Cbi vs . Raj Kumar on 25 April, 2013

[Cites 48, Cited by 0]

Delhi District Court

Cbi vs . Raj Kumar on 25 April, 2013

                               1

                       CBI Vs. Raj Kumar

                         AC No. 25/11/09


            IN THE COUR T OF RAJIV MEHRA
              SPECIAL JUDGE CBI (PC ACT)
         KARKARDOOMA COURTS : EAST DISTRICT
                        DELHI

RC No. 50 (A)/08
AC No. 25/11/09


CBI


VERSUS

Raj Kumar
S/o Late Sh. Bahoran Singh
R/o 244/89, Flat No.5,
School Block, Mandawali,
Delhi - 92.

                         JUDGMENT

1. This case has been registered on the basis of a written complaint dated 28.11.2008 of PW-5 Bablu Tiwari complainant u/S 7 of PC Act 1988 against accused Raj Kumar who at the relevant time was posted as Head Constable at PS Kalyan Puri. This 2 CBI Vs. Raj Kumar AC No. 25/11/09 complaint is Ex.PW1/A.

2. It has been alleged in this complaint that on 26.11.2008 there was a quarrel between complainant Bablu Tiwari and his neighbour Ram Surat. It is alleged that in the night on 26.11.2008 HC Raj Kumar (accused herein) alongwith one constable took the complainant and his nephew Shiv Kumar to P.S. where HC Raj Kumar demanded a sum of Rs. 5000/- as bribe from the complainant assuring that no action be taken against him in the event if the amount is paid by him to the accused. It is alleged in the complaint that in the event of non payment of the demanded amount within next 2-3 days, the complainant may be implicated in the criminal case and may also be arrested in the matter. Since the complainant did not want to pay the bribe amount, as per prosecution case, he filed this complaint Ex.PW1/A with SP CBI who endorsed the same to Inspector Sandeep Choudhary to verify and lay a trap. It is mentioned in the complaint that the complainant has brought a sum of Rs. 3000/- with him.

CBI Vs. Raj Kumar AC No. 25/11/09

3. The prosecution case is that a raiding party was formed. CBI arranged two independent witnesses. The prosecution case is that since the complainant was not having any mobile phone with him he was arranged by the CBI one mobile phone no. 9968081436 to record his possible conversation with the accused. The prosecution case is that the complainant contacted the accused Raj Kumar on his mobile telephone no. 989126395 at about 3.20 pm from the above said mobile given by the CBI. This conversation was simultaneously heard by all the persons including independent witnesses and it was simultaneously recorded in Digital Voice Recorder. The prosecution case is that in this conversation, the complainant told the accused that he could arrange a sum of Rs. 3000/- only and accused agreed to accept this amount and asked him to come to the PS at about 5.00 pm and give a call before coming. This conversation was transferred to an audio cassette from DVR. The cassette is marked as Q1. The cassette Q1 was sealed and was taken into possession by the CBI.

4. The prosecution case is that the complainant produced a sum of Rs. 3000/- by giving six GC notes of Rs. 500/- each 4 CBI Vs. Raj Kumar AC No. 25/11/09 number of which were noted down separately in handing over memo. As per prosecution case these notes were smeared with phenolphthalein powder and CBI arranged a demonstration to explain the chemical reaction of phenolphthalein powder with sodium carbonate to all the trap team members. These GC Notes of Rs. 3000/- were returned to the complainant with a direction to hand over the same to accused Raj Kumar on his demand or to some other person as per his instructions. As per prosecution case S.K. Pant the independent public witness was directed to act as a shadow witness. The other independent witness A.K. Arun was directed to remain with the trap party. As per prosecution case all the pre-trap proceedings including the currency notes numbers were recorded in handing over memo Ex.PW5/C which was signed by all the members of the trap including the independent witnesses and the complainant.

5. The case of the CBI is that at about 5.30 pm all the members of the raiding party reached near the P.S. Kalyan Puri. The complainant contacted the accused on his mobile number. Accused asked him to come inside the police station. This 5 CBI Vs. Raj Kumar AC No. 25/11/09 conversation was simultaneously recorded in DVR. The complainant and shadow witness PW6 S.K. Pant entered the police station Kalyan Puri whereas other members of the raiding party including independent witness PW7 A.K. Arun and TLO PW10 Inspector Sandeep Choudhary remained outside the P.S. It is the further case of the CBI that at about 6.30 pm the shadow witness S.K. Pant gave one telephone call from his mobile to Inspector Rajesh Chehal on his mobile informing him about the completion of the transaction of bribe upon which raiding party alongwith TLO Inspector Sandeep Choudhary and other team members including independent witness A.K. Arun rushed inside the P.S. The accused was challenged by the TLO for his demand and accepting Rs. 3000/- as bribe from the complainant. He was in police uniform having his name plate. He was apprehended by the CBI team. Accused was taken to the room of PW2 Inspector Roshan Lal the then SHO in the PS who was also informed about the matter. The recovery of the currency notes was affected from the right side pant pocket of the accused in the presence of SHO inspector Roshan Lal and other members of the team by PW-7 A.K. Arun. The number of these notes on comparison were found tallying with the 6 CBI Vs. Raj Kumar AC No. 25/11/09 number recorded in handing over memo. The shadow witness confirmed the demand and acceptance of the amount of Rs. 3000/- by the accused. His version was also corroborated by the complainant. The spot conversation also transferred in a cassette marked as Q2 from DVR which also confirmed the demand and acceptance of the amount by the accused. The prosecution case is that the colourless solution of Sodium Carbonate was prepared Handwash of right hand of the accused and also of his right side pant pocket was separately collected. The colour of the solution turned into light pink colour which was transferred into the clean glass bottles which were marked as RHW and RSPPW. These bottles were sealed and seized by the TLO.

6. Accused was arrested vide arrest cum personal search memo Ex.PW2/B. A rough site plan Ex.PW6/B was drawn at the spot. According to the prosecution case all the proceedings were drawn vide recovery memo Ex.PW2/A. Before preparation of the recovery memo some documents of duty roaster of PS Kalyan Puri of accused were collected from SHO Inspector Roshan Lal.

CBI Vs. Raj Kumar AC No. 25/11/09

7. The further case of the prosecution is that next day on 29.11.2008 specimen voice sample of accused was collected vide memo Ex.PW6/C. The transcriptions of recorded cassette Q1 was prepared on 28.11.2008 vide Ex.PW6/A (PW5/C) whereas the transcription of the recorded cassette Q2 was prepared on 29.11.2008 which is Ex.PW5/E. Voice identification of the accused was also got done vide memo Ex.PW5/D from complainant Bablu Tiwari in the presence of independent witnesses.

8. In the course of the investigation IO submitted RHW and RSPPW to the CFSL. Cassette Q1, Q2 and S1 were also sent to CFSL for expert opinion. Both gave positive result. IO obtained the sanction for prosecution of the accused being a public servant and submitted the charge sheet u/S 7 and 13 (2) read with Section 13 (1) (d) PC Act 1988.

9. Charge was accordingly framed against the accused for the aforesaid offences vide order dated 22.02.2010. Accused denied the charge and claimed trial.

CBI Vs. Raj Kumar AC No. 25/11/09

10. To prove its case prosecution has been relying upon the evidence of 13 witnesses as follows :

1. PW-1 Ashish Kumar, Scriber of the complaint Ex.PW1/A.

2. PW-2, Inspector Roshan Lal, the then SHO PS Kalyanpuri in whose presence the recovery of currency notes was allegedly effected from the accused.

3. PW-3 Sh. V.B. Ramteke, Sr. Scientific Officer who has proved the CFSL report of handwash. His report dated 16.02.2009 is Ex.PW3/B.

4. PW-4 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd. who has produced the mobile phone record of mobile phone no. 9891263957 of accused Raj Kumar of the relevant period alongwith call detail records proved by him as Ex.PW4/C.

5. PW-5 Babloo Tiwari, Complainant. He has been declared hostile.

6. PW-6 Sh. Sanjeev Kumar Pant, Shadow 9 CBI Vs. Raj Kumar AC No. 25/11/09 Witness.

7. PW-7 Sh. A.K. Arun, witness to recovery of currency notes.

8. PW-8 Sh. Anand Mohan, Sanctioning Authority.

He has proved sanctioned order Ex.PW8/1.

9. PW-9 Dr. Rajender Singh, Director CFSL who has examined two audio cassettes Q1 and Q2 and also sample voice cassette of the accused and proved his report Ex.PW9/1.

10. PW-10 DSP Sandeep Chaudhary, TLO.

11. PW-11 Inspector Prem Nath, CBI, part IO and member of the raiding party.

12. PW-12 Inspector R.C. Sharma, CBI, part IO.

13. PW-13 DSP Girish Bhardwaj, he has submitted the charge sheet.

11. In his statement recorded u/S 313 Cr.P.C accused denied that he made demand of bribe amount from complainant Babloo Tiwari or any money was accepted or received by him. It is submitted that all the documents were fabricated. It is stated that 10 CBI Vs. Raj Kumar AC No. 25/11/09 he has been involved in this case as PW-1 Aashish Kumar was holding a grudge against him as Aashish Kumar was a bad element of the area where he was a beat officer and he was inquiring number of cases against him including a complaint made by his wife against him. It is submitted that Aashish had even carried unsuccessful raid in the past on 27.04.2007 and also threatened him to get implicated falsely in a CBI case.

12. In defence accused examined six witnesses as follows :

DW-1 Sant Ram Pardhan in whose presence compromise Ex.PW5/DA dated 27.11.2008 was recorded between complainant Babloo Tiwari and Ram Surat.

DW-2 Ram Surat, injured in quarrel with complainant in incident of 26.11.2008.

DW-3 HC Chaman Pal MHC(R) who brought the original duty register of PS Kalyan Puri dated 28.11.2008 to prove copy of which has been proved by him as Ex.DW3/A. He also produced DD register 11 CBI Vs. Raj Kumar AC No. 25/11/09 of PS Kalyanpuri dated 28.11.2008 proved by him as Ex.DW3/B and Ex.DW3/C. DW-4 is SI Veer Jyoti from ACB CBI. As per the witness no complaint was received in ACB Branch against H.C. Raj Kumar, PS Kalyan Puri on 27.04.2007.

DW-5 is SI Shiv Pal Singh the then DO of PS Kalyan Puri on 28.11.2008.

DW-6 is Jagmal Singh who was the reliever of DW-5 as DO on 28.11.2008.

