Delhi District Court
Cbi vs Dilip Kumar Thakur on 30 October, 2014
CBI vs Dilip Kumar Thakur
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 31/12 (Old CC No. 25/12)
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI
U/s 13(2) read with Section 13 (1)(d) of PC Act
Unique ID No.: 02403R1072232008
Central Bureau of Investigation
vs
Dilip Kumar Thakur S/o Sh Dev Swarup Thakur
R/o Flat No. 464, Pocket EII, Vasant Kunj, New Delhi110070
Date of FIR : 26/03/2008
Date of filing of Chargesheet : 24/12/2008
Case received by transfer on : 06/07/2012
Arguments concluded on : 30/09/2014
Date of Judgment : 30/10/2014
Appearances
For prosecution : Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI.
Sh Naveen Giri, Ld. PP for CBI.
For accused : Sh Harsh K. Sharma and Sh Mohit Aggarwal, Ld.
Counsels for accused.
JUDGMENT
FACTUAL MATRIX OF THE PROSECUTION CASE IS AS FOLLOWS:
RCAC12008A0002 was registered on 26/03/2008 in ACUI Branch of CBI, New Delhi against accused Dilip Kumar Thakur, RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 1/78 CBI vs Dilip Kumar Thakur Inspector, CBI, ACB, New Delhi on the basis of written complaint dated 26/03/2008 of Smt Kusum Sehgal (PW14). It was alleged in the FIR that accused was investigating a case (RC34(A)/2007/ACB/DLI) against Sh Atul Vashisht (rakhi brother of PW14) and others. On 20/03/2008, in the case being investigated by accused, bail petition of Sh Atul Vashisht was listed for hearing in the Hon'ble High Court of Delhi. Before hearing of the bail, accused made an alleged demand of bribe of Rs 3.50 lakhs from PW14 for facilitating bail out of Sh Atul Vashisht. It was further alleged that on 21/03/2008 at about 23:00 hours, accused threatened PW14 over mobile that if the bribe amount is not paid to him (accused), he (accused) will send Sh Atul Vashisht to jail as nine other cases were pending against him (Sh Atul Vashisht). Accused again threatened PW14 on 23/03/2008 at 12:15 hours that he will not only arrest Sh Atul Vashisht but also arrest her (PW14) and implicate in the case and will also explore possibility of a disproportionate assets case against Smt Rajni (PW4) wife of Sh Atul Vashisht. Due to persistent demand of accused, since her family was very disturbed, PW14 paid him Rs 50,000/ on 23/03/2008. Since PW14 was not willing to pay the bribe amount to accused, therefore, PW14 filed the complaint against the accused.
2. Investigation revealed that there was no proposal pending in the branch related to case against Smt Rajni Vashisht for possessing disproportionate assets. Nine other criminal cases in the ACB CBI New RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 2/78 CBI vs Dilip Kumar Thakur Delhi were found to be registered on the complaints of accused (Dilip Kumar Thakur) and were not being investigated by accused (Dilip Kumar Thakur).
3. Allegedly on 26/03/2008 in the presence of two independent witnesses, when accused was contacted over his mobile number 9953464891 by PW14 from her mobile number 9911971000, then during conversation, accused agreed to accept Rs 2 lakhs from PW14 in the evening of 27/03/2008. Said amount was handed over to PW14 by Sh Atul Vashisht to be further given to accused in view of his demand for not registering a disproportionate assets case against PW4. During conversation accused assured PW14 that no case of disproportionate assets will be registered against PW4 and there is no need for them to worry. Accused also agreed to meet Sh Atul Vashisht or his wife PW4 along with PW14 on 27/03/2008. Allegedly, after ascertaining genuineness of alleged demand of bribe, this case was registered against accused on 26/03/2008 and entrusted to Inspector T.P Singh (PW15) for investigation.
4. Trap was laid on 27/03/2008. Presence of independent witnesses was ensured at about 4 pm on 27/03/2008. In the pretrap proceedings, PW14 received a call on her mobile phone at about 7.30 pm from mobile number 9953464891 of accused but said call was not attended to by PW14 as her mobile phone was to be connected with the RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 3/78 CBI vs Dilip Kumar Thakur recording instrument. Thereafter, conversation amongst accused, Sh Atul Vashisht and PW14 held during a call made by PW14 to accused in presence of the independent witnesses was recorded. In this conversation, accused instructed them to meet him in Vasant Kunj, New Delhi, at the same place where PW14 had met him the other day. Pre trap proceedings were completed at about 8 pm on 27/03/2008. PW14 with tainted amount of Rs 2 lakhs along with Sh Atul Vashisht left for the predecided spot at Vasant Kunj, New Delhi in her car and reached there at about 8.40 pm. Other trap team members including independent witnesses followed them in two vehicles. Accused leading on his motorcycle took them to market of D3/4 Pocket, Vasant Kunj, New Delhi. In the market, PW14 pursuant to the demand of bribe made by accused, offered him the tainted bribe amount of Rs 2 lakhs saying that Sh Atul Vashisht has given this amount to be paid to him. Accused asked PW14 "Koi baat nahi aap rakh lo apne pass". They also had some other general discussion.
5. About 15 minutes later, PW14, Sh Atul Vashisht and accused moved from the market towards Mahipal PurMehrauli Road in the car of PW14 driven by accused and stopped the car on the side of the main road after travelling about 22 ½ minutes towards his residence in Vasant Kunj, New Delhi. There PW14 again offered the bribe amount to accused. Accused initially stated that he will get them collected later on but subsequently, he accepted the same from PW14 before Sh Atul RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 4/78 CBI vs Dilip Kumar Thakur Vashisht. Thereafter accused again started the car and stopped in front of his flat no. 6064/1, Pocket D6, Vasant Kunj, New Delhi. While accused was about to alight from the car, he sought a paper from PW14 to keep the bribe amount therein. Meanwhile, on seeing surrounded by the trap team, accused dropped the tainted bribe amount of Rs 2 lakhs from inside of his Tshirt on the foot mat of the driver seat. While doing so, accused was seen by the witness Sh Krishan Pal Singh (PW13) and later he recovered this amount from there. Accused was caught red handed accordingly with the aforesaid amount of Rs 2 lakhs recovered from said car in front of his flat at about 9.35 pm on 27/03/2008.
6. Investigation revealed that in chemical examination, conducted by expert of CFSL, New Delhi, washes of both hands of accused as well as his worn clothes at the time of trap gave positive test for the presence of phenophthalein and sodium carbonate.
7. Investigation also revealed that analysis of the Call Detail Records (CDRs) of incoming and out going calls from mobile phones of PW14 and accused established the calls between accused and PW14 on the days as alleged in the FIR.
8. Questioned voices of accused contained in two digital recorders recorded on 26/03/2008 and 27/03/2008 with PW14 and Sh Atul Vashisht along with their specimen voices were sent to CFSL, RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 5/78 CBI vs Dilip Kumar Thakur New Delhi for comparison. Voice of accused had been identified by the witnesses but opinion of the expert was awaited till filing of the charge sheet.
9. Competent authority accorded sanction under Section 19 of The Prevention of Corruption Act, 1988 for prosecution of accused.
10. On completion of investigation, chargesheet was filed on 24/12/2008. Cognizance of the offences was taken on 19/01/2009. Copies were supplied to the accused and requirements of Section 207 of Cr. PC were complied with.
CHARGE
11. Charge for offences under (1) Section 7 of The Prevention of Corruption Act 1988 and (2) Section 13 (2) read with Section 13 (1)(d) of The Prevention of Corruption Act, 1988 was framed on 21/12/2009 in terms of Order dated 21/12/2009 against accused by my Ld. Predecessor to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
12. To connect arraigned accused with the offences charged, prosecution has examined in all 21 witnesses namely Sh Pawan Singh (PW1); Sh Ashish Kumar (PW2); Sh Amit Kumar (PW3); Ms. Rajni RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 6/78 CBI vs Dilip Kumar Thakur Vashisht (PW4); Sh Nilender Khanna (PW5); Sh Samandar Singh (PW6); Sh Rajan Sehgal (PW7); Sh Suresh Kumar (PW8); Sh R.K Singh (PW9); Sh V.B Ramteke (PW10); Head Constable Vishnu Dutt (PW11); Sh A.D Tiwari (PW12); Sh Krishan Pal Singh (PW13); Smt Kusum Sehgal (PW14); Deputy SP Tej Pal Singh (PW15); Sh Yogendra Pal Singh (PW16); Deputy SP V.M Mittal (PW17); Sh Jyotish Chandra Moharana (PW18); Deputy SP Surender Malik (PW19); Sh Deepak Kumar Tanwar (PW20) and Deputy SP Ram Singh (PW21).
STATEMENT OF ACCUSED
13. Thereafter accused was examined under Section 313 Cr. P.C. All incriminating material in evidence was put to the accused. Accused pleaded innocence and false implication.
