Delhi District Court
Cbi vs Ramphool Meena on 18 January, 2007
1
IN THE COURT OF MS. I.K. KOCHHAR: SPL.JUDGE,
CBI,NEW DELHI
CC No.27/06
RC DAI 2002 A 0027
CBI Versus Ramphool Meena
S/o Ram Kishan Meena,
SI Delhi Police, R/o
Street Opposite Masjid
Sultanpur Colony,
P.S. Mehraulli, N.D.
18.1.2007
JUDGMENT
1. This present case was registered on the basis of a complaint dated 14.5.02 of Sh. Brij Lal wherein it had been alleged that pursuant to a rape case i.e. FIR No. 490/01 under Section 366/376/506/34 IPC, Police Station Srinivas Puri registered on 27.11.01 against four persons namely Kuldeep, Vinod, Vikram and Mukesh, Mukesh being the brother of the complainant Brij Lal and the present accused SI Ram Phool Meena being the Incharge of the investigation of that case, the charge sheet of 2 which had been filed in Patiala House Courts, New Delhi and the evidence of the prosecutrix Ms. Parveen Mahazabin having been fixed for 15.5.02; the allegation is that accused SI Ram Phool Meena had contacted the complainant Brij Lal on 13.5.02 on his telephone number 91-6367075 and asked him to meet him at Andheria Modh on 14.5.02 where the accused SI Ram Phool Meena had demanded a bribe of Rs.55,000/- to get the statement of the prosecutrix recorded in favour of the brother of the complainant Brij Lal namely Mukesh in the court on 15.5.02 which would lead to the acquittal of Mukesh in that case. Naresh is the real brother of co accused Kuldeep in that rape case. It has been alleged that accused had informed the complainant that in case this bribe money is not paid by 14.5.02, the statement of the prosecutrix will be got recorded against Mukesh. The complainant Brij Lal did not want to pay the amount of bribe and he lodged a complaint with the CBI. Case was 3 accordingly registered.
2. A pre trap team was constituted by SI Surinder Malik (PW 10) joined by two independent witnesses namely Sh. S.K. Sharma (PW 4) and Sh. S.K. Bhasin (PW 5) and the bribe money of Rs.25,000/- in the form of 230 GC notes of Rs.100/- denomination and four GC notes of Rs.500/- denomination were produced by the complainant, numbers of which were recorded in the Handing Over Memo Ex.PW1/B and the same were treated with phenolphthalein powder. The tainted money was kept in the right side pant pocket of the complainant with the direction to hand over the same to accused Ram Phool Meena on his specific demand for bribe or to some other on his direction. PW 5 was directed to act as a shadow witness. The complainant as per the directions, contacted the accused on his mobile phone, but the accused disconnected the same; after some time accused himself made a call to the complainant which was 4 recorded on an audio tape transcript of which is Ex. PW1/D which revealed that the accused had agreed to accept Rs.25,000/- out of the demand amount of Rs.55,000/- and directed the complainant to meet him. Thereafter the trap party alongwith the independent witnesses and the complainant reached the appointed place; the complainant and the shadow witness proceeded to Police Station S.N. Puri to contact the accused; on the way the complainant contacted the accused on his mobile phone wherein the accused asked him to wait near Tea Shop; the other team members took suitable positions. Two persons came in a Santro Car who later on were revealed as accused Ram Phool Meena and Naresh Yadav. The complainant PW 1 Brij Lal and the shadow witness PW 5 entered into the car. After sometime the complainant and the shadow witness came out of the car and gave the pre appointed signal, but before the trap party could reach near the car, it was driven away by Naresh 5 Yadav and the accused could not be apprehended.
3. The further case of the prosecution is that in the car the complainant had told the accused that he had brought a sum of Rs.25,000/- out of the demand of Rs.55,000/- and the accused agreed to accept the same. When the complainant had taken out the tainted money and extended the same towards the accused, accused directed the complainant to give the money to Naresh Yadav who after accepting the same with his left hand, kept the money in the dash board of the car on the direction of the accused. The transcript of the tape recorded the spot conversation is Ex.PW1/G. As the accused persons had fled away from the spot, on the direction of the TLO the complainant contacted Naresh Yadav on his phone who asked him to meet him at Andheria Modh at 12 mid night. Trap party members reached the place and accosted Naresh who stated that the money which he had received had been paid over to Ms. Parveen Mahazabin the 6 prosecutrix in the FIR of rape case for giving her statement in favour of the brother of the complainant. As per the version of the prosecution, Naresh Yadav further disclosed that the accused had called him to give Rs.75,000/- to be given to the prosecutrix and accordingly they had gone to meet Bhupender Yadav at Faridabad to negotiate with the prosecutrix and after negotiation the prosecutrix Ms. Parveen Mahazabin had agreed to accept Rs.75,000/- which had been paid by Naresh Yadav and Rs.25,000/- from the dash board which had been accepted from the complainant Brij Lal and the same was given to the prosecutrix informing her that the amount was paid by Naresh and Brij Lal on behalf of their brothers. Naresh had further disclosed that after the transaction accused Ram Phool Meena was dropped at his residence. Thereafter the trap party reached the house of the accused at 1 AM on 15.5.02 where the accused was challenged on the demand made by him; the accused denied the same; pursuant to 7 the search conducted at the house of the accused, the tainted money could not be recovered. The Hand Wash of the accused was taken but the colour did not change; the Hand Wash of Naresh which had been taken had turned into light pink. The Hand Washes of both the accused and Naresh were sealed in separate bottles.
4. As per the directions of the TLO, Naresh Yadav then contacted Bhupender Yadav on his mobile phone who informed him that amount of Rs.25,000/- given by Brij Lal had not been accepted by Ms. Parveen and she had demanded that full and final payment of rs.75,000/- should be made to her by the morning of 15.5.02. Thereafter the trap party members reached the house of Bhupender Yadav at Faridabad and when accosted, Bhupender Yadav took out a polythene bag containing a bundle of GC notes which numbers revealed to be the same and tallied with the numbers mentioned in the Handing Over Memo Ex. PW1/B. Hand Wash of Bhupender Yadav 8 also turned pink. The solution was transferred in the bottle and sealed with the seal of CBI. CFSL vide its report Ex. PW6/A had opined positive about the presence of Phenolphthalein and Sodium Carbonate in respect of the Hand Washes of accused, Naresh Yadav and Bhupender Yadav.
