Delhi District Court
Reliance On Krishna Ram vs . State Of Rajasthan [2009 Cri.L.J. on 28 February, 2014
IN THE COURT OF SH. M.R. Sethi:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC NO. 95/2008 (New)
ID No. 02401R0384052002
CBI
Versus
R.P. Goel,
S/o. Shri Bhola Ram Goel,
R/o. BA-23, Shalimar Bagh,
Delhi ..Accused No. 1
Ashok Kumar,
S/o. Late Shri Devki Nandan,
R/o. Shanti Kutir,
T-1/63, Phase-I, Budh Vihar,
Delhi ...Accused No. 2
Case arising out of:
FIR No. RC-DAI-2002-A-0041
Case is more than 10 years old
Date of FIR : 29.06.2002
Date of Institution : 21.10.2002
Date of Final Arguments : 25.02.2014
Date of Judgment : 28.02.2014
JUDGMENT:
1 On 29.6.2002 a written complaint was made by one Jagdish Lal to ACB, CBI mentioning that about a month back he had CC No. 95/2008 Page1 of 49 applied for a power connection to be installed at Plot No. 110-A, Gali No.6, Samaipur, Delhi in the name of his wife Neera Bareja. He had further mentioned in the complaint that all the formalities in that regard had been completed and only sanctioning of the load was pending and order in that regard had to be passed by R.P. Goel. The complaint further mentions that R.P. Goel was putting off the matter on one ground or the other. It further stated that the complainant had met R.P. Goel on 26.6.2002 at about 11.00 AM and R.P. Goel asked him to meet the dealing Clerk Ashok. As per complaint, when the complainant met Ashok, he was asked to bring Rs.5,000/- bribe for R.P. Goel and only then the load would be sanctioned. As the complainant reportedly did not want to pay any bribe, he filed the complaint in CBI.
2 In pursuance to the said complaint made by the complainant, pre-trap proceedings were claimed to have been conducted, trap laid and accused R.P. Goel arrested after he took the bribe amount. Ashok too was arrested.
3 After completion of investigation, charge sheet was filed in court. Vide order dated 19.9.2003 passed by my Ld. Predecessor, charges were ordered to be framed against accused R.P. Goel for having committed offences U/s 120-B IPC read with section 7 & 13(2) read with 13(1)(d) and substantive charge U/s 7 & 13 (2) read with 13(1)(d) of PC Act. Charges U/s 120 B IPC read with Section 7 & 13(2) read with 13(1)(d) & Section 12 for abetting the offence U/s 7 PC Act was ordered to be framed against accused Ashok Kumar. Charges were accordingly framed against both the accused who pleaded not guilty and claimed trial. 4 During course of trial, prosecution examined 10 witnesses, statements of accused persons were recorded and 10 defence witnesses were examined. One court witness was also examined.
CC No. 95/2008 Page2 of 49
5 PW-1 Shri K.C. Chabra proved his report Ex. PW-1/A in
respect of the hand wash and right side pant pocket wash. 6 PW-2 Dr. Rajender Singh proved his report Ex. PW-2/A qua identification of voices contained in the questioned and sample recording.
During course of cross examination witness claimed that he had not obtained any certificate, Degree or Diploma in the Science of Voice identification and had done his P hd in Photo Acoustic Study of Crime Exhibits. He claimed that he had been sent to New Jersey, USA for a Forensic Voice Identification Course. He denied the suggestion that he was not an expert U/s 45 Evidence Act. He further admitted that the voice sample Mark Ex. Q-1 (c & d) could not be compared with voice spectographic test due to high intensity interfering background noise in questioned voice. He claimed having examined the questioned voice of R.P. Goel by auditory method which revealed that questioned voice was similar to the specimen voice in respect of their linguistic and phonetic features. He denied the suggestion that for a 90% match of the voices, at least 20 words should have been picked up for comparison or that for probable identification, at least 15 words should be selected and for a possible identification at least 10 words should be selected. He further denied the suggestion that in the science of voice identification, there was no classification as "similar" or that a voice identification test could be performed by a Team comprising of Phonetic Expert, Linguistic Expert, Sound Engineer and a Scientist in Speech and Hearing Science. He denied the suggestion that he himself had not conducted voice analysis of disputed voices in this case. Photocopy of worksheet and forwarding letter were proved as Ex. PW-2/DA & DB. While admitting that CFSL was administratively under control of CBI, witness denied the suggestion that his report was biased or incorrect.
CC No. 95/2008 Page3 of 49
7 PW-3 Shri D.K. Sharma identified his signature on the
Technical Feasibility Report Ex. PW-3/A in file of M/s Konark Overseas. He claimed that the report was filled up by him and was prepared on 3.6.02. He further claimed that electricity load could be sanctioned only after completion of Feasibility Report Ex. PW-3/A and that as Column No.1 of the report was not earlier filled up, the report had been put up before him again on 29.6.2002 when he filled it up and completed the report.
During cross examination by Ld. Counsel, witness claimed that on 29.6.2002 the report Ex. PW-3/A was personally put up before him by the Consumer. He further admitted that Ex. PW-3/A had been marked to AE and not to JE i.e. him. Signature of the AE was identified at point-C. 8 PW-4 Shri V.P. Aggarwal proved on record DVB File of M/s. Konark Overseas maintained in the Office in regular course of business. It was proved as Ex.PW-4/A. He further claimed that the Form in respect of Feasibility Report had been submitted to the accused by the Dealing Clerk on 27.05.2002 and on the very same day, accused R.P. Goel vide his endorsement at point 'B' on Ex.PW-3/A asked the Dealing Clerk to obtain Feasibility Report from Zonal AE / JE. He claimed that the Dealing Clerk submitted the note before accused on 17.06.2002 when accused vide his endorsement asked the Dealing Clerk to discuss the matter. Note Sheet was proved as Ex.PW-4/B. He further claimed that vide endorsement Ex.PW-4/C, accused had asked the Dealing Clerk to get completed the Feasibility Report Ex.PW-3/A which was put up before him on 29.06.2002. He further claimed that the incomplete Report was received back by the Consumer Jagdish Lal vide his endorsement and signature at point 'A' on Office copy Ex.PW-4/D. He further stated that after completing the Report, Consumer handed it over to the Dealing Clerk who in turn submitted the same to the accused on CC No. 95/2008 Page4 of 49 the very same day and accused approved sanction of load vide endorsement Ex.PW-4/E. The endorsement was claimed to have been made on the noting put up by the Dealing Clerk Ashok Kumar vide his endorsement and signature Ex.PW-4/F. During course of cross-examination, witness claimed that Office of accused was on the other end of the Building at the First Floor in the Building where his own Office was situated. He claimed having visited Office of the accused and stated that before entrance to the room, there was an approaching Gallery and a Door Closer on the entrance Door. He claimed that it was not possible to see inside the the Office of accused from the Gallery. He admitted that as per Ex.PW-4/B, there was an order dated 14.06.2002 directing the Dealing Clerk to discuss the case on 17.06.2002. He claimed that Shri Kripal was the Dealing Clerk at that time.
9 PW-5 Shri N.P. Singh proved his letter Ex.PW-5/A to the effect that DVB was unbundled and R.P. Goel & Ashok Kumar were allocated to NDPL and so both seized to be public servants w.e.f. 01.07.2002.
During course of cross-examination, witness claimed that as on 29.06.2002 Ashok Kumar was an employee of DVB and was a public servant. He further claimed that Ex.PW-5/A had been issued by him in response to a communication from CBI. He claimed ignorance regarding the fact that after unbundling of DVB, some employees of NDPL had been trapped by ACB, Govt. of NCT or CBI. He denied the suggestion that accused R.P. Goel was a public servant.