13. It has been submitted by the Ld. PP that even if the complainant Bablu Tiwari (PW-5) in the present case has turned hostile but still there is ample evidence on record to prove the case of the prosecution against the accused of his demanding the bribe of Rs. 5000/- from complainant and accepting Rs.3000/- from him. It has been submitted by the Ld. PP that the complainant even if not favouring the prosecution in the witness box completely has admitted atleast that he alongwith PW-1 Aashish had gone to CBI office on 28.11.2008 and alongiwth the CBI team had also gone to 12 CBI Vs. Raj Kumar AC No. 25/11/09 the police station Kalyan Puri. It has been submitted by the Ld. PP that PW-5 Bablu Tiwari has also admitted that Rs. 3000/- was handed over by him to accused Raj Kumar though this money according to Bablu Tiwari was passed on to him to hand over the same to injured Ram Surat. It is submitted that the later part of the statement of the complainant is not true and correct.

14. It has been submitted by the Ld. PP that the case of the prosecution to the extent of passing of Rs. 3000/- by the complainant to the accused is also corroborated by the statement of the independent witness PW-6 S.K. Pant who is a shadow witness and recovery of this amount affected from the right side pant pocket of the accused is not only proved by the statement of PW-6 S.K. Pant, PW-7 A.K. Arun, PW-10 Inspector Sandeep Choudhary TLO, PW-11 Inspector Prem Nath but also by the statement of PW-2 Inspector Roshan Lal who was the then SHO of P.S. Kalyan Puri. It has been submitted by the Ld. PP that the money since recovered from the pant pocket of the accused a presumption has to be drawn under Section 20 of the PC Act, 1988 against the accused Raj Kumar of his having accepted the amount as 13 CBI Vs. Raj Kumar AC No. 25/11/09 gratification and accused did not offer any explanation about this recovery of the bribe amount affected from him.

15. It has been submitted by the Ld. PP that the case of the prosecution is also supported by the report of PW-3 V.V. Ramtek who has proved the CFSL report of hand wash and right side pant pocket wash of the accused as Ex.PW3/3 and also by cassette Q1 and Q2 having recorded conversation of pre-trap proceedings and spot conversation. According to the Ld. PP since PW-8 Anand Mohan has proved his sanction against the accused as Ex.PW8/1 there is enough evidence brought on record which successfully proves the charge under Section 7 and also under Section 13 (1)

(d) PC Act against the accused of his demanding Rs.5000/- and receiving and accepting the bribe amount of Rs. 3000/- from the complainant.

16. It has been submitted by the Ld. PP that the defence put up by the accused of there being a compromise Ex.PW5/DA dated 27.11.2008 got recorded between the complainant Bablu Tiwari and Ram Surat by DW-1 Sant Ram Pardhan is only a made 14 CBI Vs. Raj Kumar AC No. 25/11/09 up defence. According to the Ld. PP if there was any compromise of this nature there was no occasion than with the accused to visit the CBI office next day on 28.11.2008 and file complaint Ex.PW1/A against the accused. It has been submitted by the Ld. PP that prosecution has proved its case beyond reasonable doubt that accused Raj Kumar has made a demand of Rs. 5000/- from the complainant to clear his name from the incident of quarrel with DW-2 Ram Surat on 26.11.2008. The prosecution according to him through the statement of PW-2 Inspector Roshan Lal has also proved the document of duty roaster of the relevant date to show that at the relevant date and time the accused was working as a beat officer and inquiry of the quarrel incident of 26.11.2008 between complainant and Ram Surat was assigned to him by PW-2.

17. According to the Ld. PP the statement of DW-1 Sant Ram is not reliable. He has been influenced by the accused as he was residing in the beat area of the accused and similar is the position with the statement of DW-2 Ram Surat injured in the incident of quarrel on 26.11.2008. According to the Ld. PP the 15 CBI Vs. Raj Kumar AC No. 25/11/09 defence put up by the accused of his false implication because of the personal grudge against him by PW-1 Aashish Kumar is without substance. According to the Ld. PP as per the statement of DW-4 SI Veer Jyoti appearing from ACB CBI, no complaint was received in ACB Branch against accused Raj Kumar on 27.4.2007. According to the Ld. PP PW-10 Inspector Sandeep Choudhary TLO has made a statement in the opening of his cross examination by defence counsel that though there was a complaint against accused Raj Kumar on 27.4.2007 but on verification this complaint was found untrue and no raid was conducted. According to the Ld. PP similarly the statement of DW-5 SI Shiv Pal Singh and DW-6 Jagmal Singh who was reliever of DW-5 on the relevant date from his duty as duty officer is also of no assistance to the defence of the accused in view of the statement of PW-2 Inspector Roshan Lal of being a witness to the recovery of the currency notes and also about his presence in the police station at the relevant time.

18. The Ld. PP has also been relying upon C.M. Sharma V. State of A.P. 2011 CC Cases NOC SC 6 where it was held that voluntary acceptance of bribe leads to conviction. He has also 16 CBI Vs. Raj Kumar AC No. 25/11/09 been relying upon Narendra Champaklal Trivedi and Ors. V. State of Gujarat 2012 VI AD (S.C.) 71 where it was held that presumption under Section 20 of the Act is obligatory if accused is found in possession of the bribe amount. He has also been relying upon Hari Kishan V. State (2011) 4 CC Cases 485 Delhi. In this case the complainant died before he could entered the witness box. One of the independent witness turned hostile but his testimony corroborated the filing of the complaint upon which conviction was upheld. He has also been relying upon Hazari Lal V. State 1980 (2) SCC 390. In this case Court upheld the conviction only on the basis of testimony of TLO alone. The complainant did not support the case of the prosecuted but the Court believed the testimony of TLO and upheld the conviction.

19. On the other hand It is submitted by the defence counsel that even when there is a presumption u/S 20 PC Act the prosecution is still required to prove the fundamentals of criminal law i.e. the prosecution is duty bound to prove its case beyond reasonable doubt against the accused. He has been relying upon the judgment State V. Dhaneshwar Rao (S.No.1) 2009 Part IV 17 CBI Vs. Raj Kumar AC No. 25/11/09 RCR (Crim.) 217 SC and also Ravindra Kumar V. State 1976 SCC (Crim.) 566 SC.

20. Next it is submitted by him that this presumption under Section 20 is available only for the offence u/S 7 and not for the offence u/S 13 (1) (d) PC Act and this presumption cannot be raised unless demand is proved. Reliance has been placed on the judgment V. Venkat Suba Rao V. State 2007 Cr.LJ 754 (SC).

21. It is submitted by the Ld. defence counsel that complaint Ex.PW1/A is the back bone of this case. This complaint is proved by PW-1 Aashish the alleged scriber of the complaint. It is submitted by the defence counsel that the CBI has failed to connect PW-5 complainant in this case because PW-5 is not the signatory of this complaint. As per the CBI case the complaint was written by PW-1 and signed by PW-5 but PW-5 admitted that complaint does not bear his signature. Even all the other material witnesses including independent witnesses, TLO and IO admitted that this complaint is unsigned.

CBI Vs. Raj Kumar AC No. 25/11/09

22. It is submitted by the ld. defence counsel that contrary to the record PW-5 has been given a suggestion that complaint Ex.PW1/A is signed by him and was confronted with portion D to D of Ex.PW5/B which is the statement of the complainant recorded u/S 161 Cr.P.C. It is submitted by defence counsel that if this was so the complaint bearing signature of the complainant has been concealed by the CBI. It is submitted by defence counsel that even PW-1 has stated so about the signing of the complaint by the complainant in his cross examination made on 25.8.2010 (Page 2 bottom line) stating that the complaint was written by him and signed by Bablu Tiwari and then again admitted that it does not bear the signature of Bablu Tiwari. It is submitted by Ld. defence counsel that even PW-6 S.K. Pant shadow witness has stated at Page no.1 of his statement that complainant told him that complaint was written by his friend and signed by him. It is submitted by the defence counsel that in his cross examination PW-6 made on 21.12.2011 (page 8) stated that signature of the complainant Bablu Tiwari were seen by them in CBI office and then admitted that PW1/A does not bear the signature of Bablu Tiwari. During the cross examination made on 3.2.2012, PW-6 S.K. Pant has shown 19 CBI Vs. Raj Kumar AC No. 25/11/09 his ignorance about identifying the complaint Ex.PW1/A as being the same complaint which was shown to them in pre-trap proceedings. Similarly PW-7 is talking about only signed complaint but in his cross examination made on 3.5.2012 he has stated that complaint Ex.PW1/A does not bear the signature of Bablu Tiwari but insisted that complaint Ex.PW1/A was shown to him in pre-trap proceedings.

23. It is submitted by Ld. defence counsel that handing over memo Ex.PW5/C at first page at point DX speaks of 'duly signed complaint'. It is submitted by the defence counsel that PW-10 Inspector Sandeep Choudhary is the TLO. In his cross examination dated 9.8.2012 (page 12) he has admitted that the complaint Ex.PW1/A does not bear the signature of Bablu Tiwari anywhere. PW-11 Inspector Prem Nath is the subsequent IO. In his cross examination dated 17.10.2012 (page 1) he has stated that it is must that the complainant should sign the complaint. PW-12 Inspector R.C. Sharma is the subsequent IO of the case. In his cross examination made on 25.9.2012 (Page 2) he has admitted that it was in his knowledge that the complaint has not been signed by 20 CBI Vs. Raj Kumar AC No. 25/11/09 Bablu Tiwari but he examined scriber of the complaint PW-1 i.e. Aashish. It is submitted that there is no explanation why Bablu Tiwari was not examined for his signatures on the complaint.

24. It is submitted by the Ld. defence counsel that in handing over memo Ex.PW5/C the date of the complaint at point DA is mentioned as 28.10.2008 whereas the complaint infact is dated 28.11.2008.

25. It is submitted by the defence counsel that even otherwise the complaint Ex.PW1/A is not legally proved. Aashish PW-1 cannot be said to have proved the contents of the complaint.

