5/F is running into two pages and transcript Ex. PW 5/G is running in five pages but both these transcripts are dated: 19.2.2007, whereas the similar number of pages of the transcript were received in the office of CFSL on 6.11.2006 as per the report Ex. PW 7/A of PW 7 Dr Rajender Singh. There is no explanation on behalf of the prosecution that if the transcription was already prepared and sent alongwith the cassettes to the CFSL on 6.11.2006 then where was the necessity to prepare it again on 19.2.07 and to C C No.44/12 CBI Vs. Sunil Kumar Page no. 52 53 obtain the signatures of the complainant and the independent witnesses. The another question which has cropped up is as to who had prepared the transcriptions which were sent alongwith the cassettes to the CFSL on 6.11.2006, as neither PW 9 Inspt Sandeep Chaudhary TLO nor PW 6 Inspt. Nikhil Malhotra testified that these were prepared by them. The prosecution has not given any answer to this question. The approach of the investigating agency in this regard appears to be casual. Moreover, sending of the xerox copy of the transcription alongwith cassettes to the CFSL creates suspicion that the report Ex PW 7/A was procured and was not based on genuine examination and comparison of the contents of cassettes S-1 Ex. P-34 with the cassettes Q-1 Ex.P-31 and Q-2A/Q-2B Ex.P-33. No explanation has come forward from the prosecution as to how the xerox copies reached in the office of CFSL. Hence, adverse inference is drawn against the prosecution. The bare reading of para- l of the forwarding letter Ex PW 7/PX also shows that all the relevant details of the case including the name, the amount of bribe allegedly demanded and the alleged assurance given by the accused are mentioned which amounts to nothing but to provide all the clues to the expert as to on what lines he was to compare the C C No.44/12 CBI Vs. Sunil Kumar Page no. 53 54 specimen voice of the accused with the questioned voice contained in cassette Q1 and Q-2A/2B, rather it facilitated the expert in identifying a particular voice in the cassettes Q-1 and Q-2A/2B as that of the accused. However, forensic experts are not required to be guided. Providing identity of speakers to them would act like suggesting them which is not warranted as that can influence them.
61. It is settled law that merely on the basis of recorded conversation and transcriptions, prosecution cannot bring home the guilt of the accused persons. Court has to ensure existence of mandatory requirements. The CBI has not bothered to place on record primary evidence ie DVR. In such type of delicate cases, such DVR should be made case property. After all, DVR does not cost that big. There is no harm in transferring the contents from DVR to cassette, CD or DVD while taking adequate precautions but that does not mean that thereafter such DVR has to be held back from the court. Such DVR, by no means, is a primary piece of evidence. It is very handy and portable unit and, therefore, prosecution cannot claim that such unit was too heavy to be transported to the Court.
62. The law regarding admissibility of tape recorded conversation has come up for discussion in C C No.44/12 CBI Vs. Sunil Kumar Page no. 54 55 several cases before the Apex Court recently in Nilesh Dinkar Paradkar Vs. State of Maharashtra, III (2011) SLT 35, the Apex Court held as under:
"30. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification. Reliance can also be placed upon Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors., (1976) 2 SCC 17, Ram Singh & Ors .
Vs. Col. Ram Singh, 1985 (Supp) SCC 611, Mahabir Prasad Verma Vs. Dr. Surinder Kaur, (1982) 2 SCC 258'' C C No.44/12 CBI Vs. Sunil Kumar Page no. 55 56 I consider that in view of the discussions made herein above, the evidence regarding tape recorded conversation is not reliable piece of evidence.