10 PW-6 Shri L.S. Negi was one of the independent witnesses who had been joined in the trap proceedings in this case. He claimed having gone to CBI Office on direction of his Sr. Officer on 29.06.2002 alongwith his Assistant Shri Vikas Srivastava. He claimed that he was introduced to the complainant Shri Jagdish Lal CC No. 95/2008 Page5 of 49 and had also gone through his complaint. He stated about the demonstration given in the CBI Office regarding reaction of Phenolphthalein Powder treated currency notes (produced by the complainant) which were touched by Shri Vikas Srivastava whose fingers were dipped in solution of Sodium Carbonate. The solution was claimed to have been destroyed thereafter. He further stated that the treated GC notes were kept in the left side shirt pocket of Shri Jagdish Lal with instructions to hand over the same on demand by R.P. Goel or Ashok Kumar. Witness claimed that he himself was deputed as being shadow witness to remain close to Shri Jagdish Lal for over-hearing the conversation and seeing the bribe transaction. He further claimed that he had been directed to give signal by scratching his head after completion of transaction. It was further claimed that all the proceedings conducted in the CBI Office were recorded in Handing Over Memo Ex.PW-6/A and the Tap Recorder Handing Over Memo Ex. PW-6/B. Witness also identified his signature on the same. He further claimed that the Digital Recorder was pen type which can be kept in shirt pocket. Two sealed blank cassettes and a Compact Cassette Recorder were also claimed to have been arranged. The Digital Recorder and the cassettes were claimed to have been checked to see if they were blank and then introductory voices were claimed to have been recorded on the Compact Cassette Recorder and the witness as well as Vikas Srivastava signed on the blank cassettes. The Digital Recorder was claimed to have been given to complainant Shri Jagdish Lal with instructions to switch it 'ON' on the start of conversation. After reaching the spot, it was claimed that the vehicle was parked by CBI Officers outside boundary of DVB Office and the complainant and he himself were directed to proceed to room of Ashok Kumar while other members of the party took positions at different places in the Office. Witness claimed that first of all, he and CC No. 95/2008 Page6 of 49 the complainant met Ashok Kumar where Jagdish had some talk with Ashok who then took out his File and accompanied them to room of accused R.P. Goel. He claimed that after some discussions, R.P. Goel claimed that EF (TF ?) was not complete and should be got completed from the Inspector at Samaipur. He claimed that R.P. Goel handed over the File of M/s. Konark Overseas to the complainant and this fact was informed by them to the CBI Officer. Witness further stated that he then accompanied Jagdish Lal to the Office of Area Inspector / J.E. at Samaypur where Jagdish Lal obtained the TF Report and then both of them returned back to Office of DVB at Shalimar Bagh where they went to room of accused Ashok Kumar. It was claimed that the complainant made a grievance to Ashok Kumar to the effect that if all this was to be done, why the bribe was to be paid. Ashok Kumar was claimed to have stated that in any case File has to be completed. He claimed that thereafter all three of them went to Office of R.P. Goel where Ashok Kumar handed over the File to R.P. Goel and went out. Witness claimed that R.P. Goel even asked him (witness) to go out and accordingly he himself came out and took position at the gate where he could see R.P. Goel, the complainant & also hear their conversation, but R.P. Goel could not see him. Witness claimed that Goel took the File, came out and asked him not to stand there. He claimed that as soon as the accused returned to his room, he again took position at earlier spot. He claimed having heard the conversation regarding demand "Yahan Rakh Dijiye". It was claimed that Jagdish Lal took out the money from his pocket, accused accepted the same with his right hand and put it in the right side pocket of his pant and then put signatures on the File. He claimed that R.P. Goel then asked the complainant to give Rs.500/- to Ashok Kumar upon which Jagdish asked Goel to pay the same. Witness claimed that thereafter R.P. Goel called him inside the Office room CC No. 95/2008 Page7 of 49 but before that he had heard conversation "Aath Hazaar Lunga", but the complainant was insisting for Rs.5000/-. He claimed that on the accused enquiring from him (witness) as to what product was produced in his factory, the complainant claimed that the witness had a lathe / kharat factory. He further claimed that on Goel enquiring from him if he needed two Phase or three Phase connection, as he did not know anything about it, he came out and gave the pre- appointed signal. Inspector Ansari and other team members were claimed to have entered the room where accused Goel was caught hold of by his wrists and on CBI Officers challenging the accused regarding his having accepted the bribe, Goel became perplexed and admitted having accepted the bribe. It was claimed that thereafter he himself as well as the complainant narrated the details. Thereafter, witness stated about hand wash which reportedly turned pink and solution was sealed with cloth wrapper and sealed with CBI seal. He claimed having signed the wrapper as well as the paper slip. Recovery was claimed to have been made by Shri Vikas Srivastava and the currency notes recovered matched with those mentioned in Ex.PW-6/A. He also stated about pant pocket wash and the wash turning pink and being preserved and sealed with CBI seal. It was claimed that the Digital Recorder was taken from the complainant, conversation heard and then transferred to cassette of the Compact Recorder. Witness claimed having signed the paper- slip pasted on the cassette but could not say whether or not an extra copy of the cassette had been prepared. The cassette was claimed to have been sealed with seal of CBI and put in cloth wrapper. It was signed by him and Vikas. Both the accused persons were claimed to have been arrested and their personal search conducted vide Memos Ex.PW-6/C & D. Site Plan Ex.PW-6/E was also claimed to have been prepared. Witness identified his signature on the same. File in question was identified as being Ex.PW-4/A. Recovery Memo CC No. 95/2008 Page8 of 49 Ex.PW-6/F was also claimed to have been prepared at the spot. Witness identified his signature on the same. He further claimed that specimen of the seal used for sealing the bottles had also been taken on Ex.PW-6/G. Witness identified his signature on the same. It was claimed that he was again called by the CBI Officer after about two weeks where specimen voices of accused persons were taken. He claimed that before taking their specimen voices, introductory voice of Vikas & himself were also taken. Memo prepared in that regard was proved as Ex.PW-6/H. The cassette was claimed to have been sealed with seal of CBI and the seal impression was claimed to have been obtained on the Memo Ex.PW-6/I. He further claimed that the Transcript of the cassette containing spot conversation on the date of trap was prepared and he compared the conversation with the Transcript Ex.PW-6/J. He identified his signature on the same. The complainant Shri Jagdish Lal was claimed to have identified voices on the cassette. Witness also identified the Case Property.
During course of cross-examination by ld. Counsels for the accused persons, witness claimed that they had reached Ashok Kumar for the first time at about 11:00 A.M. and at about 12:15 P.M. the second time. He claimed that two or three persons might have been present near Ashok Kumar when they visited him around 12:15 P.M. He claimed that as far as he recollected, Ashok Kumar had not taken out any File from the record but had made some noting on the File produced by the complainant. It was claimed that they had remained with Ashok Kumar for about 5 to 10 minutes during the second visit. He further claimed that he did not observe any talks between Ashok and complainant while on way to room of R.P. Goel. He claimed that they did not go to seat of Ashok Kumar after transaction with R.P. Goel. Witness further claimed that he had been dealing with CBI while he was in Home Ministry prior to 1986 CC No. 95/2008 Page9 of 49 and could not say if he had gone to CBI 10 times or 20 times. He claimed that his prior visits were in his capacity as Desk Officer in Home Ministry. He denied the suggestion that he had been associated with activities of CBI as a Desk Officer and hence had made false statement in Court. He claimed that he came to know about work of the complainant regarding enhancement of load pending in DVB Office after reading the complaint. He claimed that he was not aware about procedural formalities in that regard. He claimed that he had been instructed to over hear the conversation between Jagdish Lal and R.P. Goel, to see passing of money and thereafter to give signal to CBI team. He claimed that he had not seen any document or file in hand of the complainant on that day prior to his giving signal. He claimed that they had again met the CBI team after being told by R.P. Goel regarding defect of TF report. Witness claimed that he only told CBI that Goel was demanding TF report and had not stated anything about money. It was claimed that they returned back to room of R.P. Goel after about 20 - 25 minutes. He denied the suggestion that no demand of money was made in his presence by R.P. Goel. He claimed that as the Digital Recorder was in pocket of the complainant, he did not know as to when it was switched "on" or "off". It was claimed that the Digital Recorder was having a Digital chip and that the cassette (Ex. P-21) was not in the Recorder. Witness also identified his introductory voice. He admitted that there were blank spaces and noise in the cassette. He denied the suggestion that there were some sentences in the transcript which did not exist when the cassette was initially played or that the speakers had been wrongly identified in the transcript. He denied the suggestion that the transcript Ex. PW-6/J was not prepared by listening to the cassette. He claimed that it was prepared in the forenoon in CBI office. He could not tell the time taken in preparation of the transcript. He denied the suggestion that CC No. 95/2008 Page10 of 49 on 12.7.2002 CBI had sent the original cassette to CFSL and hence there was no occasion for CBI to play the cassette on 12.7.2002. He claimed that two copies were prepared on normal cassettes from the cassette in the digital recorder and both were sealed in his presence. He denied the suggestion that he was deposing falsely. 11 PW-7 was the complainant Jagdish Lal who during course of his examination in chief reiterated allegation of prosecution against the accused persons. He claimed that it was on asking of R.P. Goel that he went to contact Ashok Kumar who told him that he (witness) will have to pay bribe of Rs.5,000/- for the accused R.P. Goel. The witness identified his signature on his complaint Ex. PW-7/A. He claimed that the digital recorder was given to him with instruction to switch it "on" upon entering office of either of the accused. He claimed that R.P. Goel had asked him to get the technical feasibility from office of DVB at Samaipur. He further claimed that he had switched "on" the digital recorder only during second visit to DVB before entering the Hall where Ashok Kumar had a seat. He claimed that when he showed the file to Ashok Kumar, Ashok claimed that file contained signature of JE while it had been marked to AE. He further claimed that when they again went to room of R.P. Goel, one or two persons were sitting there with him and he (witness) asked the said persons to go out. He claimed that thereafter he and Negi sat on the chairs and on accused asking about identity of Negi, he informed that Negi also wanted a connection whereupon Goel asked Negi to go out of the room. He claimed that when he asked accused Goel to do his work, Goel said "De do" and when he inquired "how much", Goel again stated "De do" but did not specify the amount and pointed out by moving showing five fingers of his hand as if asking for amount of Rs.5,000/- which had been settled. He further claimed that Goel inquired from him if he had paid anything to Ashok Kumar and upon his claiming CC No. 95/2008 Page11 of 49 that he (witness) had not paid anything, Goel asked him to pay Rs.500/- to Ashok also. Witness claimed that he asked the accused to pay Rs.500/- to Ashok out of money paid by him and that it was thereafter that Goel asked him to call his friend Negi inside. He claimed that before he could call Negi inside, R.P. Goel inquired as to what would he (witness) get paid to him (Goel) from Negi. He claimed that Negi came inside and then Goel asked him as to how much KW connection was needed and Negi informed that he would need 1 KW connection. Thereafter, witness deposed about the remaining trap proceedings. He claimed that voice on the digital recorder was transferred to two audio cassettes out of which one was sealed at the spot. Specimen impression of seal was also claimed to have been obtained on blank sheets and seal after use handed over to Srivastava. He also identified the case property. When the cassette was played and transcript shown to witness in court, he claimed that the dialogs were correctly marked in the transcript and contents of the cassette were correct.