26. Next it is submitted by the defence counsel on the point of initial demand. He has been relying upon the judgment Panna Lal V. State 1980 SCC (Crim.) 121, Ram Chander V. State 2009 (4) RCR (Crim.) 880, Subhash Parbat V. State AIR 2003 HC 2169, Banarsi Dass V. State AIR 2010 HC 1589. It is submitted that in all the judgments it has been held that it is the duty of the prosecution to prove the initial demand. It is submitted by the 21 CBI Vs. Raj Kumar AC No. 25/11/09 defence counsel that as per the case of the CBI, PW-5 Bablu Tiwari complainant is the only witness to prove the initial demand and Ex.PW1/A is the only document to prove the same. It is submitted by the defence counsel that there is no corroboration of initial demand. It is submitted by him that the status of the complainant is that of an accomplice in a crime and his statement needs to be corroborated by other convincing evidence before the same can be safely relied upon. It is submitted by the defence counsel that PW-10 Inspector Sandeep Choudhary TLO in his cross examination dated 9.8.2012 (Page 15) has stated that no corroborative evidence was revealed to him from the complainant about the initial demand. He has further admitted that except complaint Ex.PW1/A there was no other evidence with him with regard to initial demand. It is submitted by the defence counsel that as per PW1/A and as per case of the CBI the nephew of the complainant namely Shiv Kumar was also taken to police station by the accused on 26.11.2008 when demand of Rs. 5000/- was made. It is submitted that PW-10 has admitted in his statement dated 9.8.2012 (page 15) that he did not inquire from Shiv Kumar about the initial demand of the accused from the 22 CBI Vs. Raj Kumar AC No. 25/11/09 complainant. It is submitted by the defence counsel that PW-11 Inspector Prem Nath in his cross examination dated 17.10.2012 (page 2) has stated that he does not remember whether any corroboration was sought by him from the complainant regarding initial demand while recording his statement Ex.PW5/B and further stated that there is no other evidence on record regarding initial demand except complaint Ex.PW1/A. It is submitted that even PW-6 S.K. Pant shadow witness and PW-7 A.K. Arun recovery witness have shown their ignorance about any inquiry by the TLO regarding corroboration of initial demand by the complainant.

27. It is submitted by the defence counsel that there is no evidence of initial demand. He has also been relying upon the judgment of our own High Court in Roshan Lal V. State 2011 part-I JCC 102 Delhi where it has been held that filing of the complaint with the CBI by the complainant cannot be taken as a substitute for evidence of the proof of allegation.

CBI Vs. Raj Kumar AC No. 25/11/09

28. Next it has been submitted by the defence counsel that the CBI has even not proved the spot demand by the complainant. He has been relying upon V. Venkat (Supra), T. Subramaniam (Supra) 2006 SCC 401, Subhash Parbat (Supra), Roshan Lal (Supra) and Bhagwan Singh V. State 2010 (4) LRC 73 Delhi. It is submitted that in these cases it was held that initial demand as well as the spot demand both must have to be proved by the prosecution.

29. It is submitted by the defence counsel that as per the own case of the prosecution there are two witnesses of the spot conversation, PW-5 complainant and PW-6 Shadow witness. It is submitted that PW-5 has not supported the prosecution case. On this point he has been relying upon Vishal Chand V. State 2011 Part III RCR (Criminal) 304 Delhi. In this case complainant had turned hostile and stated that accused did not make any demand and rather the complainant offered Rs.4000/- and posed currency notes into the pocket of the pant of the accused. The court held that in absence of direct evidence regarding the demand and acceptance by the accused, it is not safe to base conviction on 24 CBI Vs. Raj Kumar AC No. 25/11/09 basis of statement of panch witnesses who have neither heard the conversation nor have seen the transaction of passing of the bribe money.

30. It is submitted by the defence counsel that even in his cross examination made on 4.8.2011 the complainant in the instant case has admitted that the amount pass over by him to the accused was compromise amount to be handed over to injured Ram Surat and it was not a bribe amount. It is submitted that the shadow witness admitted in his cross examination dated 21.12.2011 (page

12) that he did not overhear the conversation between the accused and the complainant. It is submitted by the defence counsel that there is no evidence that money was demanded by the accused from the complainant at the spot as bribe. It is submitted by defence counsel that PW-6 S.K. Pant shadow witness in his cross examination (page 3) dated 3.2.2012 has replied that he heard that accused said 'Aa Jao Dekh Lenge'. It is submitted that this is not the part of cassette Q2 Ex.P15 or transcription Ex.PW6/E. It is submitted that PW-10 Inspector Sandeep Choudhary TLO during his cross examination dated 16.8.2012 at (page 8) has admitted 25 CBI Vs. Raj Kumar AC No. 25/11/09 that shadow witness told him that he could not overhear the conversation. It is submitted by the defence counsel that in Bal Kishan vs. State JT 1987 (1) SC 281, State vs. Mohan Lal 2009 (2) RCR (Cr.) 812 SC, State Vs. C.P. Rao 2011 (2) CCC 182 SC, M. Abbas vs. State 2001 (II) AD (Cr.) SC 337 and Sunil kUmar Sharma vs. State 2007 (3) Crimes 160 Delhi, C.M. Girish Babu vs. CBI 2009 (2) RCR (Cr.) 134 SC, L.K. Jain vs. State 124 (2005) DLT 371, State Vs. Girdhari Lal 2011 (4) RCR (Cr.) 245 Delhi it was held that if the crucial talks were not heard by the shadow witness than the demand at crucial stage is not taken as proved.

31. It is submitted next that mere recovery of the bribe amount is not enough if demand is not proved because demand is sin-a-qua known for bringing home the guilt of the accused. He has been relying upon the judgment Rakesh Kapoor V. State 2013 (I) RCR (Cr.) 211 SC, Roshan Lal vs. State (Supra), Suraj Mal V. State AIR 1979 SC 1408, Subhash Parbat vs. State (Supra) and Anand Swarup V. State 1988 Cr.L.J. 756 Delhi. It is submitted that to prove the acceptance and recovery the prosecution has examined PW-5, PW-6, PW-7 and PW-11 and PW-2 qua recovery 26 CBI Vs. Raj Kumar AC No. 25/11/09 only. All these witnesses except PW-5 has stated about the recovery of the amount from the accused. It is submitted that PW-5 complainant has made a statement on 04.11.2011 (page 16) that this money was recovered from DW-2 Ram Surat.

32. It is submitted by the defence counsel that as per Section 114 (g) Indian Evidence Act, a Court may presume existence of certain facts. According to him CBI in the present case has withheld (a) the ownership of mobile no. 9868081436 and 9968081436 which were the mobile phone of CBI which is mentioned in handing over memo Ex.PW5/C alleged to be used in proceedings by CBI. It is submitted as per the own case of the CBI the mobile phone no.9868081436 was never used whereas mobile phone no. 9968081436 was used only once. It is submitted that CBI has been withholding the call details of these two mobile phones of the relevant period. It is submitted that as per the statement of PW-10 TLO dated 16.8.2012 (Page 10) the call details of two mobile phone were not collected by him. It is submitted that subsequent IO Inspector Prem Nath PW-11 has admitted that he did not collect the call details records of these two mobile phones 27 CBI Vs. Raj Kumar AC No. 25/11/09 referring to page 8 of the statement dated 17.10.2012. It is submitted that in view of the evidence coming on record these two mobile phones cannot be connected with the investigation of this case.

33. It is submitted by the defence counsel that (b) as per the case of CBI, Manish Srivastava is the person who had applied the phenolphthalein powder on currency notes and has given the demonstration during the pre-trap proceedings. It is submitted that PW-10 in his statement in chief dated 9.8.2012 (Page 3) has submitted that Inspector Karan Arya is the scriber of recovery memo Ex.PW2/A. It is submitted that CBI has been withholding these two witnesses. It is submitted by the defence counsel that Addl. SHO Mahender is an attesting witness to recovery memo Ex.PW2/A but he has not been examined by the CBI and it would lead to adverse presumption against the prosecution u/S 114 (g) Evidence Act.

CBI Vs. Raj Kumar AC No. 25/11/09

34. It is submitted by the defence counsel that the CBI has also been withholding (c) the recording of the conversation which has taken place immediately before entering in the police station on the date of incident on 28.11.2008 between complainant and the accused. He has been referring to the cross examination of PW-10 Inspector Sandeep Choudhary TLO dated 16.8.2012 (page 3) where he has admitted of recording this conversation. He has submitted that statement of PW-10 (page 3) dated 16.8.2012 in cross examination by the defence counsel shows that cassette Q2 does not contain the said conversation and same has been withheld by the CBI. He has also been referring to the statement of PW-11 Inspector Prem Nath dated 17.10.2012 (page 5) which does not mention of any telephonic conversation before entering the P.S. He has also been referring to the statement of PW-12 Inspector R.C. Sharma (Page 2) dated 25.9.2012 where he has shown ignorance about recording of above conversation from previous IO.

CBI Vs. Raj Kumar AC No. 25/11/09

35. It is submitted by the defence counsel that (d) the CBI has also concealed the mobile telephone numbers and call details of S.K. Pant and Inspector Chehal so as to prove the passing over 'signal' of completion of bribe transaction given by PW-6 S.K. Pant to Inspector Chehal. It has been submitted that Inspector Chehal has not been examined by the prosecution. It is submitted that only Mr. Chehal could prove that he has received a missed call as a 'signal' from the shadow witness which was pass on by him to the TLO. He has also been referring to the statement of PW-10 dated 9.8.2012 (page 5) examination in chief, where it has been stated by the witness of receiving of a call of S.K. Pant by Inspector Chehal informing him about the completion of bribe transaction. It is submitted that PW-10 is not talking about ' missed call ' by S.K. Pant. He has also been referring to the cross examination of PW-10 dated 16.8.2012 (page 9) where he has admitted that he has not mentioned in the recovery memo Ex.PW2/A or in any other document about the mobile phone number of S.K. Pant and Inspector Chehal. It has been submitted by him that PW-11 in his cross examination dated 17.10.2012 (page 7) has admitted that he did not collect call detail records of mobile phone number of Mr. 30 CBI Vs. Raj Kumar AC No. 25/11/09 Chehal and shadow witness S.K. Pant to show any 'signal' about completion of the transaction was so given by S.K. Pant to Mr. Chehal. It is submitted by the defence counsel that PW-12 Inspector R.C. Sharma the last IO has made a statement dated 25.9.2012 (page 4) showing his ignorance about collecting of the call details of Mr. Chehal and S.K. Pant. It is submitted by the defence counsel that in charge sheet page '7' it finds mentioned of giving of a call informing about completion of bribe transaction and not a missed call.

36. It is submitted by Ld. defence counsel that in the absence of call details of PW-6 S.K. Pant and Inspector Chehal, the presumption will go against the prosecution that no 'signal' was pass over by Mr. Pant to Mr. Chehal. He has been relying upon Rakesh Kapoor (Supra), Babu V. State of Kerala (2010) 9 SCC 189 wherein according to the defence counsel a presumption was raised against the CBI for not collecting the call details.