14. Version of accused in his aforesaid statement is as follows. Sanction had been granted mechanically and is thus invalid. Complete record of the Call Detail Records (CDRs) had not been filed. Accused denied that PW5 had met him as alleged by him (PW5). Accused stated that his specimen voice was taken under duress, however, that specimen voice had not been produced in Court, nor the text which was given to him for reading had been produced. The alleged specimen voice produced on the Court record was not of accused. Accused stated that he never made any phone call to PW14 nor had any conversation with PW14, as was alleged by PW7 to have been told to him by his wife RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 7/78 CBI vs Dilip Kumar Thakur PW14. As per accused, CFSL report was perfunctory and since CFSL was under Administrative and Supervisory control of CBI being a division of CBI, had given a biased, incorrect report. CFSL is not an independent agency by itself. Accused also stated on the day when bail petition of Sh Atul Vashisht, an accused in another matter, was listed for hearing in Hon'ble High Court, then the entire focus of the accused was to appropriately brief the Standing Counsel for CBI, to best of his capacities whereas the Order of the Hon'ble High Court is a matter of record. Accused also stated that PW20 was not an expert in the field of identification of suspect voice since he had no formal certificate, diploma, degree or other academic qualifications in the field of suspect voice examination or linguistic or any other related field. Accused also stated that his experience in CBI had made him aware that suspect voice identification, was a specialized field and merely a person, being an official of CFSL or having training of a week or so, cannot become expert in the field of suspect voice identification, therefore, the report of PW20 was perfunctory. As per accused, report Ex PW20/A was scientifically incorrect. No parameters, particularly, either the worksheets or spectrograms/spectrographs had been brought on record. Report itself admitted that certain sentences/words had been picked up for analysis as identified in the transcription, sent along with the samples/exhibits and a comparison, was projected to be made. The said transcription from where the identification of words/samples as having been spoken as specimen voice or suspect voice was not part of the report, thus, the correctness of RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 8/78 CBI vs Dilip Kumar Thakur the report cannot be tested. Accused also stated that as per his experience in CBI, any annotation given to a transcription, sent to CFSL, for the purposes of identification of voices, only governs the report of the CFSL; thus, the report of the CFSL was also incorrect. Accused also stated that report Ex PW20/A was also silent as to when the test started or when it ended; opinion itself, that is "Probable" is sufficient, to create illusion and also to expose a fact that report is only perfunctory and thus incorrect. Accused also stated that he did not knew about relations of PW14 and Sh Atul Vashisht. However, being Inspector of CBI, accused knew that Sh Atul Vashisht was working in Slum and JJ Department of MCD and was one of the conspirators of Jhuggi Jhompri Land Scam case, part of which was investigated by him (accused) and accused was complainant in nine cases. Accused admitted the registration of criminal case and arrest of Sh Atul Vashisht, in the case where he (accused) was IO. Accused also stated that he never called PW14 in reference to these cases; PW14 @ Neelu Sharma @ Chachi had acted as source for CBI and was instrumental in arrest of multiple Delhi police officials including SI Devender Rathi, ASI Sukhdev Singh etc; PW14 had also provided information to CBI and in this capacity, accused was in contact with PW14 initially; however, later on accused and PW14 became friendly. Accused also stated that his association with PW14 till accused was arrested in this case remained as an officer of CBI, trying to collect as much information as possible about illegal activity of government servants. Accused also stated that since he developed intimacy with RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 9/78 CBI vs Dilip Kumar Thakur PW14 as good friends, accused occasionally used to meet PW14 but this had got nothing to do with his service conditions; even on the day of trap, PW14 had been informing him (accused) about laying a trap for a Delhi police official of NDPS Branch having office at Kamla Market. Accused also stated that he did not knew the activities of PW14 with respect to other persons including Sh Atul Vashisht. Accused also stated that nobody made calls to him in December 2007 as alleged by PW14, however, only PW14 used to call him. Accused also stated that he never met PW14 in the company of other persons. Accused also stated that he had discharged his duties in participating in investigation of the case, including filing of verification case as per directions of his superiors but had never met Pradeep Goel or Sandeep Jain, in the manner as stated by PW14 whereas Sandeep Jain met accused in CBI office in reference to police custody of his father Sh Ashok Jain. Accused also stated that he never demanded or accepted any money from anyone nor knew about Nilender Khanna or his activities. Accused also stated that he had visited Mukherjee Nagar with PW14; the said visit was in relation to certain promised information about the documents relating to the JJ Land Scam case, wherein officials of Slum & JJ Department of MCD were involved with some private persons. Accused also stated that on 25/03/2008 he never demanded any money from PW14 or any other person; PW14 herself was cocomplainant in a case against SI Devender Rathi; PW14 was complainant in the case of ASI Sukhdev Singh of Hari Nagar Police Station, wherein she disclosed her name as Ms. Neelu Sharma; PW14 RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 10/78 CBI vs Dilip Kumar Thakur knew many CBI Officials, working in anti corruption branch of CBI as well as in Special Unit of CBI. Accused also stated that PW14 used to call him and he used to respond to her calls but never demanded any money from her, whereas the contents of verification memo Ex PW13/B (D2) dated 26/03/2008 were false. Accused also stated that no such alleged conversation on 26/03/2008 took place between him and PW14 and the recorded conversations were tampered. Accused also stated that the evidence which came on record, had proved contrary to the contents of the document of investigating agency and DVR contained tampered recordings while he (accused) never demanded any money nor accepted any money from anyone. Accused also stated that the search of his house was taken by PW19 and PW21 in presence of CBI SP Sh Ramnish. Accused also stated that recovery memo was not recorded properly and did not reflect the proceedings as it happened; Rs 98,000/ were found at his residence. Accused also stated that the conversations in the recordings were tampered; transcription of the conversations of date 27/03/2008 between PW14 and CBI officials of about 15 minutes duration were not on record. Accused also stated that PW21 was part of CBI team and had visited his residence on 27/03/2008 and remained present there through out the proceeding along with PW19. Accused also stated that without any wrong doing, his career and life had been spoiled.
DEFENCE EVIDENCE
15. Accused entered into his defence and examined ASI Man RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 11/78 CBI vs Dilip Kumar Thakur Singh (DW1); Sh. Sahnsar Pal (DW2); ASI Ram Charan Gangwal (DW3); Sh. Rajiv Dwivedi (DW4); Inspector Atar Singh (DW5) and Sh. Ashwani Kumar Chand (DW6) as defence witnesses.
ARGUMENTS
16. I have heard the arguments of Sh Naveen Giri, Ld. PP for CBI, Sh P.K Dogra, Ld. Senior PP for CBI; Sh Harsh K. Sharma and Sh Mohit Aggarwal, Ld. Counsels for accused; accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
17. Ld. Public Prosecutors for CBI argued that by the documentary evidence, recordings of the call conversations, transcripts of such call conversations and the deposition of prosecution witnesses, the prosecution has been able to prove that accused being public servant in the capacity of Inspector of Police, CBI, ACB, New Delhi and while so working had demanded Rs 3.50 lakhs on 20/03/2008, as illegal gratification other than legal remuneration from PW14 for facilitating grant of bail to her rakhi brother Sh Atul Vashisht, an accused in case RC 34(A)/2007, CBI, ACB, New Delhi whose bail petition was listed in High Court on 20/03/2008 for hearing and threatened to arrest Sh Atul Vashisht in nine other cases registered against him and to implicate PW14 in said cases in case the said demanded sum was not paid as bribe but later on reduced the said sum to Rs 2 lakhs and agreed to accept Rs 2 RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 12/78 CBI vs Dilip Kumar Thakur lakhs as bribe from PW14 on 27/03/2008 and accused demanded and accepted said sum of Rs 2 lakhs as bribe from PW14 on 27/03/2008 at about 9.30 pm at MehrauliMahipal Pur Road where he was caught red handed with the said amount of Rs 2 lakhs recovered from his car in front of his residence and the said sum of Rs 2 lakhs was so obtained by accused by corrupt or illegal means by abuse of his position of Inspector of Police, CBI, ACB, New Delhi in criminal misconduct; accordingly, the presumption embodied in Section 20 of The Prevention of Corruption Act, 1988 is liable to be invoked and since the accused has not rebutted the presumption aforesaid either from prosecution evidence or from defence evidence, so it is proved beyond reasonable doubt accordingly that accused had committed the offences punishable under Sections 7 and 13 (2) read with 13 (1)(d) of Prevention of Corruption Act 1988. Ld. Public Prosecutors for CBI have prayed for conviction of the accused accordingly relying upon the following precedents submitting that prosecution has proved its case beyond reasonable doubt:
(1) Dattatraya Krishnaji Joshi vs State of Maharashtra, 1991 Cri.L.J 2097; (2) Soma Bhai vs State of Gujarat, (1975) 4 SCC 257;
(3) Bhagwati & Others vs The State of Uttar Pradesh, (1976) 3 SCC 235; (4) Pal Singh & Others vs State of U.P., (1979) 4 SCC 345; (5) Hazari Lal vs State (Delhi Administration), (1980) 2 SCC 390; (6) M. Narsinga Rao vs State of A.P., (2001) 1 SCC 691; (7) State of U.P vs Hari Mohan & Ors., 2001 Cri.L.J 170 (SC); (8) Budh Singh vs State of M.P, 2007 III AD (Criminal) (SC)420; (9) Siddiqua vs Narcotics Control Bureau, 2007 I AD (Criminal) (DHC) 181; (10) T. Shankar Prasad vs State of Andhra Pradesh, (2004) 3 SCCC 753; (11) State of U.P vs Dr. G.K Ghosh, Criminal Appeal No. 609 of 1981 (SC); 1984 (1) R.C.R (Criminal) 22; AIR 1984 SC 1453; 1985 Cri.L.J 904; 1984 (1) SCC 254; (12) M.O Shamsudhin vs State of Kerala, 1995 (2) RCR 315; (13) Dalpat Singh & Anr. Vs State of Rajasthan, AIR 1969 SC 17;
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 13/78 CBI vs Dilip Kumar Thakur (14) Bhargavan & Ors vs State of Kerala, 2004 (1) RCR (Criminal) 452;
(15) State of U.P vs Zakaullah, AIR 1998 SC 1474;
(16) State of Maharashtra vs Narsingrao Gangaram Pimple, AIR 1984 SC 63;
(17) State of Andhra Pradesh vs R. Jeevaratham, 2004 (3) RCR (Criminal) 802;
(18) Meharban & Ors vs State of Madhya Pradesh, 1997 Cri.L.J 766 (SC);
(19) State (NCT of Delhi) vs Navjot Sandhu @ Afsan Guru, Criminal Appeal 373375 of
2004.