During cross examination by Ld. Counsels for accused persons witness claimed that he had not noticed anything which was audible in the cassette but not written in Ex. PW-6/J. He claimed that besides this case, he was also a complainant in another trap case against Mr. Ahluwalia of MCD. He denied the suggestion that he was also a complainant in other cases. He claimed having switched "on" the voice recorder when he entered DVB office for the first time but he did not remember when he had switched it "off". He claimed that the Transcript Ex.PW-6/J was written after hearing earphone and getting confirmation of the same from him. He claimed that it was made from hearing the sound from the cassette on 12.07.2002. It was claimed that the Transcript was given to him and he was asked to hear the cassette and to verify the correctness written in the Transcription and to recognize the voice of the person CC No. 95/2008 Page12 of 49 appearing therein. He denied the suggestion that the cassette Ex.P-21 and Transcript Ex.PW-6/J were fabricated article/document. He claimed having switched 'On' the Digital Recorder for the first time when he came back from the Badli Office of DVB and entered Office of accused. He denied the suggestion of making a false statement in this regard. He claimed that directions of Mr. Goel with regard to TF Report was not recorded. He claimed that as he had been asked by CBI Officer to switch 'ON' the Digital Recorder when it appeared that the money transaction was to occur, hence, he did not switch 'On' the recorder at the first instance. He claimed having visited DVB Office on 26.06.2002 when he was asked by Ashok about the TF problem which was to be corrected. He admitted that there was no mention in his complaint Ex.PW-9/A about obtaining the Technical Feasibility Report (TFR). He claimed that it was on 26.06.2002 itself that he came to know about deficiency of TFR in his application. Witness admitted that he was supposed to deposit about Rs.40,000/- for his Electricity connection but had not deposited it prior to 29.07.2002. He admitted that Ashok Kumar used to tell him on various dates about defects in his application. He claimed having met Ashok Kumar 4 to 5 times prior to 29.07.2002 in connection with his Electricity Connection. He claimed that he did not remember if on 14.06.2002, in absence of Ashok Kumar, his File was taken by Kripal Singh to the accused. Witness claimed having signed Ex.PW-4/4 dated 27.05.2002 after receiving copy of the same as per endorsement X-X. He claimed that he did not remember if in absence of Ashok Kumar, he himself had brought the TF Form (Ex.PW-3/A) and produced the same through Kripal Singh before R.P. Goel. He claimed that he did not hand over the demanded amount of Rs.5000/- to Ashok as he wanted to give it to the person who was to accept it and wanted to give it to R.P. Goel from his hand. He denied the suggestion that his complaint Ex.PW-9/A was CC No. 95/2008 Page13 of 49 false. He denied the suggestion that he had intentionally introduced the name of accused Ashok in his conversation with Goel. He volunteered that infact Goel himself had stated about giving Rs.500/- to Ashok. He denied the suggestion that since Ashok had put up lot of objections in his Application Form and had not co-operated, therefore, he (complainant) introduced him as an accused. He claimed that he did not remember if the cassette brought for making Transcript on 12.07.2002 was sealed with cloth wrapper or unsealed. He also did not remember whether the cassette was sealed or not sealed after preparing the Transcript. He denied the suggestion that no cassette was played nor any Transcript prepared in his presence on 12.07.2002. He denied the suggestion that on 29.06.2002 he did not have any talk with accused R.P. Goel wherein accused had stated "De Do". He further denied the suggestion that the accused had never gestured towards him indicating five. He further denied the suggestion that no demand was made by Goel on 29.06.2002 or that he never accepted any money. When portion DX to DX on page No. 6 of Ex.PW-6/J was pointed out to the witness, he claimed that he did not remember as to why Mr. Goel had stated "Chalo Total Karo ............ Theek Hai". He denied the suggestion that the entire Transcription had been formulated to suit his interest in false implication of accused. He further denied the suggestion that the case was made out by him to create terror amongst DVB officials of the area who had been conducting surprise checks. He denied the suggestion that no signal was given by anyone or that Goel was merely pounced upon by CBI Officials on his asking. He denied the suggestion that no money was recovered from person of accused Goel or that he was deposing falsely 12 PW-8 Shri Vikas Srivastava was the other independent witness who claimed having gone to CBI office alongwith L.S. Negi on 29.6.2002 on direction of his senior officers. The witness then CC No. 95/2008 Page14 of 49 deposed about the pre-trap proceedings conducted in CBI office and identified his signatures on the Handing Over Memo of GC notes (Ex. PW-6/A) and the tape recorder Handing Over Memo (Ex. PW-6/B). He claimed that the Digital Recorder was given to Jagdish Lal with instructions to switch "on" the same for recording conversation. Thereafter, he deposed about the complainant and the shadow witness going to DVB Office, coming out and saying that they had to go for obtaining Technical Feasibility Report and also about their return and again going to DVB Office. He claimed that after Negi went inside the room, he was seen coming out after some time and then he flashed the signal. Witness claimed that on receiving the signal he alongwith the trap party rushed in the room where accused R.P. Goel was apprehended. It was claimed that Negi told about the transaction of bribe and the said fact was also confirmed by the complainant. Witness then stated about right hand wash, recovery of bribe amount by him, pant pocket wash which turned pink. He claimed that the digital recorder was taken from the complainant, played and that it contained the conversation between complainant and the accused persons. Recording was claimed to have been transferred onto audio cassette which was sealed with cloth wrapper and signed by independent witnesses. A copy was also claimed to have been prepared. Witness also identified his signatures on the personal search Memos of the accused persons and also the site plan and the Recovery Memo. He claimed that seal impression was also obtained on each page of the Recovery Memo and that seal was handed over to him after use. Witness claimed having again visited the CBI office on 12.7.2002 and about recording of sample voices of the accused. He claimed that specimen seal impression was also obtained on some blank sheets which were signed by him. Transcription of conversation dated 29.6.2002 was also claimed to have been prepared on 12.7.2002 after playing the CC No. 95/2008 Page15 of 49 cassette. He claimed that the brass seal which was used on 12.7.2002 was also handed over to him after use. Witness also identified the case property and produced the two brass seals.
During course of cross examination by Ld. Counsels for accused persons, witness claimed having reached the spot at about 11.30 AM. He claimed that he had never gone to office of CBI except for this case. He claimed that when the complainant and shadow witness reported back to the trap team about R.P. Goel demanding technical feasibility report, there was no talk with regard to digital recorder at that time. He claimed that the complainant at that time was having file but CBI officials had not asked as to why they were having the file. He claimed that the complainant and the shadow witness had left for TF report and came back after about half an hour claiming that TF report had been received. He further claimed that when the cassette was played on 12.7.2002 the transcription Ex.PW-6/J might have already been written. He denied the suggestion that the CBI personnel had entered room of R.P. Goel without receiving any signal. He denied the suggestion that CBI officers were having money in their hands when he entered the office. He claimed that it was he who had recovered the money. He denied the suggestion that accused R.P. Goel was weeping claiming that he had been falsely implicated. He denied the suggestion that first of all the digital recorder was played on the table of R.P. Goel or that it reflected his innocence. He denied the suggestion that he was deposing falsely under pressure of his Boss Negi who was related to CBI. He denied the suggestion that no hand wash of R.P. Goel was taken in his presence or that the documents were subsequently fabricated in CBI office or that he had merely put his signatures thereupon. Witness claimed that the cassette had been de-sealed in CBI office priior to playing it and was again resealed with the seals which was with him. He denied the suggestion that he permitted CC No. 95/2008 Page16 of 49 user of the seal for tampering the exhibits.
13 PW-9 M.M. Ansari was the trap laying officer who claimed that on 29.6.2002 the complaint was assigned to him for verification, registration of case and trap. The complaint was proved as Ex. PW-9/A. He claimed that he verified the complaint and thereafter FIR Ex. PW-9/B was registered. He claimed that requisition for arranging the independent witnesses had been sent one day before for some secret work and the complaint was explained to the entire trap team. Witness then reiterated facts regarding the pre-trap proceedings. He claimed that Negi was directed to act as shadow witness with direction to flash the signal by scratching his head by his hand after transaction of bribe. Digital recorder was claimed to have been handed over to the complainant with instructions to switch it "on" before contacting the accused. Witness then deposed about the trap proceedings. He claimed that he saw the complainant entering the room of R.P. Goel, thereafter room of Ashok Kumar and then again visiting room of R.P. Goel alongwith Ashok. He claimed that thereafter the complainant and the shadow witness came to him and told him that TF report from JE was to be procured. Witness claimed that thereafter all the trap team party members proceeded towards Rajasthan Udyog Nagar and then again came back to DVB Office Shalimar Bagh. Thereafter he deposed about apprehension of R.P. Goel after receipt of signal from the shadow witness. He also claimed about apprehension of Ashok Kumar and about the digital recorder being taken from complainant and being played, confirming the transaction. Money was claimed to have been recovered from the accused R.P. Goel by Virender Thakran. (Witness then volunteered that he did not remember who recovered the money). Hand wash was claimed to have been taken before recovery. He also deposed about pant pocket wash. Conversation in the recorder was claimed to have CC No. 95/2008 Page17 of 49 been transferred to two audio cassettes one of which was claimed to have been sealed and the other copy kept for investigation purpose. Office file Ex. PW-4/A was also claimed to have been seized. Witness also identified the case property and his signatures on the documents. He claimed having recorded statement of complainant on the same day in CBI office and about recording statement of both the independent witnesses on 1.7.2002.
During course of cross examination by Ld. Counsels for accused persons witness denied the suggestion that accused were falsely implicated or that there was no demand or acceptance of money in this case. He claimed that the Memos Ex. PW-6/A & B were typed by Inspector A.K. Singh on his dictation. Witness claimed that after they had proceeded for laying the trap, he learnt from the complainant that the TF report had not been attached by him alongwith his application. He denied the suggestion that the complainant told him that sanction of fresh connection was possible even without the TF report. He admitted that before departing, complainant had claimed about having completed all the necessary formalities. He could neither deny nor affirm that on 29.6.2002 erstwhile employee of DVB had become employees of NDPL and were no longer public servants. He admitted that the complainant had told him regarding R.P. Goel having told the complainant that without TF report, new connection could not be sanctioned. He admitted that during registration of FIR they were not aware that there was any deficiency in completion of formalities by the complainant. He claimed that during his stay at the spot, he had not enquired from any DVB official if in absence of TF report, a new electricity connection could be sanctioned or not. He claimed that the entire team members had learnt that it could not be sanctioned in absence of TF report. He denied the suggestion that the documents seized reflected that the complainant had never visited office of DVB CC No. 95/2008 Page18 of 49 on 29.6.2002 or that there was no recovery of money on that day. He denied the suggestion that the site plan is incorrect. He claimed that the digital recorder was played in office of DVB after its recovery from the complainant and after apprehension of the accused. He claimed that it did not contain recording of conversation between the complainant and the person from whom TF report was obtained. He claimed that when the recorder was played after the trap, the entire recording included the conversation between complainant and R.P. Goel on his first visit to office of DVB was heard and in the recorded conversation pertaining to first visit there was no demand of bribe by anyone. He denied the suggestion that infact the trap had failed when it was found that the electricity connection was not being sanctioned because of want of TF report. He also denied the suggestion that instant case was made as complainant was a CBI informer. He also denied the suggestion that the digital recorder had been consciously withheld in this case. He claimed that he did not remember as to who had gone to call the accused Ashok Kumar. He claimed that Ashok Kumar had confirmed from the complainant as to whether or not he had brought the bribe money and that the said words of confirmation were contained in the recorded version he heard on 29.6.2002. He denied the suggestion that no such confirmation was heard by him.