CBI Vs. Raj Kumar AC No. 25/11/09

37. It is submitted by the defence counsel that there are various contradictions regarding various timings involved in entire case. It is submitted that there is a contradiction in the statement of all the witnesses and records regarding the time of call made by complainant PW-5 Bablu Tiwari from CBI to the accused during pre- trap proceedings. It is submitted that as per handing over memo Ex.PW5/C this call was made at 3.20 p.m. It is submitted by the defence counsel that PW-1 Aashish was present through out in the pre trap proceedings alongwith the complainant. In the cross examination on 27.11.2012 (page 1) according to him the accused was called at about 2.30 or 3.00 pm by the complainant. Referring to the statement of PW-6 dated 21.12.2011 (Page 3) it has been submitted that the time given by this witness is 3.00 pm. Referring to the statement of PW-7 dated 3.5.2012 (Page 12) it is submitted that according to the witness the first call was made by the complainant to the suspect at 3.30 p.m. Referring to the statement of PW-11 in cross examination dated 17.10.2012 (Page No.2) it is submitted that PW-11 says that he met TLO at 3.00 pm and according to the defence counsel in that situation the call cannot be made before 3.00 pm because the handing over memo was 32 CBI Vs. Raj Kumar AC No. 25/11/09 prepared after reaching of Inspector Prem Nath. It is submitted by the defence counsel that CDR Ex.PW4/C third page shows the call time as 3.24 p.m.

38. It is submitted by the Ld. defence counsel that other inherent weakness in the prosecution case is that Sanction Order Ex.PW8/1 is invalid. It is submitted that Sanction to prosecute a public servant is a pre-requisite under the PC Act 1988. PW-8 Anand Mohan is the 'Sanctioning Authority' in this case. It is submitted by the defence counsel that application of mind by the Sanctioning Authority should be reflected in the 'Sanction Order'. He has been referring to the cross examination of this witness.

39. It is submitted that in CBI V. Ravinder Singh 1995 Part 2 Crime 85 Delhi statement u/S 161 Cr.P.C and report u/S 173 Cr.P.C were not placed before the 'Sanctioning Authority' and the Court held that there was total non application of mind on the part of Sanctioning Authority.

CBI Vs. Raj Kumar AC No. 25/11/09

40. It is submitted by the defence counsel that in the present case the order Ex.PW8/1 is silent about production of report u/S 173 Cr.P.C. before PW-8 Anand Mohan. He is also relying upon State of Karnatka V. Ameer Jaan AIR 2008 SC 108. It is submitted that in this case the material collected during investigation was not made available before the Sanctioning Authority whereupon it was held that sanction was granted without application of mind.

41. It is submitted that in the present case PW-8 does not know whether cassette was produced before him, whether transcriptions were produced before him. The Sanction Order is undated. No personal hearing was given to the accused. The date and number of the CFSL reports is not mentioned and there is no mention about any part of investigation which has taken place after registration of the RC and before arrest of the accused and it all goes to show that Sanction accorded vide order Ex.PW8/1 was without application of mind.

CBI Vs. Raj Kumar AC No. 25/11/09

42. The next point submitted is on the contradiction about sealing of currency notes Ex.P1 to Ex.P6. It is submitted by the defence counsel that witnesses have contradicted each other on the issue of sealing of currency notes. He has been relying upon Om Parkash V. State of Haryana AIR 2006 SC Page 894 (Para

18). In this case there was a contradiction in the statement of witnesses about sealing of currency notes and it was held that plantation cannot be ruled out. It is submitted by the defence counsel that according to PW-6 S.K. Pant (referring to his cross examination dated 3.2.2012 Page 4) everything including the currency notes were kept in a sealed pullanda by the TLO. It is submitted that PW-7 in his statement dated 13.5.2012 is not sure whether currency notes were kept in sealed pullanda or not saying that all the recovered articles were kept in sealed pullanda. He has been referring to the statement of PW-10 dated 16.8.2012 (Page 2) stating that most of the recovered articles were kept in sealed pullanda and some were kept unsealed. It is submitted by the defence counsel that when PW-5 was examined currency notes P1 to P6 were produced in unsealed condition and this does not rule out the possibility of plantation.

CBI Vs. Raj Kumar AC No. 25/11/09

43. It is submitted by the defence counsel that the pre-trap proceedings are highly doubtful. He has been relying upon the judgment V. Venkat Subarao V. State (S.No.3) (Supra). It is submitted by the defence counsel that it was observed in this judgment that pre-trap proceedings generally takes time of two to two and a half hours and in that case it was finished in one hour. The Apex Court held that such proceedings cannot be completed in one hour.

44. It is submitted by the defence counsel that in the present case handing over memo Ex.PW5/C was started at 3.00 pm and was concluded on 4.15 p.m. He has been referring to the statement of PW-6 dated 21.12.2011 (page 9). As per this witness the pre-trap proceedings continued for about one or one and a half hour. The statement of PW-7 on this point as made on dated 3.5.2012 (page 3) is that it took only 30 minutes in pre-trap proceedings. The statement of PW-10 TLO dated 16.8.2011 is that it took about one hour in completing pre-trap proceedings. As per PW-11 Prem Nath the time consumed in pre-trap proceedings is 1 36 CBI Vs. Raj Kumar AC No. 25/11/09 to 1.15 hour. It is submitted that all four witnesses are giving contradictory times.

45. It is submitted that Ex.PW5/C handing over memo is ante dated. It is submitted that as per CBI case this document was prepared on 28.11.2008. According to the counsel the date beneath the signature of Prem Nath PW-11 on the last page at point DB is 29.11.2008. The fabrication of this document on 29.11.2008 cannot be ruled out.

46. It is submitted by the defence counsel that PW-10 has destroyed the legality of handing over memo Ex. PW5/C. He has been referring to his statement dated 16.8.2012 (Page 8) where he has admitted that seal in pre-trap proceedings were given to independent witness after use and no other seal was taken by him. He was confronted with handing over memo Ex.PW5/C where it finds mentioned that CBI seal was also taken alongwith other documents. It is submitted by the defence counsel that plantation of case property cannot be ruled out.

CBI Vs. Raj Kumar AC No. 25/11/09

47. It is submitted by the defence counsel that recording in Ex.P8 and P15 Q1, Q2 are inadmissible being secondary evidence. It is submitted that it has not been informed to the court during trial about original recording of Q1 and Q2. He has been referring to the statement of PW-10 dated 16.8.2012 (Page 9) that original recording of DVR was preserved in the CBI office but he failed to show who was the custodian but later said that original recording was in the custody of Inspector Prem Nath. It is submitted that according to the statement of PW-11 Prem Nath dated 17.10.2012 (Page 7) the original record of Q1, Q2 were not received by him from the previous IO. Voln. they have been deposited in the malkhana. It has been submitted that CBI has not produced anything on record in support that original records of Q1 and Q2 were preserved in the Malkhana. The original recording as per the own case of the CBI were preserved in CBI and as per the defence counsel Q1 and Q2 are only the copies thereof.

48. It is submitted that call details of mobile phone of accused Ex.PW4/C is not proved on record for want of Certificate under Section 65-B Evidence Act. He has been relying upon Raj 38 CBI Vs. Raj Kumar AC No. 25/11/09 Kumar V. State 2011 JCC 2198 DB Delhi and Parminder Singh V. State 2011 Part 3 JCC 1814 DB Delhi. The CBI has not produced cell ID charts to find out the location of both the mobile numbers used in the conversation between accused and complainant. The evidence produced qua call details is not of any benefit to the CBI.

49. It is submitted that PW-2 Roshan Lal is a false witness of post trap proceedings and arrest papers of accused. He was the then SHO of PS Kalyan Puri. He is a witness of recovery memo Ex.PW2/A and arrest memo Ex.PW2/B. It is submitted by the defence counsel that DD No.32B Ex.DW3/B shows the departure of SHO at 1.00 pm for patrolling duty. He has also been referring to DD No.38A of 28.11.2008 which is the arrival entry of Inspector Roshan Lal in the P.S. showing that he returned at 11.40 p.m. It is submitted that during this intervening period there is no arrival or departure entry of Inspector Roshal Lal on 28.11.2008. The presumption is that he was away from P.S. during this time. DW-5 and DW-6 are the duty officer on 28.11.2008 from 8.00 pm to next day 8.00 am on 28.11.2008 and 29.11.2008. It is submitted 39 CBI Vs. Raj Kumar AC No. 25/11/09 that DW-5 has proved that SHO was not in the P.S. after making his departure at 1.00 pm till the time he remained on duty on that day. It is submitted by defence counsel that DD No.32B and 38A are in the handwriting of SHO himself. It is submitted that DW-6 ASI Jagmal has testified that he joined on 28.11.2008 at 8.00 pm vide DD No.30A while relieving ASI Sheo Pal DW-5. It has been deposed by him that after his joining upto 11.40 pm SHO Roshan Lal was not in the P.S. It is submitted by the defence counsel that there was no reason with DW-5 and DW-6 to depose against the State while still in job. It is submitted by the defence counsel that DW-5 and 6 have categorically stated about the non presence of Inspector Roshan Lal in P.S. Kalyan Puri at the time of relieving of DW-5 or joining of duty by DW-6 or thereafter. It is submitted by the defence counsel that SHO Roshan Lal tried to explain that 'CBI Se' means (at page 5 of cross dated 24.5.2011) 'Case of CBI' which according to the defence counsel is a false statement as DD No. 38A is clearly showing that he arrived in the P.S. from CBI. His participation in proceedings is doubtful. The obtaining of his signature at CBI office to recovery memo and other documents cannot be ruled out. It is submitted by the defence counsel that 40 CBI Vs. Raj Kumar AC No. 25/11/09 DW-5 in reply to the cross examination made by the Ld. PP for the CBI has made a statement that SHO Roshan Lal did not come to the P.S. till 8.00 pm till he was on duty. PW-6 has also made a statement during cross by the CBI that SHO was not seen by him in SHO room at the time of joining his duty. It is submitted that Inspector Roshan Lal himself is an accused in a D.A case registered with Anti Corruption Branch Delhi Govt and this PW-2 got his IO Inspector Dalip Kaushik trapped through CBI in which PW-12, PW-13, PW-11 and Inspector Rajesh Chehal are the team members of the raiding party.

50. It is submitted that there is no compliance of Section 157 Cr.P.C that copy of the FIR has not been sent within 24 hours to the Court concerned. He has been relying upon Arjun Marik V. State of Bihar 1994 SCC (Crim.) 1551, Ajay @ Chottu V. State 2012 Part 4 LRC 273 Delhi DB, Shiv Lal V. State 2011 Part 4 RCR (Crim.) 286 HC and Jagdish Murav V. State 2006 Part 3 JCC 1569 (S.C.) It is submitted by the defence counsel that the envelope Ex.PW12/DA in which copy of the RC was received in the Court is showing the date of receiving as 1.12.2008. It is submitted 41 CBI Vs. Raj Kumar AC No. 25/11/09 by the defence counsel that copy of the FIR in this case was sent after four days and that too without the copy of the complaint of Bablu Tiwari. The statement of PW-11 Prem Nath dated 17.10.2012 (page 4) is that it is mandatory to send a copy of RC to the Court of Spl. Judge within 24 hours and he has not collected any evidence that RC of this case was sent in the Court within 24 hours. The statement of PW-10 dated 16.8.2012 (page 5) is that copy of the FIR should be sent to the Court within 24 hours and in this case also the copy was sent within time to the Court. It is submitted that this later part of the statement of PW-10 is false because of envelope Ex.PW12/DC. He has been referring to statement of PW-12 dated 25.9.2012 (Page 4) which shows that he did not make any inquiry whether copy of RC was sent to the Court within time or not.