5. In view of these prima facie findings, it has been alleged that accused Ram Phool Meena is guilty of having committed an offence punishable under Section 15 and Section 13 (2) read with 13 (1) (d) (11) of the PC Act. Charge sheet was accordingly filed after completion of the investigation. Sh. Naresh Yadav and Sh. Bhupender Yadav were shown in column No. 2 and in the charge sheet it has been alleged that there are no allegations made by the complainant against them. Sh. Naresh Yadav and Sh. Bhupender Yadav were not summoned by ld. Predecessor of this court.
6. On 6.9.03 after hearing arguments on charge, charge against the accused Ram Phool Meena 9 was framed under Section 7 of the PC Act on the prima facie findings that he while working as Sub Inspector in Delhi Police and posted at Police Station Srinivas Puri and acting as Investigating Officer of case FIR No. 490/01 under Section 366/376(g)/506/34 IPC had made a demand of Rs.55,000/- and agreed to accept Rs.25,000/- from the complainant Brij Lal as a gratification other than legal remuneration as a motive or reward for getting the statement recorded of prosecutrix Ms. Parveen Mahazabin in favour of the brother of the complainant, so that he could not be convicted. A second charge was also framed against the accused under Section 13 (2) read with 13 (1) (d) (ii) of the PC Act on the allegation that the accused being a public servant while working as SI in Delhi Police and the IO of case FIR No. 490/01 had abused his official position as such and obtained Rs.25,000/- for himself from the complainant which had been received by Naresh Yadav on his behalf and 10 thereby guilty under the aforesaid provision of law.
7. Accused pleaded not guilty to the charges framed against him and claimed trial.
8. The prosecution in support of its case cited as many as 13 witnesses of whom 10 witnesses have been examined by the prosecution. PW 1 Brij Lal is the complainant and the star witness of the prosecution. The independent witnesses who had joined the pre trap proceedings alongwith the complainant have been examined as PW 4 S.K. Sharma and PW 5 S.K. Bhasin. PW 5 S.K. Bhasin was the shadow witness who had sat alongwith the complainant in the car at the time when the money had been handed over by the complainant to Naresh Yadav on the directions of the accused. The complaint Ex. PW1/A had been marked to PW 10 SI Surinder Malik for investigation. FIR has been proved as Ex. PW10/A; the personal search of accused is Ex. PW4/C and that of Naresh Yadav is 11 Ex. PW5/A. Recovery memo is Ex.PW1/F, GC Notes are Ex. P5 to P238. The specimen voice of the accused was taken vide memo Ex. PW4/D in the presence of the independent witnesses and sealed with the seal of CBI. The questioned audio cassette Q-1 and the specimen voice cassette S-1 of the accused were sent to the CFSL for examination. PW 2 Dr. Rajinder Singh gave his report Ex. PW2/A. PW 6 Sh. P. Nath had received the exhibits of the case i.e. the Hand Wash of the accused, of Naresh Yadav and of Bhupender Yadav and he gave his report Ex. PW6/A and had opined the presence of Phenolphthalein and Sodium Carbonate. Sanction for prosecution against the accused had been obtained from Sh. P. Kamraj ACP vide sanction order Ex. PW8/A. PW 7 Ins. Tej Singh was the SHO of Police Station S.N. Puri between October 2000 to August 2003 has deposed that the investigation of case FIR No. 490/01 under Section 366/376(g)/506/34 IPC P.S. S.N. Puri had been marked to SI Ram Phool Meena. PW 3 Deepak 12 Gupta had produced the record of HUTCH Telephone showing the print out call details of mobile number 9811535581 belonging to the complainant from 11.5.02 to 16.5.02 vide Ex. PW3/A and of mobile record 9811199977 belonging to Naresh Yadav as Ex.PW3/B. The Investigating Officer of this case was Ins. Surinder Malik who has been examined as PW
10. After PW 10 the investigation of this case was transferred to PW 9 Ins. RC Garvan on 12.6.02 who had examined the witnesses and collected the documents including the report of the CFSL.
9. This in brief is the case of the prosecution.
10. Statement of the accused was recorded under Section 313 of the Cr.P.C wherein he has stated that he has been falsely implicated in the present case and that he was the Investigating Officer of the rape case i.e. FIR No. 490/01 in which Mukesh real brother of the complainant (PW1) and Kuldeep real brother of Naresh and one of his 13 cousin namely Vikram and one Vinod were involved and he had arrested all of them and had filed a charge sheet against them; the case was at the stage of evidence; the complainant did not want him to properly investigate the case and to eliminate him from the scene and to prevail upon the prosecutrix these persons hatched a criminal conspiracy to implicate him falsely and got him falsely arrested and after his arrest in the present case the complainant party were successful in their illegal design and were able to prevail upon the prosecutrix due to which she turned hostile on the very next day of his arrest i.e. 15.5.02 which would not have been possible without his false implication in the present case.
11. In defence the accused has produced three witnesses.
12. DW 1 is Deepak. He has brought the record of decided case i.e. SC No.40/02 i.e. FIR No. 490/01, judgment of which is Ex. DW1/A and 14 statement of PW 8 the prosecutrix Ms. Parveen is Ex. DW1/B. This record shows that the statement of the prosecutrix Ms. Parveen had been recorded on 15.5.02 and vide judgment dated 5.8.02, since the prosecutrix had not supported the case of the prosecution, all the accused persons had stood acquitted.
13. DW 2 Ct. Naresh Kaushik had produced the mobile phone from the personal search of Naresh Yadav i.e. mobile phone make "SIEMENS C-35" the IMEI number of which hand set is 449191532233737.