18. Ld. Counsel for accused argued that the case of prosecution suffers from fundamental defects, evidence on record proves framing and false implication of accused by the investigating agency, at the behest of PW14 complainant as there are material contradictions, severe infirmities and inherent improbabilities embodied in the evidence of prosecution witnesses, which go to the root of the matter and shake the version of the presented case of prosecution; the prosecution case cannot rest, in view of such infirmities, on its own legs. It was also argued that Rule 17.35 of CBI Manual makes necessary that in trap case some responsible and impartial person or persons should have witnessed the transaction and/or over hear conversation of suspect public servant but yet, despite the fact of Sh Sanjeev Arora having been deputed as shadow witness but was not made to travel with PW14, Sh Atul Vashisht when they travelled in the car. It was also argued that it was own admission of IO PW19 that as per his investigation, no case for offences in question was made out against arraigned accused; yet, chargesheet against accused was filed whereas Section 36 of Cr.P.C does not come to the rescue of prosecution as chargesheet does not reflect any emergence of new evidence after forming of opinion by IO PW19 or as to what persuaded superior officers RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 14/78 CBI vs Dilip Kumar Thakur to have opinion different from IO PW19. Even chargesheet per se does not reflect to have been filed as per directions of superior officers. Also was argued that complaint is devoid of any demand of money as bribe; DVR used in preverification was reopened and reused and for five existing audio files in DVR there was no explanation, even in CFSL report or otherwise. Also was argued that no transcription of content of alleged DVR was prepared and the transcription D28, D29 and D30 were prepared by IO PW19 without the help of any independent witness or complainant, so were not admissible. Also was argued that copy of data of questioned voices was not brought on record, which was admitted by IO PW19; before start of trap, there existed no admissible evidence reflecting any demand of money on the part of accused, even documents prepared at the pretrap stage only reflect that only complainant was informing about Rs 2 lakhs available with her in recorded conversation allegedly with accused and there existed no demand of money by the accused. Also was argued that recorded conversations in the DVRs were tampered with; Sh Atul Vashisht accompanying PW14 in trap proceedings was not examined as a prosecution witness and for that it has been prayed that adverse inference be drawn against prosecution as per Illustration (g) of Section 114 of Indian Evidence Act. Also was argued that when car of PW14 was surrounded by CBI officials at about 9 pm, it was already dark and therefore impossible to see what was being conducted inside the car, so when PW13 admitted that he could not see inside the car whether the zip of pant of accused was open or not, lap of RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 15/78 CBI vs Dilip Kumar Thakur the accused was not visible, it was not possible for anyone to see whether at all anything fell down from inside the Tshirt of accused; even PW13 did not see accused while throwing the tainted money from his hand; there existed no corroboration to the allegation of PW14 in respect of the events seen or heard by her transpiring in the car while Sh Atul Vashisht has been withheld as a prosecution witness. Also was argued that PW14 claimed to have informed/shared the allegations of demand and acceptance of money of pretrap stage with PW4, PW5 and PW7 but none amongst them supported such allegations of demand and acceptance of money of pretrap stage. Also was argued that the version of natural/chance witnesses including PW2 belie happening of events alleged by PW14, to have transpired in High Court of Delhi. Also was argued that initially PW14 drove her car and it was PW14 who was carrying tainted GC notes, none being there to regulate her activity in the car; later accused drove the said car, so there was possibility of transfer of phenolpthalein remnants from hands of PW14 to steering wheel of the car and from there to accused, which possibility is not ruled out; whereas PW14 admitted acts of physical interaction amongst her and accused, therefore, possibility of phenolpthalein remnants reaching T shirt/Vest/front side pant of accused cannot be ruled out as PW14 was sitting on the front seat near the accused. Also was argued that PW13 claimed existence of a cassette which remain unexplained; existence of six audio files in DVR Q1 without any explanation of their creation, modification, if any; use of DVR Q1 on two dates reflecting sealing, de RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 16/78 CBI vs Dilip Kumar Thakur sealing and again sealing, so creating opportunity of tampering; existence of two different audio files in DVR Q2 instead of purported one audio file pertaining to single recording per se is a sign of tampering in DVR or existence of an extraneous data which remains unexplained. Also was argued that MP3 was prepared and produced by PW14, yet neither it had been proved nor its contents were proved. Also was argued that the cross examination of TLO PW15 also created doubt in the contents of both the DVRs and MP3 was never recorded by him. Also was argued that transcription of conversations were made from contents of investigating copy of CDs, which were neither produced in the Court nor relied upon by prosecution whereas IO PW19 merely stated that he did not file them due to inadvertence while none of transcripts, which were unsigned, were prepared in the presence of PW14 or shadow witness nor their assistance were obtained in preparing them; even permission to prepare CDs from contents of DVRs was taken much later, from the time the transcription were provided to CFSL, as mentioned in report Ex PW20/A. It was also argued that the primary piece of evidence in the form of DVRs is not free from tampering; accordingly, the DVRs and the respective transcripts are not admissible in evidence. Also was argued that identification of voice by CFSL expert who was provided the transcript with identification of speakers (i.e., annotations) does not constitute a legitimate evidence. Also was argued that in view of deposition of defence witnesses it becomes clear that PW14 had not visited the office of CBI in the manner depicted in the chargesheet, be it RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 17/78 CBI vs Dilip Kumar Thakur the Unit ACI, or SU, either on 26/03/2008 or on 27/03/2008; therefore, receipt of complaint of PW14 on 26/03/2008 at ACI, or the endorsement of SP Sh Ramnish on complaint Ex PW13/A directing PW15 to verify, etc., or registration of the FIR in ACI Branch with signature of PW14 on 26/03/2008, is not only doubtful but also improbable. Also was argued that non mentioning of the procurement of DVRs etc, in dead stock register of ACI, also creates doubts about the deposition of other facts by prosecution witnesses. Ld. Counsel for accused has prayed for acquittal of accused since the prosecution has failed to prove its case against him beyond reasonable doubt and relied upon the followings precedents: (1) Panalal Damodar Rathi vs State of Maharashtra, AIR 1979 SC 1191; (2) Ayyasami vs State of Tamil Nadu, 1992 Cri.L.J 608 (SC); (3) Chander Bhan vs State (CBI), 73 (1998) DLT 318 (DHC); (4) Subash Parbat Sonvane vs State of Gujarat, AIR 2003 SC 2169; (5) Karnail Singh vs State of Punjab, 2009 (3) CC Cases (HC) 145; (6) State of Maharashtra vs Dnyaneshwar Laxman Rao Wankhede,2009 (4) RCR (Criminal) 217 SC;
(7) A. Subair vs State of Kerala, 2009 VII AD (SC) 117;
(8) V. Kannan vs State, 2009 IX AD (SC) 293; (9) Banarsi Dass vs State of Haryana, 2010 (3) JCC 1842 (SC); (10) Rajinder Singh vs State of Punjab, 2010 (1) CC Cases (HC) 60; (11) Harbans Singh vs State of Punjab, 2010 (2) CC Cases (HC) 287; (12) Ashok Kumar vs State of Haryana, 2011 (1) CC Cases (HC) 281; (13) Suraj Mal vs State (Delhi Administration), (1979) 4 SCC 725; (14) G.V. Nanjundiah vs State (Delhi Administration), AIR 1987 SC 2402; (15) Anand Sarup vs The State, 1988 Cri.L.J 756 (DHC); (16) Har Bharosey Lal vs State of U.P, 1988 Cri.L.J 1122; (17) Som Parkash vs State of Punjab, 1992 Cri.L.J 490 (SC); (18) C.M. Girish Babu vs CBI, (2009) 3 SCC 779; (19) Pyare Lal vs State, 149 (2008) DLT 425 (DB) (DHC); (20) Prem Raj Meena vs CBI, 2011 (1) Crimes 730 (Del.); (21) State of Kerala & Anr. vs C.P. Rao, (2011) 6 SCC 450; (22) Rup Chand vs Mahabir Parshad & Anr., AIR 1956 Punjab 173; RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 18/78 CBI vs Dilip Kumar Thakur (23) Yusufalli Esmail Nagree vs The State of Maharashtra, AIR 1968 SC 147; (24) N.S Rama Reddy etc vs V.V. Giri, AIR 1971 SC 1162; (25) R.M. Malkani vs State of Maharashtra, (1973) 1 SCC 471; (26) Mahabir Prasad Verma vs Dr Surinder Kaur, (1982) 2 SCC 258; (27) Ram Singh and Ors. vs Col. Ram Singh, 1985 (Supp) SCC 611; (28) Nilesh Dinkar Paradkar vs State of Maharashtra, (2011) 4 SCC 143; (29) P. Parasurami Reddy vs State of Andhra Pradesh, (2011) 12 SCC 294; (30) Amarpal (Raj Pal) vs State, 170 (2010) DLT 788 (DB) (DHC). RELEVANT LAW
19. The essential ingredients of Section 7 of Prevention of Corruption Act 1988 are that (i) the accused was a public servant; (ii) accused accepted or obtained the gratification for himself or for any other person; (iii) the said gratification was a motive or reward (a) for doing or forbearing to do any official act or (b) for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person.
20. The essential ingredients of Section 13 (1) (d) of Prevention of Corruption Act 1988 are (i) the accused was a public servant; (ii) accused used corrupt or illegal means or otherwise abused his position as such public servant and (iii) accused obtained valuable thing(s) or pecuniary advantage for himself or for any other person.
21. In the case of Dattatraya Krishnaji Joshi (supra), it was held that demand for money or any valuable thing is not necessarily to be RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 19/78 CBI vs Dilip Kumar Thakur proved to have been made in absolutely clear and specific words. Making of demand is matter of understanding between person who demands or person who proceeds to pay or who is to pay.
22. In the case of Soma Bhai (supra), it was inter alia held that failure to examine a material eye witness is not fatal to the prosecution case since such witness was close relative of accused and was given up since was won over by the accused. Non examination of such witness does not at all destroy the fabric of the prosecution case.
23. In the case of Bhagwati & Others (supra), it was held that it would be unsound to lay down a general rule that every witness mentioned in the first information report must be examined by the prosecution in all circumstances and that the failure to do so would lead to the rejection of the evidence of all others.
24. In the case of Pal Singh (supra), it was held that non examination by prosecution of certain witnesses mentioned in the first information report would cause no infirmity if the evidence actually led by the prosecution is reliable and trustworthy in appreciation of evidence.
25. In the case of Hazari Lal (supra), it was held that where the evidence of police officer who laid the trap was found entirely RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 20/78 CBI vs Dilip Kumar Thakur trustworthy, there was no need to seek any corroboration. It was further held that there is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an Officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance.
26. In the case of M. Narsinga Rao (supra) wherein prosecution proved that accused received gratification from complainant, in that event and circumstances Court can draw legal presumption that said gratification was accepted as reward for doing public duty and such legal presumption is compulsory and not discretionary. It was also held that the only condition for drawing such a legal presumption under Section 20 of The Prevention of Corruption Act 1988 is that during trial it should be proved that the accused had accepted or agreed to accept any gratification. The said section does not say that the said condition should be satisfied only through direct evidence.
27. In the cases of murders in Hari Mohan (supra) and Budh RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 21/78 CBI vs Dilip Kumar Thakur Singh (supra), it was inter alia held that the defective investigation cannot be made basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them. Even non examination of the investigating officer may have no bearing on appreciation of evidence of injured eye witnesses. A first information report is not supposed to be an encyclopedia of the entire event, so cannot contain the minutest details of the events.
28. In the case of Siddiqua (supra), it was held that the Court has to adopt a pragmatic approach while considering the spot investigations. Fair and impartial investigation is no doubt sacrosanct, but rituals of investigations cannot be insisted upon unless strict compliance of such rituals is prescribed by statutes. It was also held that there was no rule of evidence or procedural laws under the Code of Criminal Procedure or NDPS Act that every document must be prepared on the spot of recovery. Standing instruction(s) issued by Narcotic Control Bureau (NCB) were the guidelines issued by the department and advisory in nature but had not legal sanctity. Only statutory laws made by Parliament or rules made under delegated legislators/power as conferred by the Statute, have legal force. Circulars, administrative orders or Executive instructions, issued without any statutory powers are not binding in nature. They are instructions of prudence.
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 22/78 CBI vs Dilip Kumar Thakur
29. In the case of T. Shanker Prasad (supra), the evidence of complainant and trap witnesses established recovery of money from accused while defence plea was of the said money was paid towards tax which plea was held not tenable as there was no tax due and on contrary complainant was entitled to refund. Also therein the credit of the witnesses was not completely shaken nor were the witnesses thoroughly discredited.
30. In the case of Dr. G.K Ghosh (supra), it was held that the Court can accept the version of police officer and complainant when such version is supported by circumstantial evidence consistence with guilt even when the trap witness has resiled.
31. In the case of M.O Shamsudhin (supra), it was inter alia held that a person who is forced to pay bribe under threat of loss by public servant stands on a different footing from a person who willingly gives the bribe to the public servant to get his work done and later on files a complaint after his work has been done, whereby such a person is an accomplice. But evidence of such a person is to be scrutinized very carefully and is to be appreciated in a proper manner to base reliance thereupon but it cannot be laid down as a rule of law that evidence of such bribe giver, as an approver, should be corroborated in all material particulars.
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 23/78 CBI vs Dilip Kumar Thakur
32. Relying upon the law laid in case of Dalpat Singh (supra), it was held by the Apex Court in the case of C.M Sharma vs State of Andhra Pradesh,(2013) 2 SCC (Cri.) 89 that one who gave bribe, cannot be said to be an accomplice as the same was extorted from him.
Also was held that "corroboration of evidence of a witness is required when his evidence is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorised in three categories viz. unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. However in a case in which a witness is wholly reliable, no corroboration is necessary. Seeking corroboration in all circumstance of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be any person who could see the giving and taking of bribe. As in the present case, a shadow witness did accompany the contractor but the appellant did not allow him to be present in the chamber. Acceptance of this submission in abstract will encourage the bribetaker to receive illegal gratification in privacy and then insist for corroboration in case of prosecution. Law cannot countenance such a situation."
33. In the case of Bhargavan (supra), it was inter alia held that normal discrepancies do not corrode the credibility of a party's case whereas material discrepancies do so. Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 24/78 CBI vs Dilip Kumar Thakur which are not normal, and not expected of a normal person.
34. In the case of Zakaullah (supra), wherein complainant's evidence was jettisoned on the mere ground that since he has a grouse against the delinquent public servant, he might falsely have implicated the latter; such a premise was held to be fraught with the consequence that no bribe given can get away from such stigma in any graft case. It was also held that even evidence of the trap laying officer can be acted upon without the help of any corroboration but for that testimonies of these material witnesses should be devoid of material contradictions/discrepancies and severe infirmities.