51. It is submitted by the defence counsel that direction given by the Hon'ble Supreme Court in the matter of D.K. Basu vs. State AIR 1997 SC 610 about intimation of arrest is not complied with. It is submitted by the defence counsel that though because of the violation of this direction the accused cannot be acquitted of the 42 CBI Vs. Raj Kumar AC No. 25/11/09 charge if proved otherwise but this is enough to raise a question mark about the post dated proceedings of the case. It is submitted that in direction no. 4 in D.K. Basu Case (Supra) it is mentioned that the family members of accused should be informed about his arrest. There is nothing on record that any member of the family of accused was informed about his arrest. He is referring to the statement of PW10 dated 09.08.2012 (page 8) where the TLO is talking of arrest only and there is no whisper about the intimation to the family members of accused. He is also referring to the statement made by the witness in cross examination dated 16.08.2012 (page 1) where he has admitted that there is no document on record to show that family members of accused were informed. He is referring to the statement of PW11 made in his cross examination dated 17.10.2012 (page 4) where he says that only SHO was informed and admitted that SHO is not the family member of accused. It is submitted that PW12 Inspector R.C. Sharma is silent about any such information. It is submitted that the arrest cum personal search memo Ex.PW2/B is silent about giving any information to the family members of accused and SHO. It is submitted that mere signing by PW2 SHO of Ex.PW2/B as a 43 CBI Vs. Raj Kumar AC No. 25/11/09 witness does not dispense with the direction of the Hon'ble Supreme Court.

52. It is submitted that accused was not given offer by the raiding team to search them first before taking his search. He is relying upon statement of PW12 dated 25.09.2012 (page 5) wherein he has admitted that as per CBI manual the CBI and other members of team are required to offer search to accused before effecting his search and he also does not remember whether he found any document to this effect on record. He is referring to the statement of PW11 dated 17.10.2012 (page 8) that no offer of search was given to the accused before effecting recovery of tainted money at the spot. He is referring to the statement of PW10 dated 16.08.2012 (page 9) that no offer of search was given by him and Inspector Chehal before apprehending the accused or by A.K. Arun. It is submitted that PW7 is the recovery witness and his statement dated 03.05.2012 (page 6) is that he did not offer his search to the accused before taking his search. He is relying upon State of Punjab vs. Kushal Singh Pathania 2004 (4) RCR (Crl.) 498 (P&H). It is submitted that this was a case under P.C. Act 44 CBI Vs. Raj Kumar AC No. 25/11/09 where no offer of search was given to the accused before his search and it was held possibility of plantation cannot be ruled out. He is also relying upon Suresh Kumar vs. State of Haryana 2009 (4) RCR (Crl.) 608 (P&H) and Karnail Singh vs. State of Punjab 2009 (1) RCR (Crl.) 403, P&H. It is submitted that both these cases are under P.C. Act where this position has been confirmed.

53. It is submitted by the defence counsel that the prosecution has not been able to prove in this case that any phone call was made by the complainant to the accused on 28.11.2008 immediately before entering the PS Kalyan Puri except through call details Ex.PW4/C which is inadmissible for want to Section 65-B. He is referring to the statement of PW10 Sandeep Chaudhary TLO dated 16.08.2012 (page 3) where he has admitted that the fact of making phone call by the complainant to accused though it was nowhere a part of Q2 when he was confronted with transcription Ex.PW5/A to Q2. It is submitted by him that in the charge sheet at page 6 there is a specific allegation about this call detail but there is nothing on record to substantiate this contention.

CBI Vs. Raj Kumar AC No. 25/11/09

54. It is submitted by the defence counsel that PW3 Sh. V.B. Ramteke is not a competent witness to give evidence in the court u/s 293 Cr.P.C. because he is a Senior Scientific Officer Grade II and Grade II are not specified u/s 293 Cr.P.C. as a competent witness. It is submitted by him that u/s 293 Cr.P.C. there is a category of competent witness and Section 293 (4) says that any Chemical Examiner or Assistant Chemical Examiner to the Government.

55. It is submitted that CBI has not produced any document to show that PW3 was a chemical examiner or Assistant Chemical Examiner who were the only officers competent as per the requirement u/s 293 (4)(a) Cr.P.C. It is submitted by the defence counsel that even sub clause (g) would not be of any help to CBI because no such document or notification has been placed on record to the effect that Principal Scientific Officer Grade II is competent to give evidence in the court of law. It is submitted by the defence counsel that even otherwise he is not competent to give evidence because test was not conducted by him. He has been referring to his statement made in cross examination dated 46 CBI Vs. Raj Kumar AC No. 25/11/09 24.01.2011 (page 2) where he has admitted that the worksheet is not in his handwriting. It is submitted that the worksheet is not part and parcel of charge sheet. It is submitted that PW3 has deposed that the presence of phenolphthalein powder is detected through 'alkali test' but the report Ex.PW3/B is silent about 'alkali test' and as such report is unreasoned and biased. It is submitted that CFSL is under the administrative control of CBI.

56. It is submitted that PW6 S.K. Pant shadow witness is a tutored witness and his evidence should be discarded in toto. He is referring to his statement dated 21.12.2011 (page 7) where he has admitted that he has gone through his statement to refresh his memory before coming to the witness box. He has been relying upon Rishipal vs. State 1994 (1) CCC 509 Delhi where it was held that evidence of tutored witness should be discarded and who is a tutored witness - a person who has been read over his statement before coming to the witness box.

CBI Vs. Raj Kumar AC No. 25/11/09

57. Next it is submitted that the complaint Ex.PW1/A is silent about any pre-appointed date, time and place of bribe transaction. He is relying upon Roshan Lal vs. State 2011 (1) JCC 102 Delhi and Bhagwan Singh vs. State 2010 (4) LRC 73 Delhi. Both these judgments were under P.C. Act where it was held that if the complaint is lacking pre-appointed date, time and place of bribe transaction then the complaint should be discarded being vague. It is submitted by the defence counsel that in the present case PW10 Sandeep Chaudhary has admitted that the complaint is silent about any pre-appointed date, time and place of bribe transaction referring to his statement dated 09.08.2012 (page 14) where he is talking about verification of the complaint and admitting that no separate verification memo was prepared. It is submitted that similarly PW6 and 7 have also admitted that complaint was silent about any such pre-appointed date, time and place of bribe transaction.

58. It is submitted by the defence counsel that report of voice expert Ex.PW9/1 is unproved on record for want of compliance of Section 293 Cr.P.C. It is submitted that at the 48 CBI Vs. Raj Kumar AC No. 25/11/09 relevant time PW9 was posted as a Sr. Scientific Officer who is not a competent witness of the category prescribed in Section 293 (4)

(a) or (g) Cr.P.C as no notification has been placed on record. It is submitted by the defence counsel that this witness is even otherwise not educationally qualified to act as voice and sound expert. He is referring to his cross examination dated 16.08.2012 (page 1) that he does not possess any degree or diploma in the field of voice and sound identification. It is submitted by the Ld. Defence counsel that experience cannot dispense with basic education qualification.

59. It is submitted by the defence counsel that report Ex.PW9/1 is talking about a probable report. It is submitted by him this witness when cross examined qua probable report he has stated that as per his views probable report means 99% correctness. It is submitted by the defence counsel that there is no mention about accuracy of result in the report Ex.PW9/1. It is submitted by the defence counsel that the report otherwise is not admissible for the reason that chart of sound track /voice track prepared for the purpose of examining continuity of the original 49 CBI Vs. Raj Kumar AC No. 25/11/09 voices by the witness is not attached by him as admitted by him. It is submitted by the defence counsel that PW9 has admitted that changes may occur in live recording of voice and recording through telephone. It is submitted by him that Q1 is telephonic recorded conversation whereas Q2 and S1 are the live recordings.

60. It is submitted by the defence counsel that report Ex.PW9/1 is otherwise false, baseless and fabricated. It is submitted by him that in para 5 of the report at page 2 alongwith the other articles the transcription comprising of three pages of Q1, 5 pages of Q2 and 4 pages of S1 were sent in the CFSL office alongwith forwarding letter. Forwarding letter according to him is Ex.PW10/A which is silent about sending of any such copies of transcription to CBI. It is submitted that PW9 has admitted this fact referring to his statement dated 16.08.2012 (page 1). It is submitted that there is no mention of sending of three transcriptions running into 3, 5 and 4 pages respectively with forwarding letter Ex.PW10/A. It is submitted by the defence counsel that acknowledgment on Ex.PW10/A speaks only about receipt of three sealed parcels in Physics Division without specifying that any rough 50 CBI Vs. Raj Kumar AC No. 25/11/09 transcriptions were received alongwith it. He is also referring to page 2 of Ex.PW10/A forwarding letter which speaks about the sending cartridges for test fire. There is no connection of cartridges with this case as it was a case of sending of the cassettes and PW10 has admitted that no cartridges were sent to CFSL. It is submitted by him that CBI is manipulating the documents because CFSL is under the control of CBI. It is submitted by him that PW10 in his statement dated 16.08.2012 (page 4) has stated that copies of transcriptions sent to CFSL alongwith the exhibits were copies of Ex.PW6/A and Ex.PW5/A (should have been Ex.PW5/E) which are the transcriptions of Q1 and Q2. It is submitted by the defence counsel that PW10 in his statement dated 16.08.2012 (page 4) has stated that the transcription of Q1 is running to four pages and Q2 in seven pages whereas in the transcriptions sent to the CFSL office it is mentioned that the same are running into 3 and 5 pages respectively. It is submitted by him that CBI has manipulated everything.

CBI Vs. Raj Kumar AC No. 25/11/09

61. It is submitted by the defence counsel that there is every possibility of fabrication of Q1 and Q2. It is submitted that specimen voice of accused was taken after giving him a written text of the wordings lifted from Q1 and Q2. It is submitted that possibility of 'cut and paste' cannot be ruled out in such a situation.