14 PW-10 Inspector Azad Singh was the officer to whom investigation was marked in the first week of July, 2002. He claimed having recorded specimen voices of the accused persons and about having sealed the cassette with the CBI seal brought by Vikas Srivastava. Transcription of spot conversation was also claimed to have been prepared in presence of independent witnesses by SI Prem Nath under his supervision from investigation copy of audio cassette. He claimed that the dialouges / sentences were marked in the transcript as per identification of voices by the complainant. The CC No. 95/2008 Page19 of 49 wash bottles and the cassettes were claimed to have been sent to CFSL, CBI. Witness also claimed regarding having collected the reports. He claimed having recorded statements of witnesses and about having applied for sanction for prosecution of the accused persons. He claimed that Shri N.P. Singh, AGM vide his letter Ex. PW-5/A informed that sanction was not attracted as the accused had seized to be public servants after privatization. He also claimed having filed the charge sheet. He claimed that he did not remember if any particular transcription had been given to accused before taking specimen voice. He also denied the suggestion that no identification of voices took place or that accused were innocent. He further claimed that only one CBI seal had been used in this case. He further denied the suggestion that the entire articles and documents of this case had been prepared fraudulently and falsely. 15 No other witness was examined on behalf of prosecution and accordingly after prosecution evidence was closed, statements of accused persons were recorded U/s 313 Cr. P.C. wherein they denied the allegations. He claimed that the present complainant Jagdish Lal nursed an old grudge against him ever since 1999. He claimed that the Enforcement Department on finding theft of electricity in premises where firm M/s Konark Auto Industries of Jagdish Lal was working from, had disconnected the connection and upon Jagdish Lal and others visiting his office, he had informed Jagdish Lal that the connection could be restored only after payment of electricity charges i.e. theft bill and that they also will have to deposit charges for the cable which had to be relaid. He claimed that Jagdish Lal and others kept visiting his office trying to influence him to get the work done without making payment. He claimed that they had also instigated and threatened him. He claimed that present case was outcome of revenge taken by Jagdish Lal against him. He claimed that in the present case, connection had been CC No. 95/2008 Page20 of 49 sought in the name of wife of Jagdish Lal and the TF report put up was incomplete. Accused claimed that he had directed his clerk Kripal Singh to discuss the matter with him and Jagdish got aggrieved from it. He further claimed that even earlier Jagdish had falsely implicated public servants in trap cases with the help of CBI. He further claimed that as soon as the file was put up before him after completion of TF report, he sanctioned the connection immediately. He denied having demanded or having received any money from the complainant Jagdish Lal. He claimed that while he got up from his seat and was going towards door of his office room for discussing some matter with the Executive Engineer, he found a hand going in his right side pant pocket and he said "ye kya ho raha hai, "na na na" and saw hand of the complainant inside his pant pocket. Accused claimed having raised an alarm and before he could regain his posture, two persons pounced upon him saying that he had taken money. He further claimed that in the meantime somebody hit something on back of his neck on spine and he became unconscious. He denied that any money was recovered from him and claimed that he had become unconscious. 16 Accused Ashok also denied allegations of prosecution against him. He claimed that the complainant had got irritated and agitated with him as he himself was calling upon the complainant to duly comply with the office procedures in respect of issuance of new connection.
17 Accused R.P. Goel chose to lead defence evidence and infact examined 10 witnesses in defence. Two court witnesses were also examined.
18 DW-1 Pradeep Kumar placed on record enquiry reports in respect of the accused persons alongwith copy of statements of witnesses. Copies were taken on record as Ex. DW-1/A, A1, B & B1. (OSR). He claimed that the Departmental Enquiries had not yet CC No. 95/2008 Page21 of 49 concluded as result of the criminal proceedings were awaited.
During course of cross examination by Ld.PP witness admitted that as per record the enquiries were initiated on basis of allegation of the accused having conspired together to receive bribe from complainant Jagdish Lal. He further admitted that charges against both were held to be proved by the Enquiry Officer and matter was only pending for imposition of penalty. 19 (On separate applications having been moved by accused R.P. Goel, the accused was permitted to get prepared CD of the recorded conversation contained in the cassette and to get it checked from Expert of his choice. Various orders to that effect were passed while disposing off applications M-37/13 (dated 17.7.2013); M-25/13 ( dated 29.5.2013); M-55/12 (dated 12.9.2012) & M-37/12 (dated 16.7.2012).
DW2 Shri Pankaj Jaiswal stated the procedure for preparing copy of pre-recorded cassttee onto CD. He further claimed that the CD produced was scientifically examined by Shri Vikas Saraswat who prepared the report Ex. DW 2/1. He claimed that he being the senior Forensic Expert of the Organization, had issued the report under his signature at point Mark X. During cross examination by Ld. PP, witness admitted that he himself had not scientifically examined the CD and had only issued the report. He denied the suggestion that the report was issued under influence of the accused to save him. He further claimed that his organization (IFO) had charged fee of Rs. 22,000/- for examining the CD.
20 DW3 Shri H.K. Vimal claimed that site plan of first floor of premises of DVB building, plot no. 1, Rajasthani Udyog Nagar for the period April 1999 to 30th June, 2002 was not traceble. He produced the current site plan Ex. DW3/A. He claimed that he could not tell the period when the sitting plan in the office was changed after CC No. 95/2008 Page22 of 49 30.06.2002.
21 DW4 Shri Sanjay Bhatia produced the medical record in respect of accused R.P. Goel including the original medical prescription card issued on 12.2.2001 containing entries till 4.9.2002. Copy thereof was produced as Ex. DW-4/A. He claimed that the entries in respect of 26.6.2002 and 29.6.2002 were at page No. 15610.
After seeking permission from the Court, witness was cross examined by Ld. Counsel for accused where he claimed that no record was maintained regarding timing of visit of patient to the Dispensary or how long patient remained in the Dispensary. He claimed that he could not say if on 26.6.2002 and 29.6.2002 patient in respect of entries at page No. 15610 had remained in Dispensary between 9.00 AM to 1.30 PM.
During cross examination by Ld. Officiating PP, witness claimed that he could not tell the time when the Dispensary used to open in 2002. He admitted that whenever employee himself appears for treatment, he is mentioned as "self" and name of the family member is mentioned in case patient is a family member. He admitted that Page No. 15610 of Ex. DW-4/A was not in his handwriting and that name of patient and not "self" was mentioned therein.
22 DW-5 Sandeep Bhure placed on record copies of records pertaining to connection K No. SB-507-1243237/NL & 1243229. Copies were taken on record as Ex. DW-5/1 & 2. He claimed that the other summoned records were not available in the system and the office.
After seeking permission from the court, witness was cross examined by Ld. Counsel for the accused wherein he denied the suggestion that he had intentionally not produced the records. (After fresh particulars were furnished to the witness over period of CC No. 95/2008 Page23 of 49 time, he produced some more records on 1.11.2013 and was further examined). Witness produced record in respect of Meter in the name of M/s Konark Auto Industries (Ex. DW-5/3) and in the name of Raghubir Singh (Ex. DW-5/4). He denied the suggestion that he had intentionally not brought the complete records.
During cross examination by Ld. PP witness claimed that he had been posted in TPDDL since 2007 and could not identify writing or signature of any official in the files Ex. DW-5/1 & 2 and had never dealt with files Ex. DW-5/1 to 4. He further admitted that the note sheets containing notings were duly paginated and were in running order with no sheets missing.
23 DW-6 Vikas Saraswat identified his signature on the report Ex. DW-2/1. He claimed that there were seven standards prescribed for voice identification. He further claimed that the actual time of the concerned file in the CD was 00:17:03 while the audio clip had a run time of 00:14:30. He claimed that on checking, recording in the CD was found to have been tampered with and detailed reasons in that regard were mentioned in the report. He further stated that there was too much disturbance in the audio clip alongwith background noise and anomalous jerks.
During cross examination by Ld. PP, witness claimed that the Indian Forensic Organization (IFO) was formed in 2009. He claimed that the CD was received on 21.2.2013. He further claimed that the recording had not been checked by him by way of a spectrogram. He further claimed that he had prepared a copy from the CD received when he took up the case for examination but he did not remember the date in that regard. To a specific question as to whether he had examined the CD provided to him, witness claimed that he had not done so. He claimed that the original recording was in .cda format and as such could have only been heard and not examined. He claimed having converted it to .wav CC No. 95/2008 Page24 of 49 (Wave format). He claimed that he had been informed by Shri Pankaj that permission in that regard had already been sought from the Court. He denied the suggestion that the report Ex. DW-2/1 was a false report. To a specific question, witness admitted that it was possible to edit the recording while converting it from .cda to .wav format. He claimed that additions/deletions observed in the recording were reflected at Points AW-1 to 7 in the report. He denied the suggestion that no addition or deletion was found in the recording or that even if there was any such addition or deletion, it was made during converting the recording from .cda to .wav. He denied the suggestion that he was not competent to issue the report due to lack of experience.
24 DW-7 Ajay Jain identified his signatures in the file already Ex. DW-5/3 and also that of Shri A.C. Aggarwal. He also identified his signature in the file Ex. DW-5/4.
After seeking permission from the court, witness was cross examined by Ld. Counsel for accused. During course of his cross examination witness admitted that as per Ex. DW-5/4, a joint raid was conducted at premises H-112, Khasra No.80, Gali No.6, Village Samaipur, Delhi on 31.5.1999. However, he could not say if the document "Nirakshan record" was in respect of raid conducted qua electricity theft. While referring to report Mark D-6/X, witness claimed that due to outstanding bills and raid qua theft of electricity at the address, new connection was not allotted in the name of M/s Konark Auto Industries. He admitted that Jagdish Lal had been called upon to furnish an affidavit in respect of file Ex,. DW-5/3 stating whether or not he was beneficiary in respect of connection of file Ex. DW-5/4. He further admitted that the new connection was not granted in Ex. DW-5/3 as Jagdish Lal infact was a beneficiary in respect of file Ex. DW-5/4. He claimed that in June, 2002 he was posted as Dealing Assistant in the same office where R.P. Goel was CC No. 95/2008 Page25 of 49 posted and used to visit his office room practically daily. He pointed out the place of seat of R.P. Goel in the site plan already Ex. PW-6/E and the place was Mark 'RP'. He also identified signature of R.P. Goel on notes dated 9.6.1999 in Ex. DW-5/4, note dated 16.6.1999 (R-1) and the restoration order dated 20.7.1999 (Mark D-7/C).