35. In the case of Narsingrao Gangaram Pimple (supra), it was inter alia held that the testimony of trap witness who bears no grudge or animus against the accused is ordinarily reliable and minor contradictions or inconsistencies in his version which are not very material are not sufficient to discredit his testimony. Mere failure of complainant, who participated in trap, to state about the demonstration of subjecting all members of the raiding party to anthracene powder test in the glow of bulb, was held in itself not sufficient to discredit his testimony particularly when corroborated by independent witnesses. Defence story of thrusting the bribe money into the pocket of a police officer in presence of others was held to be ordinarily unbelievable. Also was held that the Court should consider the motive of the complainant to RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 25/78 CBI vs Dilip Kumar Thakur falsely implicate the accused.
36. In the case of R. Jeevaratham (supra), wherein a trap laid, a public servant accused accepted gratification and tainted money was recovered, it was held that the presumption envisaged in Section 20 (1) of The Prevention of Corruption Act 1988 being compulsory in nature, is liable to be invoked and it is to be presumed that the accused accepted gratification as a motive or reward. Such condition to raise presumption need not be satisfied only through direct evidence.
37. In the case of Meharban (supra), it was held that what the Court has to adjudge is the substratum of the case and, in doing so, grain has to be separated from chaff. It is settled law some improvements there and some exaggerations there or some minor discrepancies in the evidence do not hurt the prosecution case.
38. In the case of Navjot Sandhu (supra), it was inter alia held that a mountain out of mole hill cannot be made out since it was found by the High Court that some files being system files were selfgenerating and selfwritten, so they reflected the date of writing as 21/01/2002 whereas the laptop containing said files was deposited in the Malkhana on 16/01/2002 and some files were last written on 21/01/2001; which facts were also so clarified by the Ld. Counsel for the State.
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 26/78 CBI vs Dilip Kumar Thakur
39. In the cases of Panalal Damodar Rathi (supra), Ayyasami (supra) and Chander Bhan (supra), it was inter alia held that corroboration in material particulars to version of complainant in evidence is necessary as complainant is in no better position than accomplice. In the case of Chander Bhan (supra) the complainant had animus besides motive to lodge report against accused.
40. In the case of Subash Parbat Sonvane (supra), it was held that for convicting the person under Section 13 (1) (d) of The Prevention of Corruption Act 1988, there must be evidence on record that 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 as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest.
41. In the case of Karnail Singh (supra), wherein the case purely based upon statements of official witnesses since complainant resiled and demand was not proved by independent witness, then considering material contradictions in prosecution version with regard to recovery, it was held that it was not safe to convict the accused as also defence version stood proved on record.
42. In the case of Dnyaneshwar Laxman Rao Wankhede RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 27/78 CBI vs Dilip Kumar Thakur (supra), it was held that demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of The Prevention of Corruption Act 1988. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on record in their entirety.
43. In the case of A. Subair (supra), it was held that "10. The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.
........................................
19. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration."
44. In the case of V. Kannan (supra), it was held that there was no quarrel with the proposition of law that in corruption cases for offences under Sections 7 and 13 (1) (d) read with Section 13 (2) of The Prevention of Corruption Act 1988, prosecution must prove both the RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 28/78 CBI vs Dilip Kumar Thakur demand and acceptance of bribe amount.
45. In the case of Banarsi Dass (supra), it was held that to constitute an offence under Section 161 of IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused.
46. In the case of Rajinder Singh (supra), it was held that the discrepancies in the statement of witness as well as investigator coupled with factum that signature of former were obtained in police station gave rise to suspicion that the witness did not accompany the raiding party and thus material infirmities struck a death knell to the prosecution case.
47. In the case of Harbans Singh (supra), it was held that merely because the amount was placed in drawer of accused did not mean that the same was demanded or accepted by the accused. The demand was not made in presence of any other person, testimony of shadow witness was totally at variance with version of complainant. It was held that there was failure of prosecution to establish demand and acceptance of bribe on the part of the accused.
48. In the case of Ashok Kumar (supra), shadow witness had not supported the prosecution case, numerous discrepancies noticed by RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 29/78 CBI vs Dilip Kumar Thakur Trial Court made the prosecution case highly doubtful.
49. In the case of Suraj Mal (supra), it was held that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
50. In the case of G.V Nanjundiah (supra), the testimony of complainant contractor was found not trustworthy, factum of acceptance of bribe was not properly established and guilt of accused was not proved.
51. In the case of Anand Sarup (supra), it was held that in case of bribery mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In such a case the person who offers bribe, is guilty of abetment of bribery, so complainant cannot be placed on any better footing than that of accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon.
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 30/78 CBI vs Dilip Kumar Thakur
52. In the case of Har Bharosey (supra), though two public witnesses were alleged to have accompanied the trap party but only complainant as solitary witness was examined; non examination of said public witnesses was held to be fatal so as to cast doubt about truthfulness of prosecution story. Evidence there was that money was recovered from drawer of table of accused and not from the person of accused, so the possibility that somebody or complainant himself surreptitiously might have kept the signed currency notes in drawer cannot be ruled out.
53. In the case of Som Parkash (supra), the witnesses who formed part of the raiding party were found to be not independent and evidence regarding handing over money to accused was held to be unbelievable, so the conviction of the appellant accused was set aside.
54. In the case of C.M. Girish Babu (supra), it was held that mere recovery of tainted money by itself is not enough, in absence of evidence to prove payment of bribe or to show that accused voluntarily accepted the money knowing it to be bribe.
55. In the case of Pyare Lal (supra), it was held that the facts in the matter pointed to every possibility of tainted currency notes having been kept by complainant in diary when accused had gone out from room RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 31/78 CBI vs Dilip Kumar Thakur to fetch water for complainant as was requested by him, which made prosecution version doubtful and false implication of accused could not be ruled out.
56. In the case of Prem Raj Meena (supra), it was held that tainted money was put in the briefcase by complainant of his own and not at the instance of accused, so it could not be said that accused was in conscious possession of tainted money recovered from briefcase. It was also held that said recovery of tainted money cannot be taken as a proof for acceptance of tainted money by the accused.
57. In the case of C.P Rao (supra), it was held that mere recovery of tainted money, divorced from circumstances under which it is paid, is not sufficient to convict accused when there is no corroboration from testimony of complainant regarding demand of bribe by accused.
58. In the case of Rup Chand (supra), the civil revision petition filed in year 1955 raised a question whether the witness can be confronted with the record of a conversation which had appeared in a tape recorder under the provisions of Indian Evidence Act. It was held by Hon'ble High Court of Punjab in year 1956 that a taperecorded conversation is admissible in evidence and if it contains a previous RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 32/78 CBI vs Dilip Kumar Thakur statement made by a witness, it can be used to contradict the evidence given by such witness before the Court.
59. In the case of N.S Rama Reddy (supra), it was held that a previous statement made by a person and recorded on tape, can be used not only to corroborate the evidence given by such witness in Court but also to contradict the evidence given by such witness before the Court, as well as to test the veracity of such witness and also to impeach his impartiality.
60. In the case of P. Parasuramy Reddy (supra), it was held that the circumstance by itself may not be able to establish that money was demanded and it was accepted as bribe. It could have been the possibility that the complainant had touched the currency notes and had shaken hand with the accused or it could be that any one of the investigating officer or the member of the raiding party had touched the fingers of the accused. That circumstance itself cannot be ruled out.
61. In the case of Amarpal (Rajpal) (supra), it was re emphasized for the benefit of the Trial Judges that it is their duty to see with microscopic eyes, all evidence and then test the veracity of eye witness account.
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 33/78 CBI vs Dilip Kumar Thakur
62. The core question that needs to be seen is as to whether there is sufficient admissible legal evidence on record for the prosecution to prove its case beyond reasonable doubt against arraigned accused for the offences charged.
APPRECIATION OF EVIDENCE
63. PW16, the then Joint Director and IG Police Anti Corruption Zone, Delhi CBI at New Delhi deposed that he was the competent authority to remove accused, the then Inspector in CBI, ACB, New Delhi from service. PW16 testified that he had accorded sanction Ex PW16/A dated 19/12/2008 under Section 19 of The Prevention of Corruption Act 1988 for prosecution of accused for the offences under Section 7 and Section 13 (2) r/w 13 (1) (d) of The Prevention of Corruption Act 1988 after application of his mind, being independently convinced after perusal of record that sufficient material, allegations and circumstances were collected in the course of investigation by CBI.
64. PW1, Nodal Officer, Idea Cellular deposed that vide letter Ex PW1/A (part of D24) dated 02/04/2008 he had sent Call Detail Records (CDRs) Ex PW1/B (part of D24) of mobile number 9911971000 for the period from 01/08/2007 to 28/03/2008 in the name of PW14 along with copy of Customer Application Form (CAF) Ex PW1/C (part of D24) and copy of driving licence as identity proof Ex PW1/D (part of D24).
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 34/78 CBI vs Dilip Kumar Thakur
65. PW3 deposed that in August 2007 he used to work in Karol Bagh at the shop of Ashok Jain; Sh Sandeep Jain was son of Sh Ashok Jain. PW3 stated that he had handed over the photocopy of his driving licence [part of Ex PW18/A (colly)(previously Mark B)(part of D22)] to Sh Sandeep Jain as Sh Sandeep Jain wanted to buy a mobile connection for use of his sister and demanded his (PW3) identification proof. PW3 stated that the mobile connection number 9953464891 was purchased by Sh Sandeep Jain and money was paid by Sh Sandeep Jain. As per PW3, said mobile connection was not used by PW3.
66. PW9, Nodal Officer of Bharti Airtel deposed that vide letter Ex PW9/A dated 26/06/2008 he had furnished information and documents (1) Ex PW9/B (colly) (part of D23) i.e., copy of application form and residence proof in the name of Sh Shivam; (2) Ex PW9/C (colly) (part of D23) i.e., Call Detail Records (CDRs) pertaining to mobile number 9818256993 of the period from 01/09/2007 to 27/03/2008. PW9 further stated that as per Ex PW9/C (colly) i.e., CDRs pertaining to mobile number 9818256993 at point X on running page number 149 of Ex PW9/C (colly), a call of duration 94 seconds was received from telephone number 01123386543 at 11:28:45 hours on 20/03/2008 on mobile number 9818256993; Cell ID Tower Identification Chart Ex PW9/D (part of D23) reflected that when the call as at point X, above said was started (phone was picked up) the subscriber was at near RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 35/78 CBI vs Dilip Kumar Thakur by ITBP, Block2, CGO Complex, New Delhi while when the call ended after 94 seconds, the subscriber was at Nizamuddin Basti.
67. PW18, the then Alternate Nodal Officer in Vodafone Essar Limited deposed that with letter dated 10/04/2008, part of Ex. PW18/A (colly) (D22), he had submitted the subscriber information of mobile number 9899932522 to be in the name of Sh. Tarun Kumar Jain of Keshav Puram, Lawrence Road, New Delhi. Also with aforesaid letter dated 10/04/2008, PW18 gave certified Call Detail Records (CDRs), part of Ex PW18/A (colly) (D22) of mobile phone number 9953464891 of the period from 01/08/2007 to 28/03/2008, which CDRs were generated by PW18 from computer system of his office, by use of his authorized password, along with certified copy of the Customer Application Form (CAF), part of Ex PW18/A (colly) (D22) (previously Mark A), in the name of PW3 Sh Amit and copy of Driving Licence, part of Ex PW18/A (colly) (D22) (previously Mark B), of PW3.