62. It is submitted that PW7 has admitted in his statement dated 21.04.2012 (page 14) that rough transcription was given to the accused on 29.11.2008 for the purpose of giving specimen voice. The rough transcription of wordings given to the accused for the purpose of recording of S1 is not placed on record. It is submitted that the recording has not been read over to PW6 but was played in the presence of PW7 and was got identified by him though he is not a witness to the conversation of Q2.

63. It is submitted by the defence counsel that Ex.PW9/1 is not otherwise helpful to the CBI because the wordings lifted by the expert from Q1 and Q2 are not pointing out to the guilt of accused regarding demand of Rs.5000/-, offer of Rs.3000/- and consent given by accused of Rs.3000/- and again demand of Rs.3000/- at 52 CBI Vs. Raj Kumar AC No. 25/11/09 the spot. At the time of playing of cassette Ex.P15 of Q2 during examination of PW7 the wordings 'MUJHE DE DO, BEES HAZAR RUPAIYA AND TU KITNA LAYA' were not audible or made to hear to PW7. The defence counsel has been relying upon Vishal Chand vs. State 2011 (3) RCR (Crl.) 304 Delhi. It was a case under P.C. Act where the specimen recording of voice was recorded after giving a text of the wordings lifted from questioned voice and it was held that possibility of fabricating of audio record of conversation cannot be ruled out.

64. It is submitted by the defence counsel that PW-7 is a stock witness of CBI and in judgment of Pyare Lal vs. State 1 (2008) DMC 806 Delhi it was held that evidence of stock witness should be discarded by the court. He has been referring to cross examination of PW7 dated 03.05.2012 (page 1) where he has admitted that he has participated for 2/3 other cases besides the present case. It is submitted that in Pyare Lal case(Supra) it was held that panch witness was associated in other 3/4 CBI cases as witness and therefore he was not considered to be an independent witness. Judgment of G.B. Nanjun Diah vs. State AIR 1987 53 CBI Vs. Raj Kumar AC No. 25/11/09 Supplementary SCC 266 was followed by the Hon'ble High Court. He has also been relying upon Subhash Chand Chauhan vs. CBI 2005 (2) RCR (Crl.) 152 Delhi. It was a case of PC Act. It is submitted that it was held in this case that 'panch witness' has also appeared in another trap case and therefore he was treated as a stock witness and his evidence was discarded.

65. It is submitted that site plan Ex.PW6/B is defective. Complainant is not a witness of this site plan. The position of PW7 A.K. Arun is not shown in this site plan. Position of Inspector Chehal is not shown. His position was important as he received a signal. This site plan was fabricated subsequently and was not prepared at the spot.

66. It is submitted by the defence counsel that there was every possibility of plantation of pant and hand washes or transmission of powder in the hands of accused when he was apprehended by CBI team. It is submitted that if the version of PW5 is taken as true that notes were transferred to Ram Surat through accused then possibility of his coming in touch with powder cannot be ruled out.

CBI Vs. Raj Kumar AC No. 25/11/09 It is submitted by the defence counsel that PW6 has stated in his cross examination dated 21.12.2012 that the remaining phenolphthalein powder kept by the TLO in the same investigation kit where from it was taken out. It is submitted that during further cross examination on 03.02.2012 (page 5) he has admitted that same investigation kit was taken to the spot so the possibility of plantation of washes cannot be ruled out. It is submitted by the defence counsel that PW10 in his statement dated 09.08.2012 during examination in chief (page 5) has stated that right hand of the accused was caught hold by him and left hand by Inspector Chehal. It is submitted that they are not talking about wrist. It is submitted that possibility of transfer or plantation of powder cannot be ruled out. He has been relying upon P. Parasurami Reddy vs. State of AP 2011 (3) CCC 313 SC where it was held that any one of the team member or member of the raiding party must have touched the finger of the accused while catching hold his hand.

67. It is next submitted by the defence counsel that PW-7 A.K. Arun has destroyed the sanctity of handing over memo 55 CBI Vs. Raj Kumar AC No. 25/11/09 Ex.PW5/C and recovery memo Ex.PW2/A. It is submitted that as per this witness these memos were as it is when signed by him when shown to him on 3.5.2012 on the date of his cross examination by the defence counsel. It is submitted by the defence counsel that these two memos on the top of it bears the endorsement of Malkhana of CBI which according to him has been put later on and they could not have been there when these memos were signed by him and as such possibility of fabrication cannot be ruled out. It has been submitted that RC is anti time. It has been submitted by the defence counsel that as per PW-10 referring to page 14 of cross examination dated 9.8.2012 (2nd para) RC was registered prior to entrustment of complaint to him and complaint was received by him at 2.15 pm on 28.11.2008. It is submitted by the defence counsel that it is not possible because RC was registered at 2.30 p.m. It is submitted by the defence counsel that further this witness has stated that RC was registered after discussing with SP that too after telephonic verification of the complaint about the genuineness of the complaint. It is submitted by the defence counsel it is not possible because of the reason that the said telephonic conversation is a part and parcel of handing 56 CBI Vs. Raj Kumar AC No. 25/11/09 over memo Ex.PW5/C which had taken place after registration of RC.

68. It is submitted by the defence counsel that all witnesses have contradicted each other for the time of leaving CBI office, reaching PS Kalyan Puri, time of bribe transaction, time of receiving signal and time spent at P.S. Kalyan Puri. It is submitted by the defence counsel that these contradictions are sufficient to discard the case of the CBI. It is submitted by the defence counsel that tape recorded conversation are not admissible in evidence. He has been relying upon Ram Singh V. State 1985 SCC 611 SC (S.No.

25). It is submitted that in this judgment it has been held that there are five requirements for the admissibility of any tape recorded conversation.

1. Accuracy of the recording should be proved by the maker of the recording.

2. The possibility of tampering and erasing out of the recording should be ruled out.

3. The recording should be relevant to the facts of the case.

CBI Vs. Raj Kumar AC No. 25/11/09

4. The recorded cassettes should be kept carefully under seal and safe custody.

5. The voices should be audible and must not be distorted.

69. It has been submitted by the defence counsel that it has been held by the Hon'ble Supreme Court that these recordings can be used for corroboration only and not as a substantive evidence. Reliance has been placed on Mahavir Parsad V. Dr. Surinder Kaur AIR 1982 SC 1040 Para 20. It has been submitted by the defence counsel that in the present case there are five evidence i.e. cassette Q1 Ex.P8, cassette Q2 Ex.P15, transcription Ex.PW6/A of Q1, transcription Ex.PW6/B of Q2 and specimen voice Ex.P12.

70. It has been submitted by the defence counsel that maker of the recording is PW-5 complainant Bablu Tiwari. It is submitted that during cross examination by Ld. PP he has denied the recording in toto including his voice. It has been submitted by the defence counsel that the CBI has not collected the sample voice of the complainant to be used for corroboration in case the 58 CBI Vs. Raj Kumar AC No. 25/11/09 complainant does not support the prosecution case. It has been submitted that PW-5 denied the transcription Ex.PW6/A and also voice identification memo Ex.PW5/D during cross by Ld. PP he has denied recording of Ex.P15 i.e. Q2. It is submitted that the maker has not supported the case of the CBI or his voice in the cassette. It has been submitted by the defence counsel that the CBI in this case has tried to prove these recordings through PW-6 and 7. It has been submitted by the defence counsel that PW-6 while recording of Q2 has made improvements during his cross examination made on 3.2.2012 (page 3). He has also been referring to his cross examination dated 21.12.2001 page 8 where PW-6 in the last page has admitted that he does not have any voice identification qualification. It has been submitted by the defence counsel that PW-6 is otherwise not competent to identify the voice being not possessing any qualification. It has been submitted by the defence counsel that same is the position of PW-7 A.K. Arun. He is not a voice identification expert and his identification of voices are not of any help to the CBI. It has been submitted by the defence counsel that the identification of voices by PW-7 was also objected to by the defence counsel as he is not the witness to the 59 CBI Vs. Raj Kumar AC No. 25/11/09 spot conversation recorded in Q2. Ld. defence counsel has been referring to the statement of PW-10 Sandeep Choudhary dated 9.8.12 page 2 that the first telephonic conversation was heard in built up speaker and it was revealed that accused Raj Kumar was demanding bribe of Rs. 5000/- but as the complainant was having Rs. 3000/- only, he agreed to accept the same and told the complainant to come with the amount to P.S. at 5.00 p.m. on 28.11.2008. It has been submitted by the defence counsel that in the entire transcription dated 28.11.2008 Ex.PW6/A there is no mention about calling the complainant to PS at 5.00 p.m. on 28.11.2008. There is no mention of demand of Rs. 5000/- as bribe by the accused. It has been submitted by the defence counsel that cassette is not proved on record.

71. It has been submitted by the defence counsel that the tampering of the cassette cannot be ruled out. He has been referring to the statement of PW-10 dated 16.8.2012 Page 7 where he has stated that DVR was taken back from the complainant after challenging the accused. He further stated that the challenge must be there in the recording. It has been submitted by the defence 60 CBI Vs. Raj Kumar AC No. 25/11/09 counsel that when confronted by Q2 no such challenge was found available in the cassette Q2.

72. It has been submitted by the defence counsel that CBI has not produced the malkhana record or register from the MHC(M) to prove the custody of the recording. He has been referring to the statement of PW-10 dated 16.8.2012 page 5. It is submitted that PW-10 has admitted that there is a malkhana and he is maintaining register regarding the entry and exit of the documents submitted. He has been referring to the statement of PW-11 and 12 the subsequent IOS who have made the similar statement. It is submitted that Malkhana record is the only document to show that case property remained intact and was not tampered with. Therefore, the possibility of tampering and planting cannot be ruled out. It has been submitted by the defence counsel that the next requirement is that the recording should be audible and should not be distorted one. It is submitted that when this recording was heard by PW-7 during his examination in chief on 21.4.2012 he has stated many times that certain portions are not audible whereas the portions which were audible were not relevant for the purpose of 61 CBI Vs. Raj Kumar AC No. 25/11/09 the present case.

73. It has been submitted by the defence counsel that PW-1 Aashish is the master mind of the whole case. He is the defacto complainant and used Bablu Tiwari as a tool to take his revenge from accused. It is submitted that it is on record that PW-1 Ashish @ Dimple is a noted criminal of Gazipur and there are so many cases against him. It is submitted that he was having a grudge against accused Raj kumar as accused was the Divisional Head Constable of area of Ashish. It is submitted that it has already come on record that accused Raj Kumar was attesting witness to the arrest papers Ex.PW4/DB and DC of Ashish @ Dimple in case FIR No. 688/06 P.S. Kalyan Puri against him. It has been submitted by the defence counsel that accused Raj Kumar was also conducting inquiries of two complaints of Rajesh Sharma Mark DB and another of wife of Ashish Mark DC. It is submitted that during these inquiries Ashish has threatened accused Raj Kumar by showing his connection with CBI officers. He has been referring to the document Ex.DE where while submitting report on the complaint of Rajesh Sharma he has mentioned about such threats.