During course of cross examination by Ld. PP, witness claimed having worked with R.P. Goel for about 1 ½ years. He admitted that the "nirakshan record" was neither prepared by him nor did it bear his signature or that of R.P. Goel. He claimed that there was nothing on record of Ex. DW-5/4 to the effect that the raid was conducted at instance of R.P. Goel. He admitted that as per the note sheet, the process of restoration of connection was initiated by R.P. Goel. He further admitted that the name of Konark Industries being the user was not mentioned in the note dated 20.10.2003 where names of Raghubir Singh and Arun Kaushik were mentioned. He volunteered that Raghubir Singh was the registered consumer and only the user Arun Kaushik had approached for restoration and hence their names were mentioned. He admitted that no application for restoration of connection No. 128025 had been made by Konark Industries in 2003. He further claimed that he could not say if it had not made any such application as infact M/s Konark was never the user at the premises. Witness clarified that a new connection and a new meter were not one and the same thing and a new meter can be installed even on an old connection. He denied the suggestion that he was deposing falsely in respect of some of the points in order to save the accused being his ex-colleague.
25 DW-8 Shri Sumit produced FIR register in respect of FIR RC 47(A)/91; RC 56(A)/90 & RC 57(A)/90. Copies thereof were proved as Ex. DW-8/A, B & C respectively. He claimed that the original FIR registers had been brought by him from office record and were the true registers being maintained in office in ordinary CC No. 95/2008 Page26 of 49 course of working.
During course of cross examination by Ld. PP, witness claimed that he could not identify signatures appearing on any of the three FIRs and had no personal knowledge about the same. 26 DW-9 Rakesh Kumar produced Log Books / Diary of all vehicles of CBI for the period 25.6.2002 to 30.6.2002. Copy of entry dated 28.6.2002 in Log Book in respect of DL-3CJ-0723 (Gypsy) was proved as Ex. DW-9/A (at Point A). Copies of relevant entries in log book in respect of Motorcycle DL-03SP-0321 for 28.6.2002 were proved at Points A & A1 on Ex. DW-9/B. Copies of relevant entries in log book in respect of vehicle DL-3CJ-3951 for 28 & 29.6.2002 were proved at Points A & A1 on Ex. DW-9/C. Copies of relevant entries in log book in respect of Vehicle DL-6C-8000 for 28 & 29.6.2002 were proved at Points A, A1, A2 & A3 on Ex. DW-9/D. Copies of relevant entries in log book in respect of Motorcycle DL-3SX-3654 for 28 & 29.6.2002 were proved at Points A, A1, A2, A3, A4 & A5 on Ex. DW-9/E. Copies of relevant entries in log book in respect of Vehicle No. DL-3CJ-4298 for 28 & 29.6.2002 were proved at Points A, A1, A2, A3 & A4 on Ex. DW-9/F. During course of cross examination by Ld. PP witness claimed having joined CBI on 24.8.2012. He admitted that there were many Government Offices surrounding the CGO Complex where CBI office was situated. Due to want of knowledge, he could not say if in order to maintain secrecy, CBI used vehicles of other Government Offices rather than of its own vehicles. He claimed that he could not identify any writing or signature in respect of the entries of log books brought by him. He claimed that he had no knowledge regarding movements of CBI vehicles.
27 DW-10 Inspector Prem Nath was summoned but was not examined by the defence.
CC No. 95/2008 Page27 of 49 Besides the above-mentioned PWs & DWs, one Sayyed Ahmad Ali Hashmi was also examined as CW-1, who produced authority letter Ex. CW-1/X issued by Pankaj Jaiswal in his favour. He infact had appeared to prepare copy of cassette in form of CD on behalf of Pankaj Jaiswal but was not granted permission to that effect by the Court.
28 Dr. Rajinder Singh who was earlier examined as PW-2 on 7.12.2004 was resummoned and examined as CW-2. Infact, it transpired that photocopies of worksheet and forwarding letter proved as Ex. PW-2/DA & DB by the witness were not traceable on record. As testimony of the witness had been recorded on 7.12.2004 and thereafter, many Presiding Officers had changed and the case was received on transfer in this court on 10.12.2008, and primarily as the documents were only photocopies of the originals retained in CFSL file, with consent of Ld. PP for CBI and Ld. Counsels for both the accused persons, fresh copies thereof were prepared and exhibits mentioned thereupon. In view of facts and circumstances and lapse of time, this court was of the opinion that no useful purpose was likely to be served by initiating an inquiry in respect of the two missing photocopies. Witness produced the original CFSL file and the photocopies of the forwarding letter of CBI and the worksheet were taken on record.
During course of his final arguments it was submitted by Ld. PP that the complainant Jagdish Lal, shadow witness L.S. Negi, the other independent witness Vikas Srivastava, TLO & M.M. Ansari had duly proved case of prosecution against the accused persons. It was submitted by Ld. PP that present was a case based on circumstantial evidence as regards conspiracy between the two accused persons and based on direct evidence as regards acceptance of bribe amount by A-1 and its recovery thereafter. While referring to the transcript of the recorded conversation, it was CC No. 95/2008 Page28 of 49 emphasised by Ld. PP that demand, acceptance and admission qua acceptance of the bribe amount by A-1 and his being in conspiracy with A-2 were clearly spelt out . It was further submitted by Ld. PP that a false defence was being sought to be put up by the accused persons which was proved to be false even on bare perusal of the defence documents. As per Ld PP, while accused sought to lead defence evidence to the effect that he was in Dispensary on the day of incident and was not present in his office, no such suggestion had been given to any of the witnesses examined by the prosecution and rather A1 during course of his statement recorded U/s 313 Cr. P.C. had claimed that money had been forcibly thrust in his pocket to falsely implicate him. Attention of the Court in this regard was specifically drawn by Ld. PP to answer given by A-1 to question No. 48 put to him during course of recording of his statement U/s 313 Cr. P.C. While referring to testimony of DW-1, it was submitted by Ld. PP that Departmental Enquiries had been initiated against both the accused persons on basis of allegations regarding their having conspired together to receive bribe from complainant Jagdish Lal and that charges against both had been held to be proved by the Enquiry Officer and that matter was now pending before the Disciplinary Authority only for imposition of penalty. It was prayed that as prosecution has proved its case to the hilt, the accused persons be convicted in accordance with law.
29 Ld. Counsel for A-1 started her arguments by pointing out that prosecution had failed to examine material witnesses in this case and had not cited any explanation in this regard. It was submitted that CBI officials namely Virender Thakran, A.K. Singh, Prem Nath, Inspector Ajit, Naresh Kaushik and Mam Chand had not been examined despite being material witnesses. As per Ld. Counsel, presence of these witnesses at the spot and their having participated in the proceedings at one stage or the other was CC No. 95/2008 Page29 of 49 admitted by the prosecution, but still, for reasons best known to prosecution, none of them was examined in this case. It was also submitted that Kirpal Singh who admittedly had dealt with the file in question during absence of A-2 had also neither been cited nor examined. Ld counsel further submitted that the original complaint lodged by complainant never came to be proved by him in this case. In this regard, attention of the court was drawn to statement of complainant (PW-7) who reportedly proved the complaint as Ex. PW-7/A. It was emphasised by Ld. Counsel that the complaint on record came to be proved as Ex. PW-9/A by the TLO and was not Ex. PW-7/A. While referring to the complaint and testimony of the complainant, it was pointed out that the complainant had wrongly and falsely claimed that all the formalities in respect of his load connection had been completed prior to 29.06.2002 itself. It was pointed out that admittedly the Technical Feasibility Report ( TFR) was not on record when the complainant approached the accused on 29.06.2002. It was further claimed that although the complainant had put forward story regarding demand being made on 26.06.2002, there was nothing on record as to why he choose to file a complaint only on 29.06.2002 and not earlier. It was submitted that infact new connection had not been sanctioned as the file itself was not complete by 29.6.2002 and the needful was done by A-1 as soon as complainant obtained the TFR. As per Ld. Counsel there was neither any demand nor exchange of money in this case. It was further pointed out that although the complainant had been directed to switch on the DVR before entering into conversation with the accused, the same was not done by him. While referring to testimonies of witnesses and the documents, it was submitted that the complainant never switched "on" the DVR during his first visit to the accused and had allegedly switched it on only after returning with the alleged TFR i.e. during the second visit. It was pointed out that CC No. 95/2008 Page30 of 49 despite this, the complainant during course of his cross examination conducted on 24.5.2008 had claimed that he had switched "on" the voice recorder when he had entered the office of DVB for the first time and that the TLO PW-9 M.M. Ansari claimed during course of his cross examination conducted on 30.3.2010 that the entire recording contained in the DVR was heard after the trap and that included the conversation between the complainant and R.P. Goel on the first visit of the complainant to office of DVB. It was pointed out that the witness had further stated that in the recorded conversation pertaining to first visit, there was no demand of bribe by anyone. As per Ld. Counsel, these portions of testimonies of PW-7 & 9 made it clear that the recorded conversation put forth before the court was a tampered document and could not be relied upon. It was further pointed out that the shadow witness Negi who had been directed to give signal immediately after exchange of money took place, did not give any signal at that stage and rather entered inside the office and had talks with the accused for quite some time before coming out to give the signal. This, it was submitted, put prosecution case in doubt and more so in view of fact that the original DVR or the Chip which contained the original recording was never produced for consideration of the Court. It was also pointed out that none of the witnesses i.e. PW-6,7,8,9 & 10 claim that the conversation transferred from DVR to the cassette had been compared to be correct. It was submitted that this fact was not even mentioned in the Recovery Memo. While on this, it was submitted that all were silent as to which CBI officer had prepared the cassettes i.e. who had converted the conversation in DVR to the cassette. Genuineness of the cassette prepared in this case was also challenged on the ground that as per PW-8 the cassette had been desealed and resealed in CBI office and as per PW-10, the cassette was sealed with the CBI seal brought by PW Vikas. Doubt was also CC No. 95/2008 Page31 of 49 created on the Recovery Memo when it was pointed out that PW-4 V.P. Aggarwal who was depicted as being signatory to the same, had only signed page No. 7 & 8 of the document and had not signed pages No. 1 to 6. Strong objection was also raised regarding the TLO having recorded statements of the complainant and some witnesses U/s 161 Cr. P.C. During course of submissions made by Ld. Counsel for A-1, the recorded conversation was also heard by the Court in presence of Ld. PP and Ld. Counsels for accused persons. 