63. The prosecution has also heavily relied upon the proven fact that the colourless solution of sodium carbonate changed into pink upon dipping of the hand gloves Ex P-27 and Ex.P-28 and the pocket of the shirt Ex.P-29 worn by the accused at the time of incident. The accused has denied in his statement U/s 313 Cr PC that he was wearing gloves Ex P-27 and Ex. P-28 and shirt Ex. P-29 at the time of the incident or that he had accepted the bribe while wearing gloves and then had kept it in the right side pocket of his shirt and that he had dipped his both hands one by one in the colourless solution of sodium carbonate and that the pocket of his shirt Ex. P-29 was also dipped in such freshly prepared solution and the colour of the same turned into pink. It is claimed by the accused that his uniform shirt was picked up by the CBI officials on 30.10.06 from his residence and was planted upon him and the said defence is finding corroboration from the testimony of PW 8 Inspt Dalip Kumar Thakur who testified that the shirt of the accused was not seized. At the same time, it is observed that it was produced in Court by case property incharge C C No.44/12 CBI Vs. Sunil Kumar Page no. 56 57 and was marked as Ex.P-29. If the shirt was not seized at the spot and then how it was produced before the court by the case property incharge. The possibility of the shirt Ex.P-29 being planted on the accused on being picked up from his house on 30.10.2006, cannot be ruled out.
64. As per Ex. PW 1/DA the forwarding letter, three bottles sealed with seal of CBI, containing solutions RHW, LHW and RSSPW were sent to Director CFSL CBI, New Delhi to give opinion with regard to phenolphthalein powder in solution. On the letter itself, it is mentioned "three sealed bottles in Chemical Division." In the receiving there is no reference that specimen seal impressions were also received in the CFSL. Though in the report Ex. PW 1/A it is mentioned that CBI seals on the sealed bottles were tallied with the specimen seal impression. The official who carried the exhibits( bottles) to CFSL and the official who received the same have neither been cited or examined by the prosecution to prove whether the specimen seal impression were sent to CFSL alongwith the exhibits, to ensure that the exhibits examined were relating to the present case and there was no tampering. No evidence of deposit of three bottles ie Ex.P-2,Ex.P-4 and Ex.P-6 in the malkhana on record. As observed above, PW 9, the TLO C C No.44/12 CBI Vs. Sunil Kumar Page no. 57 58 did not testify that he had deposited the case property in the malkhana, whereas PW 6, the IO of the case testified that it was deposited by the TLO. So there is a missing link in the chain of the prosecution case.
65. There is other draw back in the case of the prosecution, as though it is the case of the prosecution that seal after use was given to PW 5 Jagdish Arora, however neither PW 9, the TLO nor PW 5 testified that seal after use was given to PW 5. as such, there is one more missing link in the chain of prosecution case as the purpose of handing over seal after use to independent witness is to ensure that there is no tampering of case property. Seal was also not produced in the court at any stage.
66. Ld PP has also relied upon the CDR of mobile No. 9891363213 and 9891882230 dtd. 29.10.2006 whereby there are three calls between these two numbers at 10:02 hours, 10:02hours and 19:28hours. He has also relied upon the CDR Ex.PW2/B pertaining to mobile No 9891363213 and mobile No. 9891882230 for the date 30.10.2006, wherein there are three calls made from mobile NO. 9891363213 to mobile No. 9891882230 at 14:27hours, 16:49hours and 17:17hours. It is observed that there is no certificate U/s 65-B of the Indian Evidence Act furnished alongwith C C No.44/12 CBI Vs. Sunil Kumar Page no. 58 59 the call records, which is mandatory. At the same time, PW 2 did not testify that the computer generated sheets of the call record Ex. PW2/B and PW 2/C were generated through the computer, storing the information and the information generated was stored in the ordinary course of business of the service provider. As such, the call records, referred above, cannot be considered by the court in view of the judgment of the Hon'ble Delhi High Court in the case of Devesh Kumar Vs State 2010(1) JCC 762. Besides, no evidence has been led by the prosecution to prove, to whom mobile No. 9891363213 belonged. Admittedly, the said mobile phone of the complainant was not seized by PW 9, the TLO for the reasons best known to him. Neither PW 9, the TLO nor PW 6, the IO of the case collected any documentary evidence that the said mobile number belonged to the complainant namely Abu Bakkar and that it is he who had made calls to or received calls on the said mobile number from accused from mobile No. 9891882230. Complainant has also not been produced in the witness box to prove that he was in use of mobile phone No. 9891363213 and had made to or received calls