14. DW 3 is Anu Anand. He had brought the summoned record from the HUTCH Mobile Phone Services and call details of mobile number 9811469563 belonging to Bhupender from 14.5.02 to 15.5.02 is Ex. DW3/A and the call details of number 9811199977 belonging to Naresh Yadav from 1.5.02 to 1.6.02 is Ex. DW3/B.
15. On behalf of the prosecution, it has been argued by Spl. PP Mohd. Azad that the case of 15 the prosecution stands proved and the testimony of PW 1 Brij Lal fully corroborates the version of the prosecution which is fortified by the statement of PW 4 and PW 5 the independent witness and the shadow witness; the notes had subsequently been recovered from Bhupender Yadav vide recovery memo Ex. PW1/F and the numbers mentioned in the Handing Over Memo Ex. PW1/B had tallied with the numbers of the GC notes recovered from Bhupender Yadav. The CFSL report Ex. PW6/A further corroborates the version of the prosecution as the Hand Wash of Naresh Yadav, Bhupender Yadav and accused Ram Phool Meena are also in favour of the prosecution. The transcript of the tape recorded conversation on the spot Ex. PW1/G voice of which have been identified by the complainant PW 1 and PW 2 vide his report Ex. PW2/A has further opined that the specimen voice and the questioned voice belonged to the same person i.e. of the accused which again corroborates and advances the version of the prosecution. It is 16 argued that for all the aforesaid reasons, the accused is liable to be convicted. Ld. Spl. PP for CBI has placed reliance upon judgments reported in AIR 1959 Supreme Court 1012. It is argued that it is only if the statement made before the police officer and the statement in the evidence before the court are so inconsistent or irreconcilable with each other that both of them cannot co exist, it may be said that one contradicts the other. Reliance has also been placed upon AIR 1988 Supreme Court 1998 to argue the submission that mere addition of embroidery to prosecution story, perhaps for the fear of being disbelieved by the witness is no ground to throw the case of the prosecution overboard, if true, in the main; a Judge presides to see that a guilty man does not escape. It is argued that in view of the ratio of the Judgment of the Hon'ble Apex Court reported in AIR 1980 SC 873 wherein it has been held that the oral evidence of the complainant and the police 17 officer by itself may be sufficient in accepting the prosecution version even if the trap witnesses turned hostile. 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.
16. On behalf of the accused arguments have been addressed by counsel Mr. Pawan Kumar. It has been argued that the case of the prosecution suffers from inherent contradictions and the alleged tape recorded conversation at the spot transcript of which is Ex. PW1/G clearly shows that no demand had been made by the accused in the absence of which the ingredients of Section 7 & Section 13 (2) read with 13 (1) (d) of the PC Act are clearly not made out. The shadow witness PW 5 S.K. Bhasin has clearly stated that he could not see the accused as the seat of the car was high and 18 the identity of the accused is not corroborated by the version of the complainant; the case of the prosecution is shoddy as even as per the case of the prosecution the Hand Wash of the accused had not turned pink thus establishing that the accused had not touched the tainted money. As per the disclosure statement of Naresh Yadav, money had been paid by the accused to Ms. Parveen the prosecutrix in FIR No. 490/01 on the night of 14.5.02 itself after the same had been received by Naresh Yadav on the direction of the accused and there is no explanation as to how the money was subsequently recovered from Bhupender Yadav; the Hand Wash of Bhupender Yadav had turned pink which can only show that the money had been subsequently handled by him but in this entire transaction the tainted money was never touched by the accused; there being no demand in the alleged telephonic conversation in the pre trap proceedings Ex. PW1/D and the spot conversation Ex. PW1/G and the money 19 having not come into the hands of the accused, the question of the offence for which the accused is being tried, cannot be established. There is no explanation as to why Naresh Yadav and Bhupender Yadav have not been cited as prosecution witnesses and the version of the prosecution that Naresh had disclosed that the money after having been received by him had been handed over to the prosecutrix, is clearly hearsay in the absence of the examination of Naresh Yadav and Bhupender Yadav. It is argued that PW 2 has clearly stated that the spectrographic analysis of the questioned and specimen selected sentences could not be carried out and in his cross examination he has admitted that it is the spectrographic examination only which can establish the identity of the voice and not the auditory examination and as such the report Ex. PW2/A is valueless. There is no explanation as to how and in what circumstances the prosecutrix had turned hostile and given statement in favour of 20 the accused persons on 15.5.02 when the tainted money had been recovered from Bhupender in the morning hours of 4 AM on 14.5.02 and the money not having come into the hands of the prosecutrix, how and in what circumstances she has chosen to become hostile, is again unexplained by the prosecution. Ld. Counsel for the accused has placed reliance upon a judgment of the Hon'ble Apex Court reported in MANU/SC/0188/1975 decided on 10.10.1975 titled as Raghbir Singh Vs. State of Punjab by Hon'ble Judges Mr. P.N. Bhagwati and R.S. Sarkaria to argue the submission that in this case it had been held that the prosecution suffers from serious infirmity as it had rested entirely on the evidence of the witnesses who are either interested witnesses or police witnesses. Reliance has also been placed upon a judgment of the Hon'ble Apex Court reported in MANU/SC/0358/1994 decided on 24.11.1992 titled as Babu Lal Bajpai Vs. State of U.P. by Hon'ble Judges Mr. P.B. Sawant and R.M. Sahai wherein it 21 was held that where there was no independent witness examined although it was possible for the prosecution to secure his evidence to witness the actual transaction and in the absence of which the accused in that case had been held entitled to an acquittal. Reliance has also been placed upon a judgment of the Hon'ble Apex Court reported in MANU/SC/0279/2000 decided on 17.4.2000 titled as Smt. Meena Vs. The State of Maharashtra by Hon'ble Judges Dr. AS Anand, RC Lohati and Doraiswamy Raju wherein it had been held by the Hon'ble Apex Court that even in a case of PC Act, the prosecution has to prove the charge beyond reasonable doubt and the accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vial ingredient necessary to be examined to procure a conviction for the offences; it had further been held that law has always favoured the presence and importance of a shadow witness in the trap party, not only to 22 facilitate such witness to see but also overhear what happens and how it happens also, which was wanting in this case and the accused was held entitled to an acquittal as the prosecution had failed to bring home the guilt of the accused. It is argued that for the abovesaid reasons, the accused is clearly entitled to benefit of doubt and a consequent acquittal.