30 Ld. Counsel for A-2 submitted that although charges were framed against A-2 for having acted in conspiracy with and having abetted taking of bribe by A-1, there was no evidence on record to support the said allegations. It was submitted that except for bald statement made by the complainant in his complaint and during course of his deposition in Court, there was no independent corroboration of the said allegations either from the Transcript or from any other witness. It was further submitted that the File in question had been dealt with by Dealing Assistant Kripal in absence of A-2 i.e. when A-2 was on leave, and hence it could not be inferred that A-2 wanted to deal with the File to extract money from the complainant. It was submitted that there was neither any direct nor any circumstantial evidence on record to show complicity of A-2 in this case. It was further submitted that in view of Section 165 A IPC, the complainant was no better than an accomplice and his testimony should not be relied upon without corroboration. In support of his submissions 31 In his reply arguments, while challenging testimony of DW-2 & DW-6, it was pointed out by ld. PP that the CD provided to accused under order of the Court for being examined by a Private Expert had infact never been examined and rather a copy of the said CD was prepared by DW-6 before examining the same. Attention of CC No. 95/2008 Page32 of 49 this Court was also drawn towards testimony of DW-6 wherein he had claimed about having been informed by Pankaj (DW-2) that permission had been sought from the Court for converting the CD from .cda to .wav. As per ld. PP, there was nothing on record to suggest that any such permission had ever been sought or was granted by the Court. It was further submitted that the allegation regarding A-2 having demanded bribe amount on behalf of and for A-1 had been made on 26.6.2002 and that at that stage none of the independent witnesses was in picture, nor the conversation was being recorded as the complaint had not been made to CBI by that date and was only made on 29.6.2002. It was further pointed out that allegation made in the complaint were duly reiterated by the complainant during course of his testimony as PW-7 and that no further corroboration was called for as there was nothing to discredit his testimony. It was also submitted that conspiracy is hatched in secrecy and executed in darkness and often it is very difficult to get direct evidence of conspiracy and that the same has to be deduced from circumstances of the case. Ld. PP also submitted that a complaint cannot be encyclopedia of all facts of the case and that complete details come forward only during course of testimony in Court. It was further pointed out that no time could be prescribed for completing the pre-trap proceedings and that the Court has to look into only the facts proved on record and that no inferences could be drawn. As per ld. PP, a false defence was sought to be put forward by the accused persons who could not be permitted to draw any benefit qua the same. As per ld.PP, the complainant in this case was like a "Whistle Blower" who was bringing to light the illegalities being committed in Government Offices.
32 During course of his submission, ld. PP has placed reliance on Krishna Ram Vs. State of Rajasthan [2009 Cri.L.J. 3436(SC)], M. Narsinga Rao Vs. State of Andhra Pradesh [2001 CC No. 95/2008 Page33 of 49 Cri.L.J. 515 (SC)] CBI Vs. G. Prem Raj [AIR 2010 SC 793], T. Shankar Prasad Vs. Ram Singh [ AIR 2004 SC 1242 (SC)], State of MP Vs. Ram Singh [2000 Cri.L.J. 1401 (SC), Karan Singh Vs. State of Haryana [2003 (5) LRC 75 (SC)], Musa Singh Vs. State [2013 (6) LRC 267 DHC], Ganga Bhavani Vs. R.P. Reddy [2013970 CRC], S.K.S. Gupta Vs. State of Maharashtra [VIII (2010) SC 185], State of U.P. Vs. Zakaullah [1998 Cri.L.J. 863 (SC)], Hazari Lal Vs. State (Delhi Admn.) [1980 Cri.L.J. 564 (SC)], Parmod Kumar Vs. State [AIR 2013 SC 3344], Ritesh Sinha Vs. State of U.P. [2013 Cri.L.J. 1301], Sucha Singh Vs. State of Assam [2003 Cri.L.J. 3876].
Ld. Counsel for A-1 has placed reliance on judgments i.e. Suraj Mal Vs. State (Delhi Administration) AIR 1979 S.C. 1408), Punjab Rao Vs. State of Maharashtra-II [(2001) CCR 121 S.C.], Tryamba Lilaji Binnar Vs. State of Maharashtra (2002) Crl. 3059 Bombay High Court, Khyama SagarBaina Vs. State [2003 (4) Crimes 273 Orissa High Court], Union of India through Inspector, CBI Vs. Purnandu Biswas IV [(2005) CCR 133 S.C.], V. Venkata Subbarao Vs. State [AIR (2007) S.C. 489], Ram Chander Vs. State [(2009) Crl.L.J. 4058 Delhi High Court], State of Maharashtra Vs. Datta Traya Shankar Diwakar [2009 (3) Crimes 428 Bombay], Juja Ram Vs. Union of India (IV) [ 2010 CCR 92 Rajasthan High Court], Nepal Singh Rawal Vs. CBI [2011 (184) (Delhi DLT 479)], Hari Ram Patel Vs. State of Madhya Pradesh [(2011) (4) Crimes 284 Madhya Pradesh High Court], M. Surbramani Vs. State I [2012 CCR 48], Yuvraj Vs. State of Maharashtra [(2013) (1) Crimes 116 Bombay], Leela Bai & Ors. Vs. State of M.P. [(2013) (2) Crimes 276 (Chattisgarh)], T. Subramanian Vs. State of Tamilnadu [(2006) 1 SCC 401], Prem Singh Yadav Vs. Cbi [(2011) (3) Crimes 426 Delhi], Ram Singh & Ors. Vs. Col. Ram Singh [AIR 1986 SC 3], Vishal Chand Jain CC No. 95/2008 Page34 of 49 @ VC Jain Vs. CBI [(2011) (II) Crimes 151 Delhi], Nilesh Dinkar Paradkar Vs. State of Maharashtra [(III) (2011) SLT 35], Niranjan Singh Vs. CBI [2013 (3) JCC 1870], U. Sree Vs. U. Sriniwas[1(2013) DMC 91 SC], Kaliya Vs. State of M.P. (III) [ (2013) DMC 405 S.C.], J. Yashoda VS. K. Shobharani [(2007) 5 SCC 730], M. Chandra Vs. M. Thangamuthu & Ors. [(2010) 9 SCC 712], H. Siddqui By LRs Vs. A. Ramalingam [(2011) (4) SCC 240], Ganpat Singh Vs. The State [AIR 1967 Raj. 10], Abdula Mohd. Pagarker Vs. State [1980 Crl. J. 220], C. Chenga Reddy & Ors. Vs. State of A.P. [1996 SCC (CRL-1205)], State Vs. K. Narsimachari [AIR (2006) SC 628], Dinesh Narayan Raijada Vs. State of Bihar [2007Crl. J. 453], C.M. Girish Babu Vs. CBI I [(2009) CCR 499 SC], State of Maharashtra Vs. Dhyaneshwar Laxman Rao Wankhade III [2009 CCR 700 SC], Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan [(2013) Crl.J. 3276 SC], Man Singh Vs. Delhi Administration [AIR (1979) SC 1455], Subash Chand Chauhan Vs. CBI [117 (2005)DLT 18 Delhi High Court], S.K. Singhal Vs. State, Delhi High Court decided on 03.05.2013, Bimal Kishore Pandey Vs. CBI [2013 (3) JCC 1736, L.K. Advani & Ors. Vs. CBI [(1997) JCC 294].
Ld. Counsel for A-2 has placed reliance on State of Kerala Vs. P. Sugathan [2000 Cri.L.J. 4584], State of Madhya Pradesh Vs. J.B. Singh [2000 Cri.L.J. 4591], Panalal Damoar Rathi Vs. State of Maharashtra [1979 Cri.L.J. 936 AIR 1979 SC 1191], Manga Vs. State of Haryana [1979 Cri.L.J. 939 AIR 1979 SC 1194), Banarasi Dass Vs. State of Haryana [AIR 2010 SC 1589], M. Jagdish Viyas & Ors. Vs. Union of India & Ors. [AIR 2010 SC 1596], State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede [(2009) 15 SCC 200], Trilok Chand Jain Vs. State of Delhi [1977 Cri. L.J. 254], C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala [AIR 2009 SC 2022], Deokar Exports Pvt.
CC No. 95/2008 Page35 of 49
Ltd. Vs. New India Assurance Company Ltd. [AIR 2009 SC
2026], Surkhi Lal Vs. Union of India [131 (2006) Delhi Law Times 12], Ujjwal Sarin Vs. Om Parkash Baldev Krishan & Ors. [131(2006) Delhi Law Times 19].
33 This Court has given thoughtful consideration to arguments advanced from both the sides and has also gone through the records as well as judicial pronouncements relied upon by both sides.
34 There are no two opinions regarding fact that defence evidence cannot be brushed aside or is at a lower pedestal than the Prosecution evidence. However, testimony of defence witnesses has to be looked into with little greater care and caution as those witnesses are coming in defence of the accused and their presence is secured by the accused themselves. In this case, spot conversation recorded had been transferred onto a cassette 'Q'. After seeking permission from the Court, A-1 got prepared a CD of the conversation to get it checked from an Expert of his choice. He got it checked and produced DW-2 and DW-6 in that regard. Now, DW-2 during course of his testimony claimed that his organization i.e. Indian Forensic Organization had charged fee of Rs.22,000/- for examining the CD. DW-6 during course of his testimony, to a Court question had specifically claimed that the original CD provided to the Organization had not been examined. As per the witness, a copy of the CD was prepared when the case was taken up for examination. Infact, what has transpired from testimony of the witness is that the CD furnished was in .cda format and had to be converted to .wav format before it could be examined. Interestingly, DW-6 claimed that he had been informed by Shri Pankaj (DW-2) that permission had been sought for the same from the Court. It be brought on record that no such permission was ever sought for from the Court nor such a permission was granted by the Court. In view of the aforesaid, this CC No. 95/2008 Page36 of 49 Court finds itself disinclined to place any reliance on the Report Ex.DW-2/1, in as much as it was not a Report based on the CD furnished by the Court and rather was report in respect of some other CD prepared and examined in the IFO itself. The CD examined at IFO in respect of which Report Ex.DW-2/1 was furnished, was never produced in Court. So much for the defence evidence regarding the conversation being doctored.