from mobile No. 9891882230. The prosecution has also not led any evidence to prove, to whom telephone No. C C No.44/12 CBI Vs. Sunil Kumar Page no. 59 60 9891882230 belonged, though it is shown to have been seized from the possession of accused during his personal search. The accused has denied this fact in his statement U/s 313 Cr PC, however it is on record that the accused had sought the release of the said mobile phone by moving an application. Ld. PP has argued that since the accused made false statement U/s 313 Cr PC disowning mobile phone number, as such it must be presumed that he is guilty of the offence charged with. However, in my opinion, merely for the reasons accused did not admit in his statement U/s 313 Cr PC that he was possessing mobile phone No. 9891882230 at the time of his arrest, does not in any manner prove that he had demanded and accepted bribe. It is important to observe here that in the complaint Ex.PW4/A, the complainant alleged that after he and his family were released from PS Vasant Kunj on the next day of 27.10.2006, the accused called him on his mobile phone on 29.10.2006 at 10:30pm and again demanded bribe of Rs. 10,000/- to be paid on 30.10.2006. The call record Ex. PW 2/E though is inadmissible in evidence for want of mandatory certificate U/s.65-B of Indian Evidence Act, however, still a bare glance of the same shows that there were three calls on that day exchanged between the two mobile numbers, referred above, on 29.10.2006 C C No.44/12 CBI Vs. Sunil Kumar Page no. 60 61 at 10:02hours for 3 seconds, 10:02hours for 511seconds and 19:28hours for 307seconds respectively. The complainant concealed this fact in his complaint that there were three calls between these two mobile numbers on that day. At the same time, there is no call between these two numbers at 10:30pm as claimed by the complainant in his complaint Ex. PW 4/A which belies the allegation that the accused had demanded bribe from the complainant on telephone at 10:30pm. Moreover, the telephonic conversation between the complainant and the accused recorded in cassette Q-1 and Q-2A/2B does not inspire credence for the reasons that in the recovery memo Ex. PW 5/B, the sentence- ''the said digital recorder is on position was given to Abu Bakkar'' is added lateron forcibly which can be inferred from the pattern of writing.
67. As per recovery memo Ex. PW 5/B,complainant was seen making a call from his mobile at 05:20pm at the spot and lateron the complainant confirmed that he was making call to the accused on his mobile, since he could not find the accused at spot. What is surprising is that the said telephonic conversation is also found record in the DVR and its transcription is Ex. PW 5/G. However, it is not the case of prosecution that said conversation was also recorded in DVR. At the same C C No.44/12 CBI Vs. Sunil Kumar Page no. 61 62 time, assuming that the complainant was given DVR in on position, at the most only his voice could be recorded therein but not of the person on the other side. This fact has created deep cavity in the case of prosecution. In the recovery memo it is not mentioned that the telephonic conversation between the complainant and accused at 05:20pm when complainant called him on his mobile from the spot, was also recorded. Similarly, though in the Recovery Memo Ex. PW 5/B, it is mentioned that when accused was challenged by CBI officials, he accepted to have demanded and accepted bribe of Rs. 10,000/- but this fact was also not found recorded in the DVR which further creates doubt about truthfulness of prosecution case. It creates doubt about the authenticity of the conversation recorded in cassettes Q-1 and Q-2A/2B that these were in fact recorded in the manner and at the time and place as claimed by prosecution. Besides, neither PW 4 nor PW 5 deposed that they heard at spot the telephonic conversation between the complainant and the accused relating to call made by complainant to accused from the spot.
68. There is also conflicting evidence on record regarding the spot of trap. It is claimed by the accused that he was arrested from Aaya Nagar Border. Though C C No.44/12 CBI Vs. Sunil Kumar Page no. 62 63 all the prosecution witnesses have testified that the spot of trap was at Andheria Mor, T-point near tea stall. However, PW 5 Jagdish Arora supported the defence of the accused and made following deposition in his examination in chief:-
'' From Vasant Vihar, Abu Bakkar made telephonic call to Sunil Kumar. It was told that Sunil Kumar would meet at Aaya Nagar. From Vasant Vihar, we went to Aaya Nagar.'' The said statement has not been disputed by the prosecution. Neither any leading question was put to him nor he was declared hostile by Ld. PP. This testimony of PW 5 has created doubt as to whether the spot was Andheria Mor or Aaya Nagar as claimed by the accused. Thus, the prosecution has not categorically proved its case that the accused was apprehended during trap proceedings at Andheria Mor T-point.