17. I have heard ld. Spl. PP Mohd. Azad for CBI as also ld. Counsel Sh. Pawan Kumar for the accused. I have also carefully gone through the record of the case.
18. Sanction in this case had been accorded by PW 8 Sh. P. Kamraj who has on oath stated that on 10.2.2003 he was working as Deputy Commissioner of Police, South District, New Delhi and was competent to appoint and remove the Sub Inspector of Delhi Police in such capacity; on the request of the CBI on a perusal of statement of the witnesses, FIR and other relied upon documents, 23 he granted sanction Ex. PW8/A in this case for prosecution against accused Ram Phool Meena. He denied the suggestion that he had not applied his mind in the award of sanction. The contention of ld. Defence counsel is that the telephone transcripts were prepared on 28.3.03 and the sanction order having been received on 10.2.03; the question of the examination of the telephone transcripts did not arise, thereby clearly showing that it was in the absence of the examination of the telephone transcripts that the sanction had been accorded. I do not find any force in this submission of ld. Defence counsel as in the examination in chief this witness has categorically stated that the request of the CBI for grant of sanction against the accused has been received alongwith the statement of the witnesses, FIR and other related documents and in his cross examination he has stated that he had seen some other documents which he does not remember at 24 present. In my view, there is no defect in the Sanction Order. Sanction has been duly accorded against the accused for prosecution.
19. The accused in this case has been charged for the offence punishable under Section 7 and Section 13 (2) read with 13 (1) (d) of the PC Act.
20. Under Section 7 of the PC Act, the presumption available under Sectin 20 (1) of the Act can be applied in a trial for an offence punishable under Section 7 and therefore, if the contrary is not proved by the accused in the trial, the court shall presume that the accused accepted or obtained the gratification or valuable thing without consideration or for a consideration which he knows to be inadequate and it is not necessary to prove the presence of the element of motive or reward.
21. Under Section 13 (2) read with 13 (1)
(d) of the PC Act, the criminal misconduct 25 contemplated by clause (d) or section 13 (1); the impugned actions of a public servant in obtaining any valuable thing or pecuniary advantage in the manner mentioned in (i), (ii) and (iii) need not necessarily be connected with the performance of his official duties even if he as a public servant obtains some pecuniary advantage for himself by abusing his position as public servant he would come within the ambit of Section 13 (1) (d) of the PC Act.
22. PW 1 Brij Lal is the Star witness of the prosecution in this case. He is the complainant. He has on oath stated that a rape case was registered at Police Station S.N. Puri against Vinod, Vikram, Kuldeep and Mukesh. Mukesh is the real brother of PW 1 and Kuldeep is the brother of one Naresh. The Investigating Officer of this case was the accused SI Ram Phool Meena. Pursuant to the registration of this case, after 3- 4 days PW 1 alongwith his relative Shyam Lal and 26 Asha Ram met accused at P.S. S.N. Puri and they inquired about that case; after 15 days of the registration of this case, he (PW 1) alongwith his brother Shyam met the accused at P.S. S.N. Puri and after 15/20 days of this meeting, Naresh informed him on telephone that his brother Vinod has been bailed out and also suggested to him that he should meet the accused to secure bail for his brother Mukesh. In February 2003 accused had called brother of Brij Lal for interrogation and thereafter arrested him and when PW 1 requested the accused to get his brother bailed out, he was informed by the accused that he should pay money and if he does not pay the money, he will not be bailed out. PW 1 has further stated that on 13.5.02 accused telephoned him in the evening hours that he should pay the money to him and he will get the statement of Ms. Parveen the prosecutrix changed in the court and in case he does not pay the money, her statement would be recorded against 27 his brother; the accused had directed him to meet at Andheria Modh on 14.5.02 in the morning hours where he met accused and accused demanded Rs.55,000/- to get the statement of Ms. Parveen changed in the court, otherwise his brother will be involved in her statement. PW 1 has further stated that he could arrange Rs.25,000/- only and in the evening hours he went to the office of CBI and gave a written complaint Ex. PW1/A; the SP CBI then directed SI Surinder Malik (PW 10) to take action on his complaint. Pre trap formalities were completed which included the joining of two independent witnesses namely Sh. S.K. Sharma (PW 4) and Sh. S.K. Bhasin (PW 5); Rs.25,000/- which contained 230 GC notes of Rs.100/- denomination and 4 GC notes of Rs.500/- denomination were produced by the complainant and they were quoted with Phenolphthalein powder and a demonstration was given showing that PW 4 who had touched the notes and when he dipped his fingers in a colourless 28 solution of Sodium Carbonate, it turned pink. On the directions of SI Surinder Malik (PW 10), PW 1 contacted the accused and told him that he could not arrange for Rs.55,000/- and only Rs.25,000/- has been arranged; this conversation was tape recorded.