35 Let us now turn back to the Prosecution story. As per case of Prosecution, the present case was initiated on basis of complaint lodged by the complainant Shri Jagdish Lal. In the said complaint dated 29.06.2002 (Ex.PW-7/A and Ex.PW-9/A), the complainant had claimed that on 26.06.2002, A-2 Ashok had asked him to get bribe of Rs.5000/- for A-1 R.P. Goel and only then his load would be sanctioned. The complainant had however claimed in the complaint that all the formalities regarding his application for power connection had been fulfilled and only load sanctioning was pending which had to be sanctioned by R.P. Goel. The complainant when examined as PW-7 in Court had claimed that he had applied for Electricity connection and had submitted the documents, but his case was not being processed by the accused. It had further transpired from his testimony that Technical Feasibility Report (TFR) which was essential in his case had not yet been received. During course of his testimony, the witness specifically claimed that on 29.06.2002, accused R.P. Goel asked him to get the TFR from Office of DVB. It was during course of his cross-examination that the witness stated that it was on 26.06.2002 that he had been informed by Ashok (A-1) about the TFR problem and it was then that he came to know that Technical Feasibility Report was deficient in his application. He claimed that he had been so informed by the Dealing Clerk after going through his application, but this fact had not been told by him to CBI Officer nor had it been mentioned in his complaint. In this CC No. 95/2008 Page37 of 49 regard it would be relevant to refer to testimony of PW-3 Shri D.K. Sharma who had specifically claimed that the Electricity load could be sanctioned only after completion of the Feasibility Report. He specifically claimed having completed the Feasibility Report on 29.06.2002 when the incomplete Report was brought to him by the consumer personally. What transpires from the above is that the load being claimed by the complainant could not have been sanctioned till the TFR was completed and that TFR was completed only on 29.06.2002. Moreover, the requisite amount of Rs.40,000/- had admittedly not been deposited by complainant with Department till 29.06.2002. That being the position, it is apparent that the load could not have been sanctioned prior to 29.06.2002 and in view thereof, there does not appear to be any substance in allegation made by the complainant that the accuseds were postponing sanctioning of his load on one ground or the other with intention to derive some money from him.
36 Out of 15 witnesses cited by the Prosecution, only 10 appear to have been examined in this case. Some of the noticeable witnesses not examined by Prosecution, as rightly pointed out by ld. Counsel for A-1, were Inspector Virender Thakran, Inspector A.K. Singh, S.I. Prem Nath, Naresh Kaushik and Mam Chand. What further transpires is that two material witnesses viz. Kripal Singh & Inspector Ajit were neither cited nor examined by the Prosecution. Kripal Singh was the Dealing Assistant who had dealt with the complainant's File from 03.06.2002 to 20.06.2002 during absence of A-2 and his name appears in note sheet of the File. Inspector Ajit was a signatory to practically all the Memos prepared in this case i.e. Ex.PW-6/A, B, C, D & F. Interestingly, out of the CBI Officers who had participated in the raid and who were signatories to the Handing Over Memos and Recovery Memo, only TLO Inspector M.M. Ansari has been examined as a prosecution witness in this case. No CC No. 95/2008 Page38 of 49 explanation whatsoever has been tendered on record regarding non- examination of the aforementioned material witnesses.
As per provisions of Section 114 [Illustration (g)] Indian Evidence Act, the Court may presume that evidence which could be and is not produced would, if produce, be unfavourable to the person who withholds it.
37 As per case of Prosecution, a Digital Voice Recorder had been handed over to the complainant for recording the likely conversation which may take place between him and the accused. Document prepared in that regard (Ex.PW-6/B) mentions that the complainant was instructed to switch 'On' the Recorder before coming in contact with the accused. To the same effect was testimony of prosecution witnesses. It is also admitted case of Prosecution that the complainant Shri Jagdish Lal and the shadow witness L.S. Negi had visited Office of the accused persons twice on 29.06.2002. In first instance, they had gone there alongwith DVR from the CBI Office and on second occasion after obtaining the TFR, they had returned back to Office of the accused persons. Now, there is no conversation recorded of the first visit. The 'Spot Conversation' as contained in the cassette 'Q' and as mentioned in the Transcript Ex.PW-6/J only relates to second visit of the complainant and the shadow witness to Office of accused persons. The first conversation has not seen light of the day. The complainant when examined as PW-7 claimed having switched 'On' the Voice Recorder when he entered Office of DVB for the first time. However, he admitted that there was no recording of that period in the cassette Ex.P-21. Subsequently, he claimed that he had not switched 'On' the DVR during his first visit as he had been asked by CBI Officers to switch it 'On' when it appeared that money transaction was to take place. It appears from this that the complainant knew beforehand that no talk regarding money transaction was going to take place during the first CC No. 95/2008 Page39 of 49 visit. Even as per case of the Prosecution, the DVR was not switched 'On' during first visit and only came to be switched 'On' during second visit i.e. after receipt of TFR. In this regard, it would be relevant to go through testimony of the TLO Inspector M.M. Ansari, who during course of his cross-examination specifically claimed that after the trap, the Digital Recorder was played and the entire recording contained therein was heard including the conversation between complainant and R.P. Goel on the first visit of complainant in Office of DVB. He further admitted that in the recorded conversation pertaining to first visit, there was no demand of bribe by anyone. Now testimony of the TLO who is only CBI Officer from the raid party examined in this case, goes to show that conversation during the first visit had been recorded and not only was it recorded, it was also heard by him by playing the DVR. Firstly, this part of testimony of the TLO runs contrary to the Prosecution story itself and secondly no such conversation or Transcript thereof has been placed on record.
38 As per Section 65 (c), Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. What has happened in this case is that the original recording was made in the DVR which was then allegedly converted onto a cassette and the original recording deleted by the Investigating Agency. Prosecution now seeks to prove the conversation copied in the cassette as secondary evidence in place of the original "Primary Evidence" which was original recording. In considered opinion of this Court, Prosecution cannot be permitted to seek benefit of the wrongs done by its Investigating Agency. Nothing stopped CBI from retaining the original conversation (as recorded in the DVR or its CC No. 95/2008 Page40 of 49 Memory Chip) for examination by CFSL and for perusal of the Court. The original conversation in this case had apparently been destroyed by CBI itself and now, CBI is precluded from reaping benefits of its own wrong.
39 Not only this, a bare perusal of the Transcript (Ex.PW-6/J) of the conversation in the cassette (Q) 'Ex.P-21' goes to show that the Transcript is not as per the actual recording. There are many sentences in the recording which do not appear in the Transcript and many words appearing in the Transcript do not appear in the conversation.
Moreover, the Transcript is also not in consonance with what has been deposed to by witnesses in Court. As per case of Prosecution, the transcript primarily contained conversation between the complainant Shri Jagdish Lal, A-1 R.P. Goel & A-2 Ashok. The transcript does mention about some voice of unidentified persons, a lady and also only one sentence 'Aath Hazaar Mange Hain' by the shadow witness L.S. Negi. However, testimony of the said L.S. Negi (PW-6) and the complainant PW-7 as regards the talks which took place at the spot are quite different from what appears in the recording Ex.P-21 and Transcript Ex.PW-6/J. In this regard, it would be pertinent to mention that PW-6 during course of his testimony in court has claimed that R.P. Goel asked him to go out of the room. Nothing to that effect appears in the recorded conversation nor in the Transcript. He had further claimed having heard the conversation regarding demand "Yahan Rakh Dijiye". Again these words are not reflected in the cassette or the Transcript which only mentions "Yahan Rakho". PW-6 had further claimed that he was called inside the Office by R.P. Goel who enquired from his as to what product was manufactured in his factory or if he needed Two Phase or Three Phase connection. Here again no such recording appears in the cassette or the Transcript. PW-7 claimed that he alongwith L.S. CC No. 95/2008 Page41 of 49 Negi and Ashok went to room of R.P. Goel where one or two persons were sitting with Goel and the witness himself asked the said persons to go out. Nothing to that effect appears in the cassette Ex.P-21 or the Transcript Ex.PW-6/J. He had further claimed that when he informed R.P. Goel that L.S. Negi also wanted a connection, R.P. Goel asked Negi to go out of the room. Nothing to that effect appears in the cassette Ex.P-21 or the Transcript Ex.PW-6/J. He further claimed that when he asked R.P. Goel to do his work, R.P. Goel asked him "De Do" and when he enquired how much, R.P. Goel again stated "De Do". Nothing to that effect appears in the cassette Ex.P-21 or the Transcript Ex.PW-6/J. He further stated that R.P. Goel enquired from him if he had paid anything to Ashok Kumar where upon he told Goel that he had not paid anything to Ashok, upon which Goel asked him to pay Rs.500/- to Ashok also. Nothing to that effect appears in the cassette Ex.P-21 or the Transcript Ex.PW-6/J. He further stated that he asked Goel to pay Rs.500/- to accused Ashok out of the money paid to him. Nothing to that effect appears in the cassette Ex.P-21 or the Transcript Ex.PW-6/J. The complainant had further claimed that when L.S. Negi came inside, Goel asked him as to how many KW connection was needed by him and that Negi informed that he would need 1 KW connection. Nothing to that effect appears in the cassette Ex.P-21 or the Transcript Ex.PW-6/J. PW-6 towards end of his testimony had claimed that when they reached in Commercial Hall (where A-2 used to sit), complainant had said that he had been booked for Electricity theft also. Nothing to that effect appears in the cassette Ex.P-21 or the Transcript Ex.PW-6/J. All this goes to show that what was stated by witnesses in Court as having transpired at spot is not reflected in the spot conversation nor it is transcribed. That being the position, this Court does not find itself inclined to accept either of the two.