68. PW4, LDC in Slum and J.J Department, MCD, Delhi deposed that her husband Sh Atul Vashisth was also LDC in MCD. PW4 stated that in the year 2007 or 2008, a search was carried out by CBI at her residence; after search, her husband was arrested by CBI and was detained in Tihar Jail. As per PW4, her husband was admitted to interim bail for fifteen days in December 2008. PW4 testified that she knew PW14 who was acquainted with her husband. PW4 had met PW14 in RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 36/78 CBI vs Dilip Kumar Thakur connection with case of her husband who was detained in Tihar Jail. Since PW4 remained ill, so PW14 was looking after the case of her (PW4) husband and PW14 used to meet Sh Atul Vashisht in jail as well as attend the case in Court also besides which PW4 met PW14 outside her (PW4) house in connection of said court case. PW4 used to ask PW14 about the fate of case of her husband and PW14 used to tell PW4 that in connection of case of her husband, some money would have to be arranged for payment like payment to an Advocate and at one time PW14 told PW4 to arrange Rs 50,000/ which money was arranged by PW4 from her brother PW5 and handed over to PW14.
69. PW5, Estate Agent deposed that he was brother of PW4 and his brotherinlaw Sh Atul Vashisht (husband of PW4) introduced him (PW5) to PW14 at the time of his (PW5) marriage. As per PW5, PW14 was also known as Bubble. PW5 testified that he stood surety for Sh Atul Vashisht when he was released on interim bail in some other case but was not knowing as to what efforts were made for his bail and PW5 used to do whatever was told by his sister PW4 to him. On resiling, PW5 was cross examined at length but he did not support the case of prosecution. PW5 simply stated that in the month of NovemberDecember 2007 he had taken PW4 to Gole Dakkhana where she met PW14. PW5 stated that he received phone call of PW4 during those days where upon PW4 asked PW5 to arrange Rs 50,000/ for bail of Sh Atul Vashisht. As per PW5, on the same day he received call on his mobile phone from mobile phone of RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 37/78 CBI vs Dilip Kumar Thakur PW14 where upon PW14 asked PW5 to hand her over Rs 50,000/ at 8 pm as told to PW5 by PW4. PW5 further stated that PW14 had called him near P.S Vasant Vihar and when PW14 came near P.S Vasant Vihar at about 8 pm, PW5 handed over Rs 50,000/ to her. PW5 deposed that the mobile phone number 9911971000 was of PW14.
70. PW2 deposed that in February 2008 he was working as Special Public Prosecutor in Delhi High Court in CBI cases. During such posting of PW2, bail petition of Sh Atul Vashisht in RC number 34/07, ACB, New Delhi was assigned to PW2 whose hearing was fixed in Court number 29 on 20/03/2008 and IO of that case was accused who did not come for briefing PW2, so PW2 had asked PW11 Constable Vishnu Dutt, Naib Court, CBI of DLA office to call accused. Accordingly, PW11 telephonically conveyed instructions of PW2 to accused. On asking of PW2, accused met PW2 outside Court number 29 and briefed about the case to PW2 for about ten to fifteen minutes. As per PW2, at that time it was the practice that IO would remain present till the disposal of the bail petition. PW2 testified that the bail petition of Sh Atul Vashisht was allowed by the Hon'ble High Court.
71. PW7, husband of PW14 deposed that PW14 was upset due to receipt of some phone calls at their residence and said phone calls were made by officer of police/CBI, wanting to buy a car and asked for bribe in the case of Sh Atul Vashisht, a family friend of PW7. PW7 RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 38/78 CBI vs Dilip Kumar Thakur stated that when he asked PW14 as to why the officer was asking for bribe, then PW14 told to PW7 that there was some evidence against her and she may be involved in this case. As per PW7, the bribe demanded by the officer was around Rs 3 lakhs and PW7 told his wife PW14 that they did not have this much of money. PW7 testified that upon asking to arrange about Rs 50,000/ which sum was available, said sum was paid by PW14 to the officer who was making the telephone calls, but yet after sometime PW14 started getting calls from the officer demanding the balance amount and at that time PW7 was on official tour, so PW7 told PW14 that if she was in trouble, she can ask her sister Kamlesh for some money. PW7 elicited that he himself never had a talk with accused. So his elicited version regarding demand of bribe by aforesaid officer from PW14 was hearsay, told to him by his wife PW14 and is inadmissible in evidence being hit by Section 60 of Indian Evidence Act (IEA). On cross examination by Ld. PP for CBI when PW7 resiled, PW7 denied suggestion of Ld. PP for CBI that aforesaid money was demanded to save Sh Atul Vashisht for involvement in a criminal case. As per PW7, when the talk of payment of balance amount came up, Sh Atul Vashisht was on bail. PW7 stated that he had come to know that the name of the said officer was Mr. Thakur but did not knew the full name of said officer, so could not say whether it was Dilip Kumar Thakur.
72. Investigating machinery of premier investigating agency came into motion on lodging of complaint Ex PW13/A (D1) by RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 39/78 CBI vs Dilip Kumar Thakur complainant PW14. PW14 claimed Sh Atul Vashisht was her rakhi brother and arraigned accused in another case (RC 34(A)/2007/ACB/DLI) investigated by accused as Inspector of CBI. Premises of PW14 were also searched in investigation of above said RC but nothing objectionable was found. Despite accused having called up on mobile phone number 9911971000 of PW14, she refused initially to meet him (accused) on one pretext or other but later met accused near Rivoli Cinema, Connaught Place on an evening. Complaint Ex PW13/A (D1) inter alia finds mention that whenever PW14 used to meet accused in the trial court during bail petition of Sh Atul Vashisht, PW14 used to get hint from him that unless and until he was given money, getting relief was not easy. Another co accused in above referred RC was enlarged on bail granted by High Court of Delhi after which bail petition of Sh Atul Vashisht was filed in Delhi High Court. As per Ex PW13/A (D1), during hearing of bail petition of Sh Atul Vashisht on 20/03/2008, accused took PW14 near staircase in High Court saying he had got injuries in his hand in connection with the investigation of that case while riding on motorcycle and wanted to purchase a Santro car, for which he requires Rs 3.5 lacs. Also Ex PW13/A (D1) finds mention that accused further told PW14 that if they agree to pay aforesaid amount, he will manage to bail out Sh Atul Vashisht. PW14 told accused that she would talk to Sh Atul Vashisht in this regard and on 20/03/2008 bail was granted to Sh Atul Vashisht by High Court and on the subsequent day he was released from jail. As per Ex PW13/A (D1), allegedly on phone calls subsequent RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 40/78 CBI vs Dilip Kumar Thakur to 20/03/2008 till 23/03/2008 made by accused to PW14, PW14 got frightened and disturbed by persistent demand of money and threats to implicate her in a case and defame her as his keep, after which family of PW14 decided to pay Rs. 50,000/ to accused lying with them, which sum was allegedly paid after 8 pm on 23/03/2008 by PW14 to accused at the gate of his residential society, after the accused had accompanied complainant in her car on drive. As per Ex PW13/A (D1), accused also hinted PW14 to build up physical relationship with her, asking PW14 to come to the flat of one of his batch mate who stayed alone there at Mukherjee Nagar at same place, but pretending to be unwell PW14 left the place.
73. Making substantial improvements to her lodged complaint Ex PW13/A (D1), PW14 laid a new version in her deposition by saying that when bail application was moved on behalf of Sh Atul Vashisht by his Counsel on ground of illness of his wife and a verification report was called by the Court from AIIMS but since such verification report was not being filed by the accused, IO of the said case, then on request of Sh Sandeep Jain, son of Sh Ashok Jain, PW14 met accused in connection with filing of said verification report as PW14 was informed by Sh Sandeep Jain that they had paid Rs 14 lacs for interim bail of Sh Ashok Jain. PW14 further testified that when she accompanied Sh Sandeep Jain and Sh Rajiv Goel and met accused outside his society then when after accused had sent Sh Rajiv Goel to buy cigarette, Sh Sandeep Jain also RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 41/78 CBI vs Dilip Kumar Thakur got out of the car then accused thereafter had asked PW14 to meet him alone and next day PW14 met accused again outside gate of his society where accused had demanded Rs 1 lac from PW14 for filing of verification report in aforesaid bail application of Sh Atul Vashisht on medical ground of illness of his wife. PW14 further testified that she went to Tihar Jail, met Sh Atul Vashisht, told him about said demand of Rs 1 lac by accused whereupon Sh Atul Vashisht requested PW14 to ask his wife to arrange said amount and give it to accused. As per PW14, thereafter PW5, brother of PW4 i.e., wife of Sh Atul Vashisht arranged Rs 50,000/ and gave it to PW14 near Vasant Vihar Police Station which PW14 handed over to accused outside the society of accused but still thereafter accused did not file verification report. PW14 further testified that PW4 gave Rs 30,000/ and Rs 20,000/ on two occasions which she gave to accused but yet thereafter accused did not file the verification report, so consequently the bail application of Sh Atul Vashisht was rejected. All afor elicited facts find no place in lodged complaint Ex PW13/A (D1) nor any reason of their omission in Ex PW13/A (D1) finds place in testimony of PW14 or by any officer of investigating agency in his deposition. These facts simply introduce payment of demanded sum of Rs 1 lac in parts of Rs 50,000/; Rs 30,000/ and Rs 20,000/ by PW14 to accused as were arranged by PW5 and PW4 so that accused would file the verification report to bail application of Sh Atul Vashisht on ground of illness of his wife so as to facilitate the bail of Sh Atul Vashisht. There is nothing on record to elicit what prevented RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 42/78 CBI vs Dilip Kumar Thakur PW14 to mention the elicited fact of demand and payment of bribe of Rs 1 lac in part by her, arranged by relatives PW4 and PW5 of Sh Atul Vashisht in lieu of filing of favourable verification report regarding illness of wife of Sh Atul Vashisht to facilitate grant of bail of Sh Atul Vashisht by accused. Absolutely new version, aforesaid, has been introduced and PW14 further testified that on 20/03/2008 when she was in High Court for hearing of the bail matter of Sh Atul Vashisht, in her talks with accused, she had told the accused that she had already paid him Rs 1 lac so how much more accused wanted for not opposing the bail application of Sh Atul Vashisht and it was then that accused told PW14 that he had to buy a Santro car of cost of Rs 4 lacs but he only wanted Rs 3.5 lacs. Twisted version of demand of Rs 3.5 lacs and conversation amongst PW14 and accused on 20/03/2008 in Delhi High Court has been narrated by PW14 in deposition, per contra to version contained in complaint Ex PW13/A. None of the assertions of PW14 elicited above find mention in testimonies of PW4 and PW5. Despite having been cross examined by Ld. Prosecutor for CBI neither PW5 admitted of having arranged Rs 50,000/ for bribe nor PW4 admitted of having given Rs 30,000/ , Rs 20,000/ on two different occasions to PW14 to be given to accused in lieu of filing of verification report on bail application of Sh Atul Vashisht on ground of illness of his wife i.e., PW4. Per contra, PW4 had testified that PW14 used to tell her (PW4) that in connection of case of her husband some money would have to be arranged for payment like payment to an Advocate and at one time RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 43/78 CBI vs Dilip Kumar Thakur PW14 told PW4 to arrange Rs 50,000/, which money was arranged by PW4 from her brother PW5, etc. subsequent to which PW5 handed over said amount of Rs 50,000/ to PW14. PW5 categorically denied of the sum of Rs 50,000/ handed over by him to PW14 was to be paid to accused for interim bail of Sh Atul Vashisht. No document/material has been placed on record nor any fact has been proved for any jail visit of PW14 for meeting with said Sh Atul Vashisht in Tihar Jail.