23. The transcript of this pre trap conversation is Ex. PW1/D; the same has been perused. It has been argued by ld. Defence counsel that there is no demand or acceptance which has been referred to in this transcript and in the absence of which the ingredients of the offence for which the accused has been charged, cannot be proved. A perusal of this document shows that the complainant is telling the accused that "55 pure nahin ho paye, 25 ho paye hai", to which accused replied that "phone par nahin baat banegi" and thereafter the accused has again stated that "55 aur 25 ki kisne baat kari hai, yaar kaisi baat kar rahe ho, Aa O to sahi". PW 1 has further stated 29 that the trap party reached the CBI office and thereafter reached the spot where at about 8/8.15 PM and on the directions of PW 10, PW 1 called upon the accused who told him to wait near the Tea shop. PW 5 S.K. Bhasin was the shadow witness. PW 4 S.K. Sharma an independent witness had also joined the trap party. The accused reached there in his Santro Car alongwith Naresh who was driving the car and the accused was sitting on the front left side. The transmitter to record the telephone conversation between the accused and the complainant was in the shirt pocket of the complainant. On meeting the accused the complainant alongwith PW 5 sat in the car where the accused and Naresh were already sitting and he told the accused that he had arranged for Rs.25,000/- only with great difficulty and he had borrowed Rs.5,000/- from Bhasin and on inquiry of the accused, he told him that Bhasin is his friend. PW 1 then took out the GC notes of Rs.25,000/- and extended towards 30 the accused requesting him to count the money upon which accused directed Naresh to accept the money and keep in the dashboard; Naresh accepted the money from his left hand and put the same in the dashboard, upon which PW 1 told the accused that he has arranged this much money to get the statement of the lady changed. Thereafter Naresh came out of the car on the pretext of taking something to eat and after some time Naresh came back and called him (PW 1) with gestures and thereupon Naresh told the complainant (PW 1) not to give a single penny to the accused but since the payment has already been made, he showed his inability to do anything; thereafter they both sat in the car; accused was already sitting in the car and after sitting in the car, PW 1 again asked the accused to count the money; PW 5 was also sitting in the car; thereafter PW 5 came out of the car and gave signal; PW 1 also came out of the car; the CBI officials started coming towards the car but 31 the accused was successful in running away in the car.
24. It is relevant to point out that the driver of the vehicle was Naresh and it has come in the cross examination of PW 1 that neither Naresh nor accused was aware of any trap being laid upon them. When PW 5 had come outside the car to signal the CBI officials, at that time Naresh the driver of the vehicle, accused and the complainant were still sitting in the car; why the complainant came out of the car in a hurry and allowed Naresh and accused to drive away the vehicle when the accused and Naresh could have been held in conversation by the complainant to enable the CBI to reach the car; this conduct of the complainant appears to be questionable; why was he in such a hurry to get out of the car when the trap party which was just two minutes away, was not allowed to reach the vehicle which was driven away by Naresh and the accused. PW 1 has further stated that the vehicle was chased 32 but they could not apprehend the accused and they came back to the spot where this was narrated to PW 10.
25. The spot conversation transcript has been reduced into writing and the same is Ex. PW1/G; the same has been perused. It is argued by ld. Defence counsel that a perusal of Ex. PW1/G does not match the testimony of PW 1 on oath in court and there is no demand or acceptance of the money by the accused or any such direction given by accused to Naresh to accept this money in the absence of which the ingredients of the offence for which the accused has been charged, cannot be proved. The transmitter recording the telephone conversation was admittedly in the shirt pocket of the complainant. The complainant had conversation with the accused while sitting in the car and when he came out of the car, he also had conversation with Naresh. A perusal of Ex.PW1/G shows that there is no conversation between the complainant 33 and the accused requesting the accused to count the money upon which the accused had directed Naresh to accept the money and keep it in the dashboard or that PW 1 had again for the second time asked the accused to count the money. In the entire gist of Ex. PW1/G, there is no demand made by the accused or acceptance of the tainted amount by Naresh on the asking of the accused as is the case set up by the prosecution.
26. PW 1 has further deposed that thereafter at the instance of PW 10 he rung up Naresh and when finally he was able to contact him on the telephone, Naresh asked him to meet him at Andheria Modh at 12 midnight where the trap party reached and when the CBI officials accosted Naresh as to where Rs.25,000/- was. In the first instance Naresh refused to disclose, but thereafter he replied that the said money was lying with the accused. The Hand Wash of Naresh had turned into pink. On reaching the house of the accused, the 34 accused when accosted denied having the knowledge of the money, but on the persistence of the CBI, he stated that the money was not with him, but it was with Bhupender. Hand Wash of the accused was taken but the colour did not change. Thereafter CBI went to the house of Bhupender and reached his house at 4 AM; Naresh called Bhupender on telephone and asked him to come out of the house and when the CBI officers accosted him, he disclosed that Rs.25,000/- are lying with him and he brought out the said money lying in a transparent polythene bag and on checking they were found to be the same notes which had been given by the complainant as the numbers had tallied with the numbers as mentioned in the Handing Over Memo Ex. PW1/B.