CBI Vs. Raj Kumar AC No. 25/11/09 It is submitted that Ex.PW2/DE is countersigned by SHO Roshan Lal PW-2 and similar report was filed by accused Raj Kumar vide Ex.PW2/DD i.e. the report on the complaint of wife of Ashish @ Dimple. It has been submitted by the defence counsel that PW-1 has admitted that earlier also on 27.4.2007 PW-1 took one raid alongwith Inspector Chehal and Inspector Sandeep Choudhary (team members of this raid also) for trapping accused Raj Kumar. PW-10 has admitted about such raid. It is submitted that DW-4 Veer Jyoti intentionally did not produce the record of this raid dated 27.4.2007 in the Court. It is submitted that CBI is concealing this fact and presumption is that they are deliberately doing so as presumption goes against them. It is submitted that Bablu Tiwari has stated that Ashish told him about knowing two CBI officials and that he took currency notes from Ashish and after the raid CBI officers returned him Rs. 3000/- in CBI office which were taken from him by Dimple in the parking. It is submitted that collusion between PW-1, PW-10 and Inspector Chehal cannot be ruled out to falsely implicate the accused in this case at the instance of PW-1 for satisfaction of his grudge.

CBI Vs. Raj Kumar AC No. 25/11/09

74. It has been submitted by the defence counsel that DWS should be given equal treatment. He has been relying upon Anil Sharma V. State 2004 (3) RCR (Criminal) 774 SC, State V. Ram Singh Etc. 2002 Part 1 JCC 385 S.C.

75. It has been submitted by the defence counsel that accused has examined six witnesses in defence. DW-1 is Sant Ram Pardhan who has proved compromise Ex.PW5/DA. It is submitted that he is the neutral witness in this case and is neither related to the complainant or to the accused. DW-2 is Ram Surat who is the injured of dispute with Bablu Tiwari. It has been submitted that DW-2 has corroborated PW-5 complainant and DW-1 regarding compromise Ex.PW5/DA and this document was inadvertently admitted by CBI when a suggestion was given to DW-2 during his cross that he put his signatures on Ex.PW5/DA under the pressure of DW1. It has been submitted that during cross examination of DW-2 the CBI has admitted his presence even at the time of bribe transaction when he was given a suggestion that Rs. 3000/- was not paid to him as compensation and was paid to accused Raj Kumar as bribe. DW-3 is a formal 64 CBI Vs. Raj Kumar AC No. 25/11/09 witness. He has produced the DD entry of P.S. Kalyan Puri. DW-4 is Veer Jyoti who has not produced the relevant record and presumption may be taken under Section 114 (g) Evidence Act against the CBI. DW-5 and 6 are the two duty officers of P.S. Kalyan Puri on 28.11.2008 and 29.11.2008. These two witnesses have proved on record that after lifting accused Raj Kumar CBI team left the spot and no proceedings were conducted by them at P.S. Kalyan Puri and that SHO Roshan Lal was also not present in the police station. Nothing could be extracted by the prosecution from cross examination of these two witnesses. He has been relying upon Javed Masood V. State 2010 RCR 285 SCC in which it has been held that in case of faulty investigation benefit should be given to the accused. In this case the IO has not conducted the investigation fairly and has left out various material evidence in this case for the reasons best known to him. Reliance has also been placed upon Kailash Gaur V. State. 2012 Part 4 LRC 81 S.C. (full bench) page 92.

76. It is next submitted if two views are possible benefit should go to the accused. The reliance has been placed on State 65 CBI Vs. Raj Kumar AC No. 25/11/09 V. K. Narsimachari AIR 2006 SC 628 (Para 25) and State V. Rashid Mulami 2006 Part 1 RCR (Criminal) 421 S.C.

77. It is submitted that CBI has failed to prove its case beyond reasonable doubt and accused may be acquitted.

78. I have heard the Ld. PP and also the Ld. defence counsel at length and have also gone through the entire record. On the one hand the prosecution has been relying upon the testimony of his 13 witnesses including complainant Bablu Tiwari's statement to the extent favouring the prosecution and also upon the CFSL reports of handwash and pant pocket wash of the accused and the recorded conversation in audio cassette Q1, Q2 alongwith its transcriptions Ex.PW6/A (Ex.PW5/C) and Ex.PW5/E. The defence at the same time has not only sought to dispel the case of the CBI by adducing its own evidence and also relying upon 50 judgments in support of different contentions sought to be reproduced above.

79. The contention that complaint Ex.PW1/A has not been proved in this case according to law is not tenable. No doubt that 66 CBI Vs. Raj Kumar AC No. 25/11/09 the complainant PW-5 Bablu Tiwari has not proved this complaint but PW-1 Aashish who has scribed the complaint has made a statement favouring to the prosecution of his writing the complaint. The statement of PW-1 also finds support from the statement of the panch witnesses and TLO Sandeep Choudhary that Ex.PW1/A was the only complaint which was seen by the panch witnesses and RC was registered.

80. The contention that PW-1 was having a personal grudge against the accused and has used the complainant as a dummy complainant against the accused for satisfaction of his own personal grudge is only to be rejected keeping in view the overall evidence coming on record as such. It may be seen from the record that PW-5 Bablu Tiwari has admitted that he had a quarrel with DW-2 Ram Surat in the area of P.S. Kalyan Puri on 26.11.2008. He has also made a statement that he alongwith PW-1 Aashish had come to CBI office on 28.11.2008. He has also in cross examination by the Ld. PP made a statement that he did not want to give bribe money to settle the case with Ram Surat and he had gone to the office of CBI. He has also made a statement that 67 CBI Vs. Raj Kumar AC No. 25/11/09 he has come to P.S. Kalyan Puri with CBI team and according to him the money was paid by him to the accused Raj Kumar though his statement is that it was to settle the dispute with Ram Surat. The later portion of the statement is not correct and is only to be discarded being untrue.

81. In view of this position simply because of retraction by the complainant that complaint does not bear his signature does not mean that this complaint has not been proved as per law or that this complaint nowhere connect the complainant with it. The supportive evidence on record proves beyond doubt that this complaint was made on behalf of the complainant only.

82. The prosecution in the present case with the help of the evidence of PW-2 Roshan Lal and also with the help of the evidence of PW-6 shadow witness and PW-7 witness of recovery and evidence of PW-10 TLO and PW-11 Inspector Prem Nath part IO has proved the recovery of Rs. 3000/- from the pant pocket of the accused. The accused has not offered any explanation as to how this money has reached to his pant pocket. His only defence 68 CBI Vs. Raj Kumar AC No. 25/11/09 is that this money has been snatched by CBI officials from Ram Surat in P.S. Kalyan Puri. The statement of PW-2 and also the statement of both independent witnesses, PW-10 TLO have disapproved the presence of DW-2 Ram Surat in P.S. Kalyan Puri on 28.11.2008 at the relevant time. Even otherwise this is not even the defence of the accused of his own that this bribe amount of Rs. 3000/- was put up by CBI officials in his pant pocket. He has not offered any explanation how come the money has been recovered from his pant pocket. The currency notes recovered from the pant pocket were the same which are tallying with the numbers given in handing over memo Ex.PW5/C. The report of CFSL proved by PW-3 V.V. Ramtek confirms to the presence of phenolphthalein powder in the right side pant pocket. The challenge made to the report on the ground that PW-3 is not a qualified witness as per the requirement of of Section 293 Cr.P.C is only to be rejected being not correct.

83. The recovery of the bribe amount of Rs. 3000/- from the pant pocket of the accused attracts the obligation under Section 20 PC Act. The accused could have explained the reason of this 69 CBI Vs. Raj Kumar AC No. 25/11/09 recovery but in the present case his only stand is that no recovery was affected from him as no money was offered to him. The statement of PW-2 Inspector Roshan Lal coupled with the other evidence of both the independent witnesses and TLO sufficiently proves such recovery of bribe amount from his pant pocket. There is no reason with PW-2 Inspector Roshan Lal to make any incorrect statement against his own subordinate posted in the same P.S. of which he was the SHO. His affirmative statement about his presence at the P.S. and also about recovery of the bribe amount from the pant pocket rightfully dispel the defence evidence of duty officer DW-5 and DW-6. There is no reason for him to falsely implicate the accused. The incident in question will not only disrepute the accused but also would bring the disrespect to the police station of which he was in charge of at the relevant time. In Krishna Ram V. State of Rajasthan (2009) (11) SCC 708 it was held that money was recovered from the possession of the accused the burden of rebutting the presumption shifts upon the accused. The accused is liable to rebut through cross examination or by adducing reliable and convincing evidence such presumption. In the present case the accused has not rebutted such presumption of 70 CBI Vs. Raj Kumar AC No. 25/11/09 keeping amount with him. In State of Tamilnadu V. Parthiban AIR 2007 SC 51 it was held that every acceptance of illegal gratification whether preceded by demand or not would be covered by penal provision of Section 7 of the Act. But if the acceptance of illegal gratification is pursuant to a demand by a public servant it would fall under Section 13 (1) (d) of the PC Act. In the present case as may be noted from the conversation recorded in cassette Q1 and Q2 and also through its transcriptions Ex.PW6/A (Ex.PW5/C) and Ex.PW5/E they no where speak of any demand by the accused from the complainant. The complaint Ex.PW1/A of its own cannot be taken as sufficient evidence to bring home this demand in absence of other corroborative evidence when the complainant is hostile and shadow witness S.K. Pant claims to have not heard the spot conversation of the demand by the accused from the complainant.

84. The infirmities sought to be raised by the defence regarding time and other points in the prosecution case are not so material and case of the prosecution cannot be rejected for such deficiencies. In State of U.P. V. M.K. Antony AIR 1985 SC 48 it 71 CBI Vs. Raj Kumar AC No. 25/11/09 was held that despite discrepancies in the statement their testimony fully inculpate the accused and conviction can be based on such evidence made in the Court by material evidence. It was held that while appreciating the evidence of the witnesses the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawback and infirmities pointed out in the evidence as a whole and to evaluate them whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence has shaken to render it unworthy of relief. It was held that minor discrepancies of trivial nature not touching the core of the case would ordinarily permit rejection of the evidence as a whole.