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40 It would be pertinent to mentioned that there is nothing
on record regarding A-2 Ashok having made any demand of bribe for himself or on behalf of A-1 Goel. When the recorded conversation was sent to CFSL Expert alongwith sample voices of A-1 & A-2, some portions from both the recordings were separated and matched by the Expert Dr. Rajinder Singh (PW-2). As regards voice of A-2 Ashok, he returned a finding that the questioned and the sample voice were probable voice of the same person (Ashok Kumar). However, as regards the questioned and sample voice of R.P. Goel , he returned finding that the same were similar in respect of general, linguistic & phonetic features but could not be compared by voice spectograph due to high interfering background noise. To the same effect was his testimony in Court wherein the witness has reiterated his opinion in Report. That being the position, there is not conclusive opinion of the Voice Expert as regards the alleged questioned voice of R.P. Goel.
41 PW-6 had specifically claimed that the DVR was taken back from the complainant after the hand wash and pant pocket wash of A-1 had been taken. Infact, all the witnesses of recovery i.e. PW-6, PW-7, PW-8 & PW-9 have claimed that the DVR was taken back after the washes were taken. It was at that stage that the DVR was claimed to have been switched 'Off'. If that was the position, all the conversations after apprehension of A-1 till the washes, including alleged recovery of cash from his pant pocket should have been reflected in the recorded conversation. The Cassette Ex.P-21 and the Transcript Ex.PW-6/J do not reflect anything to that effect. This necessarily implies that either the recording and Transcript produced in Court are incomplete or else no such proceeding as are being claimed ever took place at the spot. In any case, case of the prosecution becomes suspect.
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42 Before leaving this topic, it would be pertinent to point
out that the cassettes had been sent to CFSL by way of forwarding letter which came to be proved as Ex.PW-2/DB. A perusal of the said forwarding letter goes to show that as per facts mentioned, the conversation that took place during the trap proceedings were recorded and cassette was sealed with CBI seal at the spot. The source of exhibit mentioned in the letter is stated to be the conversation recorded at the spot during trap proceedings and taken into possession at the spot. Now, what is noticeable here is that the entire forwarding letter does not mention a word about the conversation having been originally recorded in DVR and having been transferred onto the cassette. It appears to have been projected as if the cassette forwarded to CFSL contained the originally recorded conversation of the spot. It belies imagination as to why this material was hidden by the Investigating Agency from the Expert who was to examine the cassette.
Not only this, the conversation transferred to the cassette on 29.06.2002 was claimed to have been sealed with CBI seal which as per case of Prosecution had been handed over to the independent witness Shri Vikas Srivastava with direction to keep the same in safe custody and to produce it as and when directed by Court. The sample voice recording as per case of Prosecution was done on 12.07.2002 when again the cassette containing the sample voices was sealed with another CBI seal and seal handed over to Vikas Srivastava. Now testimonies of witnesses in this regard do make an interesting reading. The said Shri Vikas was examined as PW-8. He claimed that on 29.06.2002 seal after use was handed over to him. He further stated on on 12.07.2002, the sample voice containing cassette was again sealed with another CBI seal which too was handed over to him after use. Witness had produced both the seals in Court during course of his testimony recorded on CC No. 95/2008 Page44 of 49 20.03.2007. Interestingly, during course of his testimony recorded on 21.02.2008, witness had claimed that the cassette had been de- sealed in the CBI Office prior to playing it and the same was re- sealed after playing. The witness at that stage was referring to 12.07.2002 when the Transcript was prepared. The Investigating Officer on 12.07.2002 was Inspector Azad Singh who has been examined as PW-10. During course of his testimony, he claimed that on 12.07.2002 after sample voices of the accused persons were recorded, the cassette was sealed with the seal of CBI brought by Vikas Srivastava and seal after use was handed back to Vikas. During course of his cross-examination, he had specifically claimed that only one CBI seal had been used in the present case. This testimony of the Investigating Officer when looked into in comparison with testimony of PW-8 Vikas and the fact that Vikas had produced two CBI seals in Court, puts sanctity of seal in doubt. 43 A brief run back of the facts detailed hereinabove reveal that the complainant had approached CBI with a complaint regarding his application being not disposed off by the accused persons on flimsy grounds. However, he had categorically claimed in Court that the connection could not have been sanctioned till TF Report was completed and that the requisite amount of Rs.40,000/- had not been deposited by him with the Department till 29.07.2002 (29.06.2002). The complainant was handed over a DVR with direction to switch it 'ON' before commencing of his conversation with the accused persons, but for reasons best known to him, complainant switched 'ON' the DVR only during second visit to the accused and not during the earlier visit on 29.06.2002. Again, no explanation has come on record in this regard. The shadow witness L.S. Negi had been instructed to give signal as soon as the transaction was over. Admittedly, he did not do so and as per the Transcript Ex.PW-6/J, there was recorded conversation noted in CC No. 95/2008 Page45 of 49 more than 4 pages of the Transcript before the alleged signal was made. Once again no explanation has come on record in this regard. The conversation recorded in the DVR was not retained and rather was converted on to a cassette and and the two recordings were not compared by any of the witnesses after the said transfer. Inherent disregard to sanctity of seal allegedly used on the cassette has already been set out in detail in earlier portion of this judgment. The questioned recording was sent to CFSL for voice identification and as per the report, the alleged voice of A-1 in the questioned recording appeared to be 'similar to his sample voice. At the most, story of the Prosecution turns out that the two voices were similar in nature. Non-examination of any of the CBI officials who were part of the Trap team i.e. except TLO, also casts dark shadow of clouds on the Prosecution story and leads this Court to draw an inference that in case they were examined by the Prosecution they would not have supported its case. It would be pertinent to mention that two of the material witnesses i.e. Kripal Singh & Inspector Ajit ( who was signatory to the Memos) were not even cited in the list of witnesses. This Court is not oblivious of the fact that it is the quality and not quantity of witnesses which is material. However, the quality of testimony of the TLO, as already discussed hereinabove, leaves much to be desired. The TLO (PW-9) apparently had disowned the very prosecution story when he claimed having heard the recorded conversation between complainant and R.P. Goel which had been recorded during his first visit. It be reiterated that as per Prosecution story, the said conversation was not even recorded. He firstly claimed that recovery was effected by Inspector Virender Thakran and then claimed he did not remember who recovered the money, little realising that as per Prosecution story, it was recovered by independent witness.
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44 Much reliance has been placed by the Prosecution on
the presumption as laid out U/s. 20 PC Act. Bulk of authorities relied upon by ld. PP were in this respect. However, the presumption is rebuttable one, in as much as the Section itself mentions "............. It shall be presumed, unless the contrary is proved, ................". It was observed in V.V. Subarao Vs. State [2007 Cri.L.J. 754 (SC) that the presumption could be raised only if demand is proved and even in such case, burden on the accused does not have to meet the same standard of proof as is required to be met by the Prosecution. As already noted hereinabove, the accused have succeeded in rebutting the presumption from the infirmities of the prosecution case itself and hence the judicial pronouncements being relied upon by ld. PP do not come to his rescue.
45 Besides the aforesaid, there are some other aspects of the case which deserve to be mentioned. The complaint apparently is silent in respect of the date, time and place where bribe was to be given. Even during course of his testimony in court, the complainant has nowhere mentioned that the date, time or place in this regard was fixed by A-1 or by A-2. It surprises as to how the complainant of his own could fix the date, time and place of giving bribe and how the CBI machinery followed his dictate in this regard without having verified the claim.
46 As per case of the prosecution and as per deposition of PW-10 Inspector Azad Singh, he was the investigating officer on 12.7.2002 when the transcript was prepared. It was claimed to have been prepared under his supervision. Surprisingly, the transcript Ex. PW-6/J does not bear signature of PW-10 Inspector Azad Singh. Rather, it bears signature of SI Prem Nath, who, as already mentioned has not been examined in this case. Also pertinent is to mention that as per testimony of PW-10, copy of transcript had not been sent to CFSL. Prosecution has not challenged this part of his CC No. 95/2008 Page47 of 49 testimony. If this averment of PW-10 (Investigating Officer) is to be believed, the questioned recording and the specimen recording had both been sent to CFSL without any transcript of the questioned conversation (Q) recorded in Ex. P-21. That being the position, it belies imagination as to how the CFSL Expert could ascertain as to who the speakers were in the questioned conversation and whose voice was to be compared with whom. No clarity in this regard has been put forward by the investigating or the prosecuting agency. 47 As regards claim made by the accused persons to the effect that complainant has not proved the complaint as there is no Ex. PW-7/A on record, it is apparent on perusal of the records that marking of Ex. PW-7/A on the complaint (D-1) appears to have been omitted due to oversight / mistake at the time of recording of testimony of PW-7 on 19.3.2007. During entire trial, identity of the complaint (D-1) being Ex. PW-7/A had not been disputed by the accused persons and the same appears to have been re-exhibited as Ex. PW-9/A only because there was an oversight in not mentioning "Ex. PW-7/A" on this document. Not much benefit can be derived by either of the parties in this regard.
48 This court finds itself in agreement with submission made by Ld. PP that the defence sought to be adduced by the accused persons was not conclusively proved by them. But then, the accused is only required to probablise his defence and is not supposed to meet the standard of proof which prosecution is required to meet while proving its case. Prosecution is required to prove its case to the hilt on basis of legally admissible, coherent evidence and the distance between "may be true" to "must be true"
has to be travelled by the prosecution of its own. Prosecution cannot take any benefit of weaknesses of the defence. In that view of matter, where the prosecution story is liable to be rejected on basis of facts put forth by the prosecution itself, falsity or weaknesses of CC No. 95/2008 Page48 of 49 defence cannot be looked into by the Court.
49 Keeping in view all the aforesaid facts and circumstances of the case, this court is of considered opinion that prosecution has failed to bring home guilt of the accused persons and has failed to prove the charges which were framed against the accused persons. In that view of matter, this court is of considered opinion that both the accused persons are entitled to an order of acquittal and they are accordingly ordered to be acquitted in this case.
Announced in the open court (M.R. SETHI)
on 28.2.2014 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
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