27. This version of PW 1 is not in conformity with the version of the IO SI Surinder Malik PW 10 and is infact in total contrast to the same. PW 10 has on oath stated that pre trap formalities had been arranged pursuant to the 35 complaint of PW 1 and the trap party had reached the spot near Police Station S.N. Puri where the complainant was to meet the accused. PW 10 has stated that after he received the signal from PW 5, they tried to reach the Santro car but inspite of their best efforts, they could not chase the Santro Car and thereafter they came back at the spot and the complainant narrated to him the conversation which had taken place inside the car pursuant to which the site plan Ex. PW4/A was prepared. PW 10 has further stated that thereafter the complainant had contacted Naresh on his mobile phone and they had met Naresh at Andheria Modh at 12 midnight where Naresh had disclosed that he had accepted this money of Rs.25,000/- on behalf of the accused and thereafter he had gone alongwith the accused to Alaknanda and had met Bhupender and the lady Parveen; the accused had demanded Rs. 75,000/- from Naresh who had given the same to the accused and the accused thereafter gave this money i.e. 36 Rs.75,000/- received from Naresh and Rs.25,000/- given to him by the complainant i.e. a total sum of Rs. One Lac was given to the lady Parveen explaining to her that Rs.25,000/- was from the account of Brij Lal and Rs.75,000/- was from the account of Naresh. PW 10 has further stated that Naresh told him that he alongwith the accused reached at PS SN Puri and he left the accused there. This version of PW 10 that after receiving the sum of Rs.25,000/- on behalf of the accused from Brij Lal, he had gone to meet Bhupender and the accused had paid a sum of Rs. One Lac i.e. Rs.75,000/- which he had received from Naresh and Rs.25,000/- which he had received from Brij Lal to the prosecutrix, does not find mention in the statement of PW 1 who has stated that when the CBI officials had asked Naresh as to where the money was, he had told them that this sum of Rs.25,000/- was lying with the accused. These versions of PW 1 and PW 10 are clearly contradictory. 37
28. PW 10 has further stated that thereafter the trap party had gone to the house of the accused and challenged him that he had accepted Rs.25,000/- from the complainant to get the statement of the prosecutrix Ms. Parveen changed in favour of the brother of the complainant which was denied by the accused. Thereupon on the directions of PW 10, Naresh contacted Bhupender on his mobile enquiring about the bribe money to which Bhupender told him that it is with him. PW 10 has further stated that he took the entire trap party alongwith Naresh and accused and proceeded to Faridabad the residence of Bhupender. This version of PW 10 is again contrary to the version of PW 1. PW 10 has stated that it was on his direction that Naresh had contacted Bhupender on his mobile to which Bhupender informed Naresh that the money is with him. This is not the version of PW 1 who has stated that the accused had denied any knowledge about the money and he had told the CBI officials 38 that this money was lying with Bhupender. PW 1 has infact stated that when they reached the house of Bhupender, Naresh telephoned him and called him outside and Bhupender when accosted by the CBI officials, went inside the house and brought out the trap money. This version of PW 10 is totally in conflict with the version of PW 1. PW 10 has stated that the trap money which was kept in the pant pocket of Bhupender was taken out by him and handed over to PW 4 S.K. Sharma, whereas PW 1 has stated that Bhupender had gone inside the house and had come out with the money. The Hand Wash of Bhupender had also turned pink. PW 10 has further stated that Bhupender had disclosed to him that this amount of Rs.25,000/- had been returned by Parveen saying that she wanted Rs.75,000/- and only then she will change her statement. This version of PW 10 and PW 1 on this score clearly appears to be contrary. As per the version of PW 1 when the trap party had met Naresh at Andheria 39 Modh, Naresh had told them that money is lying with accused and the trap party had then gone to the house of the accused. PW 10 has however given a different version and has stated that Naresh had disclosed to him that this money i.e. the entire amount of Rs. One Lac i.e. Rs.75,000/- and Rs.25,000/- had been paid to the prosecutrix Parveen for the purpose of changing her statement in the presence of Bhupender and after making this payment Bhupender and the prosecutrix had gone their separate ways. It has now come in the version of PW 10 that Bhupender told him that this money of Rs.25,000/- is lying with him as the prosecutrix has returned this money to him saying that she wanted Rs.75,000/- and only then she will change her statement.
29. The version set up by the prosecution appears to be highly implausible and improbable. The trap party had admittedly met Naresh at Andheria Modh at 12 midnight and thereafter the 40 recovery of money was effected from the house of Bhupender when they had reached his residence at 4 AM in the morning; all these intervening happenings had already taken place before midnight. Thereafter upto 4 AM ie in this intervening period as per the version of Naresh,this money had been returned back by the prosecutrix to Bhupender. The prosecutrix as per the version of Naresh as disclosed to PW10 had accepted this sum of Rs.One Lac from the accused; the accused had mixed this sum of Rs.75,000/- and Rs.25,000/- and paid this entire amount to the prosecutrix. When in the first instance the prosecutrix had voluntarily received the money,why she chose to return the money to Bhupender thereafter,is not answered. This version further shows that this money which included tainted amount of Rs.25,000/- paid by Brij Lal had been touched by the accused but when the Hand Wash of the accused was taken in the first instance at the spot, the colour did not change, prima facie 41 showing that he had not touched the tainted money. This contradiction is also not explained by the prosecution.
30. The recovery memo Ex.PW1/F prepared at the spot has been perused. In this document, it has been clearly mentioned that the shadow witness PW 5 has corroborated the version of Brij Lal on the acceptance of the money by the accused from Brij Lal and it has been recorded in this document that when the complainant delivered the money to the accused, the accused denied to accept the money and directed Naresh to receive the money and the money was accepted by Naresh with his left hand; a reading of this document shows that the accused had denied to accept the money and this should have come in the conversation allegedly recorded at the spot, but a reading of the transcript Ex. PW1/G shows that there was no such denial made by the accused on the offer of the complaint. There is also no mention in Ex. PW1/G that PW 1 had asked 42 the accused to count the money twice. In this document Ex. PW1/F, it has further been recorded that Naresh when met the trap party at Andheria Modh had disclosed that he had received this money on the directions of the accused and after receiving this money they had gone to meet the prosecutrix at Alaknanda alongwith Bhupender and they convinced the prosecutrix Parveen to accept Rs.75,000/- and to give statement in favour of Vikram the cousin of Naresh and the prosecutrix at that time also had a conversation with the complainant Brij Lal and Naresh had connected her on his mobile to Brij Lal. In Ex. PW1/F, it has further been recorded therein that accused thereafter kept the money together in an envelope and went to Parveen where Bhupender was already present and delivered this amount to her and thereafter the accused was left at the Police Station and Bhupender and Parveen were left in their different areas. This version as mentioned 43 in Ex. PW1/F is not in conformity with the version of PW 1 who has stated that when Naresh had been accosted, he had disclosed that Rs.25,000/- are lying with the accused. These versions as recorded in the recovery memo Ex. PW1/F and the version of PW 10 on the one hand is in total contrast to the version of PW 1.