74. Complaint Ex PW13/A (D1) was marked to TLO PW15 for verification. PW15 arranged independent witnesses namely PW13 and Sh Naresh Tomar from Horticulture Department, Central Zone MCD, Lajpat Nagar, New Delhi. PW15 testified that on 26/03/2008 at about 9.30 pm a phone call was made by PW14 to accused over his mobile phone while mobile phone of PW14 was attached to a Digital Voice Recorder (in short DVR) for the purpose of recording the conversation between PW14 and accused and prior to this, it was ensured that the DVR was not containing any previous recordings. As per PW15, in the conversation that took place between PW14 and accused, heard on mobile phone on loudspeaker mode by all present including PW13, PW14, Sh Naresh Tomar, accused had asked complainant to call him on the next evening. In such conversation recorded in the verification proceedings in DVR Ex PW13/G (Q1) no demand of money was made by accused but it was PW14 who said that Sh Atul Vashisht was with her and Rs 2 lacs had been arranged; PW14 further asked where she RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 44/78 CBI vs Dilip Kumar Thakur should come to give Rs 2 lacs upon which from the other side on telephone it was said it was too late that day and they will talk on the next day. Neither accused demanded the money nor agreed to accept the money offered by PW14 on next day in such conversation in the verification proceedings, per contra to averments in Verification Memo Ex PW13/B (D2).
75. TLO PW15 asked PW14 on 26/03/2008 to come to CBI office on next day i.e., 27/03/2008 with bribe amount of Rs 2 lacs. Similarly independent witnesses were also asked to come on 27/03/2008 for further proceedings.
76. TLO PW15 testified that on 27/03/2008 two more witnesses were arranged in CBI Office; a CBI team comprising of PW15, PW13, PW17, PW21, Sh Naresh Tomar, Sh Sanjeev Arora, Sh Mulakh Raj Krara, SI Deepak Purohit, Inspector Shobha Dutta, Sh Atul Vashisht was constituted for the purpose of laying trap against accused. All trap team members had assembled in CBI office at Jam Nagar House. The independent witnesses and the CBI team were apprised of the purpose of assembling there. Complaint Ex PW13/A was shown and explained to all the witnesses. PW14 produced Rs. 2 lacs consisting of 105 GC notes of denomination of Rs 1000/ collectively Ex PW13/J and 190 GC notes of denomination of Rs 500/ collectively Ex PW13/K, which were to be given to accused on his demand. The number and denomination of the RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 45/78 CBI vs Dilip Kumar Thakur GC notes were noted down. As per PW15, the envelope which was sealed on the night of 26/03/2008 containing DVR Ex PW13/G (Q1) having telephonic conversation between PW14 and accused was opened and DVR Ex PW13/G (Q1) was taken out and played in the presence of all the independent witnesses. PW15 deposed that PW17 gave demonstration on the use of Phenolpthalien Powder and solution of Sodium Carbonate in the trap proceedings. PW15 also testified that the personal search of PW14 was conducted by Inspector Shobha Dutta. In the course of pretrap proceedings, PW14 received a call from accused but since DVR was yet to be connected with the mobile phone of complainant, the call was not picked up by PW14 as per the instructions of PW15. After the mobile phone was connected with the DVR Ex PW13/G (Q1), thereafter on directions PW14 made call to mobile phone of accused from her mobile phone and the conversation was heard by all present as mobile phone was put on speaker mode. PW15 testified that as per conversation, accused had asked PW14 to come to the same place, where they had met on the previous occasion, a few days ago. As per PW15, PW14 also told accused that Sh. Atul Vashisht would also be accompanying her.
77. In the pretrap proceedings aforesaid GC notes Ex PW13/J (colly) and Ex PW13/K (colly) were smeared with Phenolpthalien Powder, kept in the hand bag of PW14. DVR Ex PW13/G (Q1) was sealed in an envelope under the signature of the witnesses, PW14 and RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 46/78 CBI vs Dilip Kumar Thakur PW15. Memorandum Ex PW13/D (D5) for the proceedings regarding recording of the conversation on 27/03/2008 between PW14 and accused was prepared and signed by the witnesses. PW15 testified that after tainted GC notes were put in bag of PW14, PW14 was instructed not to touch the said GC notes unless and until the same were required to be given to accused on his demand and one DVR Ex PW13/T (Q2) was planted in clothes of PW14 for the purpose of recording of conversation with accused during the trap proceedings under the instructions to PW14 to switch it on before meeting accused and after the transaction of bribe was over PW14 was instructed to give a signal by giving a missed call on a mobile number used by PW15. Trap party members and the witnesses were instructed to keep a watch over accused and PW14 during the trap proceedings. As per PW15, all the trap party members and the witnesses conducted personal search of each other to ensure that nothing incriminating was kept by anybody.
78. Ex PW13/H (D4) finds mention inter alia that independent witness Sanjeev Arora had been asked to act as a shadow witness and remain close to the complainant to over hear the conversations and see the transaction of bribe amount which may take place between the complainant and accused. Such directions given to said independent witness Sh Sanjeev Arora had been put to winds when Sh Sanjeev Arora was not permitted to accompany complainant PW14 in her car in trap proceedings but instead Sh Atul Vashisht was permitted to RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 47/78 CBI vs Dilip Kumar Thakur accompany complainant PW14 in her car to the place of meeting with accused. PW21 witness of pretrap proceedings was directed to stay back with witnesses Sh Mulakh Raj Krara and Sh Naresh Tomar to utilize their services for any exigencies. Even Inspector Shobha Dutta was also asked to wait in the office. PW15 also prepared Handing Over Memorandum Ex PW13/H (D4) at CBI Office in Jam Nagar before leaving which was signed by its signatories.
79. PW15 testified that at about 8.00 PM on 27/03/2008, the trap party and PW14 left CBI office for Vasant Kunj where accused had called PW14 to come. PW14 drove her WagonR car in which Sh Atul Vashisht accompanied her followed by the trap party members along with PW13 and Sh Sanjeev Arora in two office cars. PW13 and Sh Sanjeev Arora along with SI Deepak Purohit were with PW15. PW17 along with other staff was in another vehicle. PW15 deposed that at about 8.40 PM on 27/03/2008 when they reached the IN gate of Pocket D6 Vasant Kunj, PW15 received a call from PW14, who told that accused had asked PW14 to meet him on Mahipal PurMehrauli Road near Vasant Kunj Flyover. PW15 instructed PW14 accordingly to meet accused at said place. PW14 testified that after they had left the CBI office on 27/03/2008 and reached Vasant Kunj, PW14 had made a phone call to accused that she had reached outside the gate of society and then accused asked PW14 to wait near the flyover where she had met accused on 23/03/2008 after which PW14 informed about it to PW15 by RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 48/78 CBI vs Dilip Kumar Thakur telephonic call. PW14 drove her car near the flyover where accused was waiting on his motorcycle and asked them to follow him. PW14 and Sh Atul Vashisht followed the motorcycle of accused. Accused stopped his motorcycle near the Mini Market and asked PW14 and Sh Atul Vashisht to go to a restaurant but they refused as per instructions of CBI. 15 minutes conversation took place between PW14, accused and Sh Atul Vashisht while standing on the road. As per PW14, then accused gave a signal to PW14 to send back Sh Atul Vashisht. As per PW14, accused did not want to accept money in front of Sh Atul Vashisht. PW14 testified that Sh Atul Vashisht had asked PW14 to hand over Rs 2 lacs to accused but accused requested PW14 to keep the money with herself and hand them over to him on a Saturday or Sunday after which accused sat on the driver seat of car of PW14, adjacent to which PW14 also got seated. Sh Atul Vashisht sat on the back seat and accused had started the car. PW14 testified further that accused had stopped the car at a deserted place at MehrauliMahipalpur Road and thereafter accused demanded money by giving signal upon which PW14 and Sh Atul Vashisht gave Rs 2 lacs to accused, after which accused had started the car at high speed and had stopped the car at the service road outside his flat. Such naration of sequence of events by PW14 is per contra to version of prosecution case embodied in Recovery Memo Ex PW13/U (D6) which finds mention inter alia that the recorded conversations on replay revealed (1) that initially when Kusum Sehgal offered the bribe, accused said she should keep it with herself; (2) subsequently on being RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 49/78 CBI vs Dilip Kumar Thakur offered, accused said that he would talk on Saturday, Sunday and (3) at one stage accused also said that he would collect it later. It is apparent on the face of record that at no stage of the matter, any demand of any bribe sum was made by the accused orally or by any kind of gesture. Deposition of PW14 that accused demanded money by giving signal, is an introduction of new version, per contra to the presented case of prosecution.
80. IO PW19 candidly admitted in his cross examination that it appeared from the heard recorded conversation that Sh Atul Vashisht and PW14 were offering the bribe amount to accused despite his avoidance to receive it. PW19 also elicited that he had asked Sh. Atul Vashisht as to why he (Sh Atul Vashisht) and PW14 were offering the amount of Rs. 2 lacs again and again on 27/03/2008 in car of complainant and as to why Sh Atul Vashist was trying to keep the bribe amount in the pocket of accused upon which Sh Atul Vashisht told PW19 that at that time despite their repeated offers to accused, accused was not accepting the bribe amount and that is why they were trying to keep the bribe amount in the pocket of accused. Afore elicited facts inter alia became basis for PW19 to give his total report regarding investigation to his superiors inter alia with the view of recommendation of prosecution of PW14 and Sh. Atul Vashisht for committing offence u/s 120B IPC read with Section 12 of Prevention of Corruption Act as well as for prosecution of PW14 for offence u/s 182 IPC and other RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 50/78 CBI vs Dilip Kumar Thakur substantive offences. To that effect even PW19 prepared Final ReportI (FRI) and in view of PW19 no case was made out against accused under Sections 7; 13 (2) and 13 (1) (d) of Prevention of Corruption Act, 1988 while PW19 said that his opinion was neither binding on his superiors nor on any authority. Superiors of PW19 had reached to the conclusion of there existing a prima facie case against accused for the offences charged and accordingly after obtaining sanction accused was charge sheeted.
81. IO PW19 also elicited that letter Ex PW19/DB was true copy of letter of his SP dated 06/07/2009 sent to SP Special Unit, CBI with annexed details Ex PW19/DC. Aforesaid letter Ex PW19/DB found mention of enclosing of complete details of PW14 in the proforma of UCM for inclusion of her name in the list of UCM and the copy of approval given by DCBI i.e., Director of CBI in this regard was also annexed. Ex PW19/DC was the aforesaid complete details of PW14 in the proforma of UCM i.e. 'Undesirable Contact Man'. Descriptive role of PW14 mentioned in Ex PW19/DC was 'for her work, she visits government officials, used to influence and entice them, specially the male public servants and if they do not fall in her line, she takes different recourse to sideline the concerned officials' and the mode of corrupting officers as 'by offering bribe and seducing'. PW15 elicited that a person is declared UCM, when it is found that the person is of suspicious charactor.
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 51/78 CBI vs Dilip Kumar Thakur
82. Directions of TLO PW15 detailed in Ex PW13/H (D4) to Sh Sanjeev Arora, independent witness to act as shadow witness and remain close to the complainant to over hear the conversations and see the transaction of bribe amount which may take place between complainant and accused were infact a farce. Sh Sanjeev Arora was not permitted to accompany PW14 in her car in the course of trap. How could Sh Sanjeev Arora over hear the conversations of PW14 and accused, if he was not an inmate of car of PW14 and accused nor present in the course of alleged transaction of bribe in car of PW14?