85. Applying the above legal proposition to the facts of present case it may be noted that no doubt the complainant in the present case has not been completely supporting to the prosecution case but that by itself would not be sufficient to throw away the case of prosecution. The statement of the complainant to the 72 CBI Vs. Raj Kumar AC No. 25/11/09 extent supporting of the CBI case and keeping in view the unclinching the testimony of other witnesses who are part of the trap team and also SHO PW2 Roshan Lal coupled with the testimony of PW10 Inspector Sandeep Chaudhary the prosecution has been able to bring on record the cogent and reliable evidence against the accused facing trial in this case. Despite of the deficiencies, drawbacks and infirmities pointed out by the defence this court is of the view that the testimony of the witnesses is truthful and reliable. They all are the witnesses of the spot. Their deposition against the accused to the extent of his accepting the bribe amount of Rs.3000/- from the complainant and recovery of the same cannot be doubted. They have no motive to falsely implicate the accused. Nothing has been brought on record that independent witnesses were not the members of trap team and their statement in any manner suffering from any deficiencies and is not worth of relying upon.

86. The contention of the defence that there was no occasion with the accused to accept the amount in the light of compromise Ex.PW5/DA between complainant and Ram Surat a 73 CBI Vs. Raj Kumar AC No. 25/11/09 day before on 27.11.2008 is devoid of any force. As rightly pointed out by Ld. PP the complainant has admitted of his coming to CBI office alongwith PW-1 Aashish. If there was any compromise as claimed then there would not have been any occasion for him to come to CBI office and than to proceed P.S. Kalyan Puri alongwith CBI team.

87. The contention that prosecution has failed to examine witnesses Manish Srivastave, Mr. Chehal, Kamal Arya and Addl. SHO Mahender Singh whose presence has been shown in records is devoid of any force. The examination of a witness in support of the case is own choice of the party. The CBI cannot be compelled to examine all the witnesses if they are of the view that evidence led by them is convincing and sufficient and bring home the charge beyond reasonable doubt. In Bunty @ Guddu V. State 2004 (1) SCC 414 it was observed by Hon'ble Supreme Court that it is the wish of the PP to examine the witnesses supporting the prosecution case.

CBI Vs. Raj Kumar AC No. 25/11/09

88. In a trap case Primarily case of the CBI is based on the testimony of the complainant, shadow witness, witness of recovery, TLO, Sanctioning Authority and scientific evidence. The CBI in the present case has examined all of them. As such the contention that non examination of the witnesses would lead to any adverse presumption against the prosecution case is only to be rejected.

89. The contention that sanction order Ex.PW8/1 is defective and is invalid is only to be rejected. PW-8 himself was the competent authority to accord sanction. He has appeared in the witness box and has deposed in favour of the passing of the sanction order after perusal of the record made available to him. The charge sheet has been filed later on and as such there was no occasion for PW-8 to peruse the charge sheet. The sanction order cannot be held as illegal for the want of personal hearing to the accused as alleged. In support reliance may also be taken from Ram Chander V. State 2009 (4) RCR (Crim.) 880 DHC. There is nothing to show any infirmity in the sanction order. Once the sanctioning authority himself has appeared in the witness box and there is nothing to vitiate the sanction order, the sanction order has 75 CBI Vs. Raj Kumar AC No. 25/11/09 to be taken as properly proved for the purpose of present case.

90. The contention that handing over memo Ex.PW5/C is ante dated is only to be rejected considering to the testimony of PW-6, PW-7, PW-10 and PW-11. The case of the CBI cannot be thrown away if there are other convincing evidence on record on account of delay in sending the copy of FIR beyond 24 hours of registration or non compliance of the direction given in D.K. Basu V. State AIR 1997 SC 610 about intimation of arrest to the family members and others. Similarly the prosecution case also cannot be thrown away for the reason that accused was not given search by the raiding team members before taking his search.

91. The contention that PW-6 S.K. Pant shadow witness is a tutored witness for the reason that he has gone through the statement to refresh his memory before coming to the witness box is only to be rejected. The witness is coming to the witness box after 3 years of the incident and it is very difficult for him to remember all the details by heart. It was for the defence to bring in his cross examination that whatever has been deposed by him is 76 CBI Vs. Raj Kumar AC No. 25/11/09 not a correct statement and to this effect there is no such suggestion. The testimony of PW-6 S.K. Pant is otherwise reliable and convincing and fully supporting to the prosecution case. He has denied of his being a member of raiding party any time before this incident. There is no reason to doubt the genuineness of the statement given by PW-6 in the witness box.

92. The challenge made to the report of voice expert Dr. Rajinder Singh Director CFSL for the reason that in the forwarding letter there is no mention of submitting copy of transcriptions or also on the ground that there is variation in the number of pages of the transcription sent to the CFSL and the transcription proved on record is devoid of any merit. There is no reason for PW-9 to make a false statement. His report Ex.PW9/1 proves with sample voice of accused matched to the voice appearing in the audio cassette Q1 and Q2. There may be every possibility of variation in pages of transcription submitted to CFSL office alongwith the audio cassettes and transcriptions prepared later on and submitted in the Court. The report of PW-9 also cannot be rejected for the reason that specimen of the accused voice was taken after giving him the 77 CBI Vs. Raj Kumar AC No. 25/11/09 written text of the wordings of Q1 and Q2.

93. The submission that PW-7 is a stock witness as he has participated in more than one raid is only to be rejected. The cases relied upon are based on their own facts even otherwise the statement of PW-7 is nowhere different from the statement of PW-6 S.K. Pant recorded earlier in point of time and who was only supporting the prosecution first time in the raid. Nothing has been brought to show that statement of PW-7 suffers from any infirmity because of his participation with CBI in more than one case or that his was not a truthful statement.

94. Considering to the overall evidence coming on record it is held that the accused in the present case has accepted the amount of Rs. 3000/- voluntarily as gratification. Motive was to hush up the name of the complainant Bablu Tiwari in the incident of quarrel with Ram Surat on 26.11.2008 which was assigned to him. The hostility between PW-1 and accused as pointed out on record at the best put the Court to read his evidence with more caution and care. However, there is ample evidence on record in this case to 78 CBI Vs. Raj Kumar AC No. 25/11/09 show that accused has received this bribe amount of Rs. 3000/- which was recovered from his possession when he was caught red handed at the spot.

95. As a result it is to be held that the prosecution has been able to bring on record sufficient and convincing evidence which proves the charge against him under Section 7 PC Act. However, the charge against him under Section 13 (2) read with Section 13 (1) (d) PC Act the prosecution is required to prove on record that the accused by corrupt or illegal means has obtained this bribe amount from the complainant or this amount has been received by him by abusing his position as a police office or he has obtained this amount without any public interest. The evidence of the prosecution is completely silent to prove this charge against the accused. Reliance may also be placed on Subhash Parbat Sonvane V. State of Gujrat AIR 2003 SC 2169. In this case the accused was found in possession of money of which he failed to give any satisfactory explanation. The Court upheld the conviction under Section 7 but acquitted the accused under Section 13 (2) read with Section 13 (1) (d) PC Act for the want of any satisfactory 79 CBI Vs. Raj Kumar AC No. 25/11/09 evidence to prove the charge under Section 13 (2) read with Section 13 (1) (d) PC Act. The Court in this case held that for convicting the person under Section 13 (1) (d) PC Act there must be evidence on record that the accused obtained for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position has a public servant or he obtained without any reason any valuable thing or pecuniary advantage without any public interest. This case squarely covers the position as involved in the present case.

96. Accordingly accused is held guilty for the charge under Section 7 of the PC Act but is acquitted of the charge under Section 13 (2) read with Section 13 (1) (d) PC Act. ORDER IS MADE ACCORDINGLY. File be consigned to record room.

Dictated and announced in the open Court on 20.4.2013.

( RAJIV MEHRA ) SPECIAL JUDGE CBI (PC ACT) EAST DISTRICT KKD COURTS: DELHI 80 CBI Vs. Raj Kumar AC No. 25/11/09 IN THE COUR T OF RAJIV MEHRA SPECIAL JUDGE CBI (PC ACT) KARKARDOOMA COURTS : EAST DISTRICT DELHI RC No. 50 (A)/08 AC No. 25/11/09 CBI VERSUS Raj Kumar S/o Late Sh. Bahoran Singh R/o 244/89, Flat No.5, School Block, Mandawali, Delhi - 92.

ORDER ON POINT OF SENTENCE :

It is submitted by the defence counsel that convict is aged about 44 years having housewife two young sons of the age of 19 years and 18 years and are college going and a young daughter of 17 years of age. It is submitted by him that the convict has also financial and other responsibility for his old aged widow mother. He is the sole bread earner 81 CBI Vs. Raj Kumar AC No. 25/11/09 and as such the defence counsel prays for a lenient view.

2. On the other hand it is submitted by the Ld. PP that the corruption does not deserve any leniency or sympathy. He has been relying upon Narendra Champaklal Trivedi vs. State of Gujarat 2012 VI AD (SC) 71. According to him the unchecked corruption is spreading in society like a cancerous disease and retarding the whole society.

3. He has been relying upon State of M.P. vs. Shambhu Dayal Nagar AIR 2007 SC 163. It is submitted that it is held in para 13 of the judgment that corruption has become a gigantic problem.

4. The Ld. PP in the light of these judicial pronouncements prays for maximum punishment provided in the statute.

5. The convict in this case was a well placed police official. The Govt. of India is taking care of his salary every month from funds of public exchequer. So apparently there is no reason to get into the corrupt deals.

The motto of any public service is to serve the people of this country. Instead of that the officer of public service now a days seems to be in a hurry to serve their own family and pocket. As this court recalls Gandhiji had rightly said "earth provides enough to satisfy to every man's need 82 CBI Vs. Raj Kumar AC No. 25/11/09 but not every man's greed".

6. The plea of mercy on the ground that the convict is only bread earner and has a housewife and young school and college going children with other family responsibilities is misplaced. The convict should have thought about the same before getting into the corrupt practice. The disease of corruption is unchecked and unguided everywhere.

7. Taking into account, the convict is imposed the R.I. Of one year with fine of Rs.25,000/- for the offence u/s 7 of P.C. Act of which he has been convicted. In default he would undergo SI for six months. He would also be given benefit of Section 428 Cr.P.C.

Copy of judgment and copy of sentence be given to convict free of charge.

Order is made accordingly.

File be consigned to record room.

Dictated and announced in the open Court on 25.4.2013.

( RAJIV MEHRA ) SPECIAL JUDGE CBI (PC ACT) 83 CBI Vs. Raj Kumar AC No. 25/11/09 EAST DISTRICT KKD COURTS: DELHI

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Cbi vs . Raj Kumar on 25 April, 2013