31. Even otherwise there is no explanation as to why Naresh and Bhupender have not been cited as witnesses; the entire version of PW 10 SI Surinder Malik is on the disclosure statement allegedly made to him by Naresh that this sum of Rs. One Lac was paid to the prosecutrix on the negotiation made by Bhupender in the presence of the accused; this is only a hearsay testimony and in the absence of Naresh coming into the witness box to depose to the said effect, this is valueless. There is also no explanation as to why Bhupender has not been cited as a witness; these two persons namely Naresh and Bhupender were 44 important persons who could have corroborated this version now set up by the IO who makes reference to their disclosure statements but in the absence of their coming into the witness box on oath, these versions being only hearsay, cannot be relied upon. It is relevant to state that Bhupender and Naresh had earlier been arrested and their arrest memos are Ex. PW5/A and Ex. PW4/B respectively; charge sheet had been filed and they had been shown in Column No. 2 and it had been prayed by the IO that they should be discharged as the complainant had not made any allegations against them. In these circumstances, why the IO did not think it fit to record the statements of Bhupender and Naresh and make them witnesses to this case is not explained and adverse inference has to be drawn against the prosecution for withholding this best evidence as if these witnesses would have been produced, they would have given evidence against the case of the prosecution; and for this reliance is placed upon 45 the provisions of Section 114 (g) of the Indian Evidence Act.
32. PW 1 even otherwise is not a reliable witness and there are substantial improvements which have been made in his version. His statement has been recorded before the IO on 20.5.02 Ex. PW1/DA; again his statement has been recorded on 22.7.02 which is Ex. PW1/DB. On oath in court this witness was confronted with both these statements Ex. PW1/DA and Ex. PW1/DB and it has come on record that there are material improvements in his version on oath in court; on oath in court he has stated that he had requested the accused to count the money; he had told the accused that he had arranged for the money and he should get statement of the lady changed and do the needful upon which the accused had demanded the money to get the statement changed; the accused had told him that he might have temptations for money, but Bhupender was working just out of friendship; Naresh had told him 46 that it is getting late and they should leave upon which the complainant again asked the accused to count the money; that Naresh had rung him up at 10.30 AM on his telephone and informed him that the victim of rape wanted to talk to him and she told him that he should not have paid Rs.25,000/- to Meena and the said amount should have been paid to her as Meena had demanded that money from her and that she must get the money by next morning failing which she would make the statement against his brother; that Naresh had told the trap party at Andheria Modh that Rs.25,000/- was lying with the accused; that accused had stated that the money is not lying with him but is with Bhupender. All these so called facts which have been stated by PW 1 on oath in court, do not find mention in his statement Ex. PW1/DA and Ex. PW1/DB recorded on 20.5.02 and 22.7.02, which in my view are material improvements on substantial points and cannot be over looked, thus fortifying the submission of ld. 47 Counsel for the accused that the credibility of PW 1 is tarnished and he is a suspect witness upon whom little reliance can be placed.
33. PW 5 S.K. Bhasin was the Shadow witness who had accompanied the complainant to the spot where the alleged transaction had taken place between the complainant and the accused. This witness has not identified the accused and pursuant to the cross examination carried out by ld. Spl. PP, CBI, he has stated that he could not see the person sitting on the left side of the driver because the seat was high. He has further stated in his cross examination that he had merely signed on the transcripts of the tapes which had been prepared by the CBI. PW 5 has further stated that he had accompanied the complainant Brij Lal to the spot pursuant to the pre trap formalities and the driver of the car had taken the money from Brij Lal and kept it in the dashboard whereupon PW 5 gave the pre appointed signal to the CBI team and 48 came out of the car whereupon the complainant Brij Lal and the driver had gone out of the car and they were having a talk and when the driver came back and Brij Lal told PW 5 that his name is Naresh and whereupon PW 5 and Brij Lal proceeded towards the IO whereupon the car had already left from the spot and inspite of chase, they could not over power the car. PW 5 has further stated that at about midnight the trap party had met Naresh at Andheria Modh but this witness has nowhere stated that how the trap party was led from Naresh to the accused and then to Bhupender. This witness has been declared hostile and he has denied the suggestions given to him by ld. Spl. PP, CBI that Naresh had informed them that this amount of Rs.25,000/- had been taken from Brij Lal and given to Parveen alongwith another sum of Rs.75,000/- to convince her to give statement in the rape case in favour of Vikram and this was in the presence of Bhupender. This witness has also denied that at the spot when 49 the bribe money had been taken out, the accused had directed Naresh to keep the said amount in the dashboard. This witness has not supported the case of the prosecution in any manner.
34. PW 4 S.K. Sharma was the other witness who had allegedly joined the pre trap proceedings. He has on oath stated that he alongwith the CBI party had reached the spot when Brij Lal and S.K. Bhasin met some persons in the Santro Car standing near Police Station S.N. Puri and after they came out of the car they gave signal but the car had already left. PW 4 has further deposed that they met Naresh at Andheria Modh at midnight who disclosed that the money is not with him but it is with accused whereupon they reached the house of accused. This version of PW 4 is in conflict with the version of IO PW 10 and the recovery memo Ex. PW1/F wherein it has clearly been mentioned by PW 10 and in the recovery memo Ex. PW1/F that Naresh had disclosed that a sum of Rs.25,000/- alongwith 50 another sum of Rs.75,000/- had been paid to the prosecutrix Parveen in the rape case in the presence of Bhupender by the accused whereupon Bhupender and Parveen went their separate ways and accused had been dropped at P.S. S.N. Puri. This version of PW 4 is the same as that of PW 1 the complainant Brij Lal who has stated that it was Naresh who had disclosed to them at Andheria Modh that the money is lying with the accused. PW 1 and PW 4 are corroborative on one hand and the contrast versions of PW 10 and the proceedings as mentioned in the recovery memo Ex. PW1/F, are clearly in conflict with one another. PW 4 has further stated that at the house of the accused, the accused when accosted, has stated that he does not know where the money is and it was probably Naresh or the complainant who told him that the money is lying with the accused which had led the police party to the house of the accused. This version of PW 4 is again in contrast with the version of the IO PW 10 51 who has stated that it was on his asking that Naresh had rung up Bhupender on telephone and Bhupender had disclosed on telephone itself that the money is lying with him. PW 1 on this count has stated that the address of the Bhupender was taken from the accused. All these conflicting versions leave little room to doubt that the version of the prosecution is shaky and is not founded on any cogent evidence.