83. One who allegedly over heard the conversation and saw the transaction of bribe amount alleged to have taken place between complainant and accused was the witness namely Sh Atul Vashisht. Sh Atul Vashisht was listed witness number 7 in the list of witnesses as Annexure B of the chargesheet. When on 14/10/2013 Sh Atul Vashisht was in attendance to testify as prosecution witness, Sh V.K Ojha, Ld. PP for CBI gave statement as ''I drop Sh Atul Vashisht as prosecution witness''. Consequent to that PW Sh Atul Vashisht was discharged. Sh V.K Ojha, Ld. PP for CBI did not specify in his afore elicited statement of cited PW Sh Atul Vashisht having been won over by accused or such fact to be the reason for dropping Sh Atul Vashisht as a prosecution witness. Accused as a first informant/complainant, being then Inspector of CBI was instrumental in registration of nine criminal cases against RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 52/78 CBI vs Dilip Kumar Thakur Sh Atul Vashisht. There is no material on record to infer said Sh Atul Vashisht having been won over by accused. The same was also not the reason given in the afore elicited statement of the Ld. Prosecutor of CBI to drop Sh Atul Vashisht as a prosecution witness. Be that as it may, fact remains that Sh Atul Vashisht was most important and crucial witness in this matter as he was present in the car of PW14, in which offences in question are alleged by prosecution to have been committed by the accused and the talks/conversations inter se PW14, accused and Sh Atul Vashisht took place. Having seen and heard the relevant facts in question concerning offences charged, Sh Atul Vashisht was a relevant witness for the prosecution. Best evidence from the testimony of Sh Atul Vashisht has been accordingly withheld by the prosecution. In the fact of the matter, there is no option but to presume in accordance with Illustration (g) of Section 114 of The Evidence Act, 1872 that the withheld evidence of Sh Atul Vashisht, if brought on record by prosecution, which could have been brought on record by the prosecution, would have been unfavourable to the prosecution on relevant facts of demand and acceptance of bribe by accused, who withheld it.
84. In the course of cross examination, PW13 elicited that when car of PW14 was surrounded by CBI officials, nearside residence of accused, it was already dark as it was already about 9 pm. From that position where PW13 was standing, he could not see inside the car. Even RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 53/78 CBI vs Dilip Kumar Thakur PW13 could not say whether at that time the zip of pant of accused was open or not.
85. It is the case of prosecution unfolded by Ex PW13/U (D6) initially, later by charge sheet, statements under Section 161 Cr.P.C and version of PW14 contained in her deposition that when nearside residence of accused after PW14 had given a signal by missed call to PW15, CBI trap team members along with the witnesses surrounded the car of complainant PW14 where accused was on driver seat and on having seen the CBI team, accused dropped tainted bribe amount i.e., 105 GC notes of denomination of Rs 1000/ collectively Ex PW13/J and 190 GC notes of denomination of Rs 500/ collectively Ex PW13/K from inside his Tshirt Ex PW13/R2 inside the car after which PW15 TLO challenged the accused whereby identity of CBI team and witnesses were disclosed whereupon accused got perplexed. Left hand of accused was caught by PW17 and right hand of accused was caught by TLO PW15; bribe amount i.e., 105 GC notes of denomination of Rs 1000/ collectively Ex PW13/J and 190 GC notes of denomination of Rs 500/ collectively Ex PW13/K were recovered from the foot mat of driver seat by PW13 and on comparing were found to be the same as mentioned in Handing Over Memorandum Ex PW13/H (D4).
86. PW13 also admitted in the course of his cross examination that he had not seen himself the accused throwing the tainted money RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 54/78 CBI vs Dilip Kumar Thakur from his hands at the floor of the car of complainant PW14. TLO PW15 testified that after the car of PW14 was surrounded, it was seen that the bribe amount was lying on the foot mat of the driver seat of the said car. As per PW15, it was PW13 who informed that he had seen the accused dropping the bribe amount on the foot mat from his Tshirt. PW17 in his deposition did not say of PW13 having stated that he had seen the accused throwing money on foot mat of driver seat of car of PW14. It is culled out from the evidence on record that excepting for complainant PW14 there is no evidence on record from deposition of any witness in respect of the fact that accused took out 105 GC notes of denomination of Rs 1000/ collectively Ex PW13/J and 190 GC notes of denomination of Rs 500/ collectively Ex PW13/K from his Tshirt Ex PW13/R2 and threw them on the foot mat of the driver seat of car of complainant PW14.
87. In course of cross examination PW14 admitted that on 27/03/2008 from 7.30 pm to 11.24 pm, she was receiving and making telephone calls from mobile number 9911971000 while sitting in her car or waiting on the road. Though PW14 denied that in talks on 27/03/2008 she had talk with accused with respect to getting a trap organized on Inspector/Police Official Katoch who was working in Narcotics Branch of Delhi Police but on that count she was confronted with the portion D1 to D2 of transcript Ex PW14/A3 which was purportedly of the conversation in the course of aforesaid period from 7.30 pm to 11.24 pm RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 55/78 CBI vs Dilip Kumar Thakur on 27/03/2008. PW14 also admitted of having uttered words "Bar Var Le Ja Rahe Ho" in said conversation. PW14 also admitted to have asked accused in aforesaid conversation to have alcohol/Daru as well as that she told someone that if Katoch was calling then he had to go and advised said person to make a complaint, in case Katoch is troubling. Admittedly, PW14 was having talks on her mobile phone with others including on the calls received by her in the course of trap proceedings. In the course of cross examination, PW14 elicited that in a matter she had given money to SI Devender Rathi as per his instruction after taking such money from Sh Anil Prakash Nijhawan. PW14 also admitted of having filed a writ petition against Inspector Niranjan Singh, SI Vinod Gandhi of Police Station Connaught Place and in terms of orders in said writ petition, the investigation was entrusted to CBI who filed closure report and PW14 filed objections to said closure report. PW14 also admitted to have got registered criminal cases against ASI Sukhdev Singh, HC Mahender Singh of Police Station Hari Nagar prior to May 2007 and at that time Sh. N.M. Singh was the SP of CBI. PW14 also admitted that case under Section 323 read with Section 3 of Prevention to Damage to Public Property Act was registered against her vide FIR No. 1386, dated 22/11/97 in Police Station Connaught Place on the allegations of having slapped ACP Vigilance Sh. B.K. Singh and having broken wind shield of a public vehicle by stone. PW14 also admitted of having lodged a complaint of eve teasing and molestation against one Sh. Umed Singh vide FIR No. 507, dated 18/12/93, under Section 354 IPC at RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 56/78 CBI vs Dilip Kumar Thakur Police Station Mandir Marg. PW14 also elicited that she accompanied complainant of case FIR No. 450/94, under Sections 509, 323, 325, 312 IPC against against Ct Pramod to Police Station Connaught Place for registration of the case. PW14 also admitted that she was a party in the Kalandra registered under Sections 107/150 of Cr.P.C. i.e., for proceedings for breach of peace, with respect to a complaint lodged by her against Sh. Bishambar Nath Pathak. PW14 also admitted that she filed a Criminal Writ Petition number 676/96 with respect to death of a street beggar Anoop by making allegations that such beggar was tortured by Inspector Niranjan Singh and SI Vinod Gandhi and on directions of the High Court, case was registered against them and its investigation concluded with the closure report. PW14 took shelter to inability to recollect when she was asked, whether she got registered FIR No. 365/97 under Section 354 IPC against police personnel at Police Station Connaught Place or whether on 12/13.8.99 on closure report no. 01/99 filed by CBI, objections filed by her were found to be baseless. PW14 also admitted that she filed Criminal Writ Petition against Dr Aditya Arya (the then DCP, New Delhi), Sh. Dinesh Bhatt, (the then DCP) and Inspector S.K. Giri in the year 1996, with respect to which CBI conducted inquiry but she was not able to tell whether these officials were acquitted and could not admit or deny the suggestion that these officials were acquitted.
88. Afore elicited admissions of PW14 in respect of bringing RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 57/78 CBI vs Dilip Kumar Thakur into motion criminal investigation machineries simplicitor reflect the personality of PW14 that she could not be bogged down by alleged demands of bribe or threats by any officer of investigating agency, so as to come under fear or threat and not report to authorities concerned for appropriate and necessary action at the inception of alleged wrongful acts of accused for the demand and acceptance of bribe sums. There was accordingly no impediment in the way of PW14 to have got accused caught red handed when she initially allegedly delivered Rs 50,000/ to him and/or later when she allegedly delivered Rs 30,000/ and Rs 20,000/ respectively.
89. PW14 elicited voluntarily in her cross examination that on 23/03/2008 accused was forcing her for physical relations and to take him to her flat at Mukherjee Nagar and till 12.30 am or 1 am of 24/03/2008 she remained with accused that night. As per PW14, at around 8.30 pm or 9.30 pm on 23/03/08 she and accused went inside her flat 1117, Second Floor, Mukherjee Nagar, Delhi where accused disturbed her, upon which PW14 told accused that her menses (periods) were in progress and she was able to save herself due to which accused became annoyed from her but kept silent. Also PW14 further elicited that accused was having Bislery bottle of water and a bottle containing alcohol in a polythene; accused then made his hand wet with water and touched the cash sum of Rs. 50,000/ with his wet hand and when he found that there was no chemical on the cash sum then he left RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 58/78 CBI vs Dilip Kumar Thakur the cash sum in the purse of PW14. Afore elicited facts find no mention in lodged complaint Ex PW13/A by PW14 or reported any where else by PW14.
90. In the course of her cross examination PW14 also admitted of having uttered "Mai Gadi Mein Nahi Chalunga", and "De Do" in the course of conversation in the trap proceedings. PW14 also elicited that in the conversation she had asked Sh Atul Vashisht to drink alcohol as he was not able to talk with accused under fear. PW14 also elicited in her crossexamination that when in trap proceedings, they were 10 steps away from the car, she said 'Nahi Mujhe Usme Se Das Hazar De Do Aur Ek Lakh....' to accused. Meaning thereby that PW14 was allegedly demanding a share in bribe sum. Also PW14 admitted of having said "Der mat karo, Laxmi ko aise nahi kartey hain, chodo yaar, kya...." to accused in the course of conversation in the trap proceedings for which PW14 elicited that after accused had stopped the car and while it was stationary she had said so to accused on the instructions of DSP Sh Ramnish who told her that either accused would take money or refuse to accept the money. Also PW14 elicited that Atul had said that "jeb mein daal dijeye chup chaap" upon which PW14 said that "Thoda Sa Ise Pocket Me Rakh Lo, Nahi Yar Chhodo, Nahin Nahin Inko Chhod Do, Vahan Tak Chalo Ghuma Lo.......Jab Duniya Me Muskil Ati Hai To..........." about which PW14 also elicited that accused was making gestures for her to alight Atul Vashist from the car as he was hesitating in RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 59/78 CBI vs Dilip Kumar Thakur taking the money in the car in the presence of Atul Vashist.
91. PW14 elicited of having purchased floor at House No. 1117, Mukherjee Nagar, Delhi from PW4, wife of Sh Atul Vashisht long before Sh Atul Vashisht was sent to judicial custody.