69. Though it is case of prosecution that accused arrived at spot on motorcycle but for reasons best known to prosecution it was not seized. Nor there is any evidence to whom it was released. PW 9 DSP Sandeep Chaudhary, the TLO testified that it was released to C C No.44/12 CBI Vs. Sunil Kumar Page no. 63 64 some relative of accused but could not tell, if any receipt was obtained and also stated that DO would be better person to answer. It is strange that though it is claimed by the prosecution that the accused came at the spot on the motorcycle but no reason has been assigned for not seizing the same, whereas it would have been the case property of this case.
70. Similarly, there is no cogent evidence on record that CBI officials and independent witnesses offered their personal search to accused, before conducting his search. Nodoubt, PW 9, the TLO testified that before conducting the search of accused, they had offered their personal search to him while they had caught hold of him. I fail to understand what kind of offer it was, when the hands of accused were not free as he was caught hold hold off, then how could he conduct personal search of CBI officials. At the same time, PW 4 denied that CBI had offered their personal search to accused after he was apprehended. PW 5 also could not tell if CBI officials had offered their search to accused. PW 8 also did not depose that they had offered their personal search to accused before conducting his search. It is held in the case of Sanjeev Kumar Vs State of Haryana by the Hon'ble High Court of Punjab & Haryana in Crl Appeal No. 2002-SP -2002 dt. 28.7.2010 :
C C No.44/12 CBI Vs. Sunil Kumar Page no. 64 65 "Raiding party did not offer themselves for search before conducting search of accused. Said fact casts doubt on the case of the prosecution.'' Since in the present case the CBI officials and the other members of the raiding party had not offered themselves for search before conducting the search of the accused, this fact makes the recovery of treated notes bad and casts a serious doubt on the case of the prosecution.
71. CBI has miserably failed to prove its case against the accused. The quality of evidence produced by the CBI is weak in nature and not sufficient to invoke statutory presumption U/s. 20 of PC Act.
72. In view of the above discussion, accused Sunil Kumar is acquitted of the charges U/s. 7 & 13(2) r/w Sec. 13(1)(d) of P C Act, 1988.
73. Accused is on bail. Surety is discharged. Bail bond/ surety bond cancelled. Original documents, if any, on record may be returned to him against proper acknowledgment.
74. In terms of Section 437(A) Cr. PC, accused Sunil Kumar is directed to furnish bail bond in the C C No.44/12 CBI Vs. Sunil Kumar Page no. 65 66 sum of Rs.10,000/- with one surety in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bond shall be in force for 6 months.
File be consigned to the Record Room.
Announced in Open Court Ravinder Kaur
Today. Special Judge ( PC Act)
Dated: 29.09.2012 CBI-03,Saket Courts,
New Delhi
C C No.44/12 CBI Vs. Sunil Kumar Page no. 66
67
C C No 44/12
CBI Vs Sunil Kumar
29.09.2012
Present: Sh Hameed Ahmad, Ld. PP for CBI.
Accused on bail alongwith Sh Satya Narayan Vashishth, adv.
Vide separate judgment announced in open Court, accused Sunil Kumar is acquitted of the charges U/s. 7 & 13(2) r/w Sec. 13(1)(d) of P C Act, 1988.
Accused is on bail. Surety is discharged. Bail bond/ surety bond cancelled. Original documents, if any, on record may be returned to him against proper acknowledgment.
In terms of Section 437(A) Cr. PC, accused Sunil Kumar is directed to furnish bail bond in the sum of Rs.10,000/- with one surety in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bond shall be in force for 6 months.
File be consigned to the Record Room.
Ravinder Kaur Special Judge ( PC Act) CBI-03,Saket Courts, New Delhi/29.09.2012 C C No.44/12 CBI Vs. Sunil Kumar Page no. 67 68 C C No.44/12 CBI Vs. Sunil Kumar Page no. 68