35. PW 2 Dr. Rajinder Singh Senior Scientific Officer, CFSL has proved his report as Ex. PW2/A i.e. the examination of the specimen voice of accused with the questioned voice Q-1(A) to Q-1(C) in the audio cassette which had been sent to him. In his examination in chief, this witness has clearly stated that the spectrographic examination of selected sentence in questioned cassette could not be compared with the same selected sentences in specimen cassette due to interfering electronic transmission noise that had 52 been detected in questioned samples Q-1(A) to Q- 1(C) and that pursuant to the auditory examination of the specimen voice S-1(A) and the questioned voice Q-1(A), he found both the voices similar in linguistic and phonetic features. In his cross examination, he has admitted that voice spectrographic test is considered to be more or less authentic test for identification of voice and it can confirm the person whose voice is in question. He has further admitted that auditory analysis merely gives a possibility that the voice could be of the concerned person whose voice is in question. He has further admitted that the auditory analysis test is not authentic. In view of this admission of PW 2 in his cross examination, little reliance can be placed upon the report Ex. PW2/A as admittedly the spectrographic test could not be carried out which is the authentic identification test in the absence of which, in my view, it is not safe to rely upon the version of the prosecution 53 that the questioned voice in Q-1 (A) to Q-1 ( C ) in the audio cassette infact had belonged to the accused.
36. PW 6 Sh. P. Nath is the CFSL Expert who has given his report as Ex. PW6/A which has been perused. It has been admitted by all the witnesses of the prosecution i.e. PW 1, PW 4, PW 5 and PW 10 that the Hand Wash of the accused had not changed its colour when the test was carried out at the spot, thus substantiating the version of the accused that the accused had not come into contact with the tainted money. Infact this is also the case of the prosecution that the money when given by the complainant to the accused, had been directed to be received by Naresh who had then kept the same in the dashboard of the car. However Ex. PW1/F which is the recovery memo, clearly states that as per the disclosure of Naresh, accused had taken Rs.75,000/- from Naresh and Rs.25,000/- from the dashboard and kept this amount 54 of Rs.75,000/- and Rs.25,000/- in an envelope and delivered the said amount to Parveen. As per Ex. PW1/F this money had been delivered by the accused to Parveen, thereby clearly establishing that the accused had touched this money but when the Hand Wash of the accused was taken, the colourless solution in which his fingers were dipped, had not changed its colour, thus, prima facie establishing that the accused had not come in contact with the tainted money. These conflicting versions are un explained by the prosecution; little reliance can be placed upon the report Ex. PW6/A.
37. PW 1 the complainant has all along stated that his brother Shyam Lal had accompanied the pre trap proceedings and although he had not joined as a witness, he remained there from the beginning till the end; this is again in contrast with the version of the IO PW 10 who has stated in his cross examination that no family member of the complainant had accompanied the trap party and he 55 denied the suggestion that Shyam Lal the real brother of complainant had accompanied them during the entire proceedings. These versions are also conflicting tarnishing the credibility of PW 1 and PW 10.
38. Further, if in these circumstance, when this money had been returned back by the prosecutrix, then how on the following day i.e. 15.5.02 when the statement of the prosecutrix was recorded before the court of Sh. Babu Lal the then ld. ASJ, New Delhi in the rape case FIR No.490/01 under Section 366/376/506/34 IPC, Police Station Srinivas Puri, she turned hostile, is unanswered by the prosecution, as if the money had not yet been received by her, why she chose to support the accused persons, is again not explained by the prosecution. The statement of the prosecutrix before the court of Sh. Babu Lal recorded on 15.5.02 is Ex. DW1/B and the final judgment acquitting the accused persons is Ex. DW1/A. 56
39. DW 3 Anu Anand, Nodal officer, Hutchison Essar had produced the mobile record of Naresh i.e. 9811199977 for the period 1.5.02 to 1.6.02 which is Ex. DW3/B. DW 3 Anu Anand had also brought the summoned record from Hutchison Essar and the call details of mobile number 9811469563 belonging to Bhupender for the period 14.5.02 to 15.5.02 Ex. DW3/A. This witness has stated that IMEI is the number of handset used for making calls and every mobile handset has a different and unique IMEI number. Ld. Counsel for the accused has drawn the attention of the court to the record Ex.DW3/B of the mobile No. 9811199977 of Naresh having the IMEI No. 350127892723490. Attention has also been drawn to testimony of DW 2 Ct. Naresh Kaushik who had brought the mobile telephone set of Naresh recovered from his personal search; the IMEI number of which is 449191532233737. It is stated that in view of the admission of DW 3 that each mobile phone has a different and unique IMEI 57 number, there is no explanation by the prosecution how the mobile telephone No. 9811199977 seized of Naresh showed the IMEI No. as 449191532233737 whereas the mobile call record produced from M/S Hutchison Essar showed a different IMEI number i.e. 350127892723490 of mobile number 9811199977 which is admittedly of Naresh; in these circumstances, the submission of ld. Defence counsel that the prosecution has failed to establish that the calls depicted in Ex. DW3/B were infact the calls made on the handset of Naresh as there is no explanation by the prosecution for the difference in the IMEI number carries weight.
40. The prosecution must prove its case beyond all reasonable doubt; this is an established and fundamental rule of criminal jurisprudence. In my view, there are inherent and unexplained discrepancies and contradictions which have appeared in the versions set up by the different witnesses examined by the prosecution; PW 5 the 58 shadow witness not supporting the case of the prosecution on any count; PW 1 and PW 4 giving different disclosure made by Naresh qua the statement of the IO PW 10 and the proceedings as recorded in the recovery memo Ex. PW1/F which are conflicting to this version of PW 1 and PW 4 for which there is no explanation, in my view, the case of the prosecution is highly shaky and not resting on any sound foundation; benefit of doubt must accrue to the accused and he is clearly entitled to an acquittal.
41. In view of the above discussion, the accused is acquitted of the charges levelled against him. He is on bail. His bail bonds are cancelled and the surety is discharged. File be consigned to record room.
Announced in the open court.
18.1.07 (INDERMEET K. KOCHHAR) SPL.JUDGE, CBI, NEW DELHI 59 60 61