92. Before start of trap, there existed no admissible evidence reflecting any demand of money on the part of accused. Even documents prepared at the verification and pretrap stage only reflected that only PW14 was informing about Rs 2 lacs available with her in recorded conversations allegedly with accused and there existed no demand of money by the accused. When car of PW14 was surrounded by CBI officials after 9 pm on the night of occurrence, it was admittedly already dark and therefore impossible to see what transpired inside the car. Even PW13 elicited that he could not see what was happening inside the car. PW14 could not say whether zip of pant of accused was open or not, lap of the accused was not visible. It was not possible for anyone outside the car to see whether at all anything fell down from inside Tshirt Ex PW13/R2 of accused. PW13 did not see accused throwing the tainted 105 GC notes, of denomination of Rs 1000/ collectively Ex PW13/J and 190 GC notes of denomination of Rs 500/ collectively Ex PW13/K, from his hands to floor of car.
93. Complaint Ex PW13/A was bereft of averment of existence RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 60/78 CBI vs Dilip Kumar Thakur of any recording of any conversation inter se PW14 and accused previously recorded in MP3 Player Ex PW14/A5 (earlier Ex Q3). Initially PW14 drove her car and it was PW14 who was carrying tainted 105 GC notes of denomination of Rs 1000/ collectively Ex PW13/J and 190 GC notes of denomination of Rs 500/ collectively Ex PW13/K. None was there to regulate activities of PW14 and Sh Atul Vashisht in the car. Later accused drove the said car. There was every possibility of transfer of phenolpthalein remnants from the hands of PW14 to steering wheel of car and from there to accused. PW14 admitted acts of physical interaction amongst her and accused. So, possibility of phenolpthalein remnants reaching Tshirt Ex PW13/R2 / vest Ex PW13/R3 / front side pant Ex PW13/R1 of accused cannot be ruled out as PW14 was sitting on the front seat near the driver seat where accused was seated. Washes of hands and clothes of PW14 and Sh Atul Vashisht were neither taken nor sent for expert opinion nor preserved.
TAPE RECORDED CONVERSATION
94. In the case of Yusufalli (supra), on the question regarding admissibility of the tape recorded conversation, the Supreme Court observed that the contemporaneous taperecord of a conversation formed part of the res gestae and is relevant fact and admissible under Section 8 of Indian Evidence Act. The recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice, and, thirdly, the accuracy of RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 61/78 CBI vs Dilip Kumar Thakur the tape recorded conversation is proved by eliminating the possibility of erasing, the taperecord. It was also therein observed that since the tape records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The Court must be satisfied, beyond reasonable doubt that the record has not been tampered with.
95. In the case of R.M. Malkani (supra), Supreme Court laid down the essential conditions which, if fulfilled or satisfied, would make a taperecorded statement admissible otherwise not; and observed thus :
"Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record."(Emphasis supplied)
96. In the case of R.M Malkani (supra), it was also held that the telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to the imperiled by permitting the police to proceed by unlawful or irregular methods.
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 62/78 CBI vs Dilip Kumar Thakur
97. In the case of Mahabir Prasad Verma (supra), it was held that tape recorded conversations can only be relied upon as corroborated evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon.
98. In Ram Singh (supra) the Supreme Court has observed that:
"A tape recorded statement is admissible in evidence subject to the following conditions:
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.
(4) The tape recorded statement must be relevant.
(5) The recorded cassette must be sealed and must be kept in safe of official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances."
99. The conditions laid for admissibility of tape recorded RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 63/78 CBI vs Dilip Kumar Thakur statement in evidence in the cases of Ram Singh (supra) and Mahabir Prasad Verma (supra), found approval of the Supreme Court in the case Nilesh Dinkar Paradkar (supra).
100. It is to be seen, whether the tape recorded conversations in Digital Voice Recorders (DVR) Ex PW13/G (earlier Ex Q1); Ex PW13/T (earlier Ex Q2) and MP3 player Ex PW14/A5 (earlier Ex Q3) were properly recorded, sealed, preserved, kept, not tampered with at any stage and its accuracy has been proved by the maker of the record by satisfactory evidence, direct or circumstantial.
101. Report Ex PW20/A of Forensic Expert PW20 inter alia embodies in description of digital recorder Samsung make Model No. SVR S820 marked Ex Q1 containing four folders marked 'A', 'B', 'C' and 'D' whereas folder 'A' contained five audio files of duration of 42 seconds, 37 seconds, 35 seconds, 1 minute 22 seconds and 03 seconds respectively whereas folders namely 'B', 'C' and 'D' did not contain any audio files. Aforesaid DVR, earlier marked Ex Q1 was marked as Ex PW13/G (also Ex PW14/B1) in the course of prosecution evidence and is supposed to contain the conversations of PW14 and accused of date 26/03/2008 in the course of verification and of date 27/03/2008 in the course of pretrap proceedings. As per PW13, said DVR Ex PW13/G was played on 26/03/2008 and ensured that there was no voice/ material in it RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 64/78 CBI vs Dilip Kumar Thakur subsequent to which PW14 made a call from her mobile phone to mobile phone of accused but phone was not picked up from other side. Subsequently PW14 made another call from her mobile phone to mobile phone of accused but yet the phone was not picked up from the other side. As per PW13, for the third time PW14 made a telephone call and it was responded from the other side and there was conversation between PW14 and accused. As per PW13, after the conversation was heard and recorded, thereafter the cassette was played before all of them and they heard the recorded conversation between PW14 and accused after which the cassette was sealed in an envelope. Such cassette has not been shown the light of the day nor has been filed with the chargesheet nor produced in evidence in Court nor on this count PW13 was cross examined by Ld PP for CBI nor any facts were elicited from PW13 on this count by Ld. PP for CBI. Forensic Report Ex PW20/A is bereft of averments in respect of the afore elicited three folders marked 'B', 'C', and 'D' excepting the fact that they did not contain any audio files. It is not the content of the report Ex PW20/A that these folders 'B', 'C' and 'D' could have automatically come into existence at any moment of time or it contained any system files or as to how and when they were so generated. Prosecution accordingly cannot take shelter behind the ratio decidendi of case of Navjot Sandhu (supra) since there is no material on record to explain existence of afore elicited folders 'B', 'C' and 'D' in DVR Ex PW13/G (earlier Ex Q1) since it was duly checked and found not containing any prerecorded material when it was used on 26/03/2008 RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 65/78 CBI vs Dilip Kumar Thakur in the recording of conversation.
102. On 26/03/2008 after use DVR Ex PW13/G (earlier Ex Q1) was sealed, in terms of presented case of prosecution and testimony of PW15. Same DVR Ex PW13/G (earlier Ex Q1) was again used on 27/03/2008 in the course of pretrap proceedings. Excepting for PW15, no other examined prosecution witnesses testified of the fact of de sealing of parcel containing DVR Ex PW13/G (earlier Ex Q1) on 27/03/2008 in pretrap proceedings and then its use in the pretrap proceedings. For recorded conversations in the pretrap proceedings on 27/03/2008, DVR Ex PW13/G (earlier Ex Q1) is supposed to contain one audio file of conversation amongst PW14 and accused. Similarly said DVR Ex PW13/G (earlier Ex Q1) is supposed to contain one audio file in respect of conversation of PW14 and accused on 26/03/2008. Instead of two audio files, DVR Ex PW13/G (earlier Ex Q1) was found containing six audio files/tracks in the course of its display on 03/06/2014 in the course of final arguments. Per contra, Report Ex PW20/A finds mention of five tracks/audio files in DVR Ex Q1, later exhibited as Ex PW13/G. Even in track 1 besides ringing bell of telephone there was some dialogue in last, not fully audible but for that there is no explanation either in report Ex PW20/A except it to be of duration 42 seconds nor any explanation is coming forth in testimonies of prosecution witnesses having used said DVR. PW13, PW14 do not whisper of the DVR, which was used in pretrap proceedings on RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 66/78 CBI vs Dilip Kumar Thakur 27/03/2008, to have been taken out from any sealed parcel/envelope.
103. DVR Ex PW13/T (previously Ex Q2) is supposed to contain the recordings of conversations of PW14, accused as well as of Sh Atul Vashisht in trap proceedings. PW14 was under directions of TLO PW15 to start the recordings of conversation in DVR entrusted to her after meeting with the accused and the said DVR was in the wearing apparel of PW14. TLO PW15 had seized the aforesaid DVR Ex PW13/T (previously Ex Q2) after washes later to apprehension of accused from car of complainant then situated outside the flat of accused in Vasant Kunj. In the course of his cross examination, PW15 TLO testified that when he heard the recordings in DVR Ex PW13/T (previously Ex Q2) at the flat of accused, its duration was around half an hour. Report Ex PW20/A of Forensic Expert PW20 finds mention inter alia of DVR Ex PW13/T (previously Ex Q2) containing four folders marked 'A', 'B', 'C' and 'D' out of which the folders 'B', 'C' and 'D' were blank while folder marked 'A' contained two audio files namely 'File number 1' and 'File number 2' which two audio files contained recordings of duration 48 minutes 37 seconds and 03 hours 02 minutes and 42 seconds respectively. In the course of display of recordings in DVR Ex PW13/T (previously Ex Q2), on 04/06/2014 in the course of final arguments it was observed that said DVR contained two tracks/audio files as track 01 and track 02 of duration aforesaid mentioned in report Ex PW20/A. The track 01, aforesaid purportedly RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 67/78 CBI vs Dilip Kumar Thakur contained the recorded conversations during trap proceedings but its initial recordings of about 22 minutes 11 seconds was not transcribed in transcript Ex PW14/A3, for the reasons best known to the transcriber/officers of investigating agency responsible of transcribing and supervising said facet. Even TLO PW15, IO PW19, other examined prosecution witnesses and the prosecution failed to furnish any cogent reason for coming into existence of recordings of duration 03 hours 02 minutes 42 seconds in aforesaid track 02 in folder Mark 'A' of DVR Ex PW13/T (previously Ex Q2). In the course of such display on 04/06/2014, the programmer also stated that the properties of the audio files in the said DVR of track 01 and track 02 cannot be checked even with the aid of computer. Report Ex PW20/A also finds mention that the forwarding authority did not provide transcription of the recorded conversation of aforesaid track 02 of duration 03 hours 02 minutes and 42 seconds, so the same was not considered for voice spectographic analysis. Around 8.30 pm PW14 met accused on 27/03/2008. DVR Ex PW13/T (previously Ex Q2) was switched on by PW14 only around that time. Accused was arrested at about 11.30 pm on 27/03/2008 at his residence, as per deposition of PW15. As per PW15 and Recovery Memo Ex PW13/U (D6), before such arrest of accused and after washes were sealed, the recorded conversations in DVR Ex PW13/T (previously Ex Q2) were played in the presence of witnesses and said DVR was seized and sealed with the aid of cloth wrapper Ex PW13/S under the signatures of witnesses and PW15. PW15 deposed that when he heard RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 68/78 CBI vs Dilip Kumar Thakur the recordings in DVR Ex PW13/T, its duration was around half an hour. In terms thereof the coming into existence of track/audio file 02 of total duration 03 hours 02 minutes 42 seconds in DVR Ex PW13/T (previously Ex Q2) was per se improbable in case such DVR was sealed, as alleged by TLO PW15 and other prosecution witnesses. Existence of the track/audio file 02, aforesaid per se reflects all reasonable probability/possibility of tampering of DVR Ex PW13/T (previously Ex Q2) on face of record.
104. Report Ex PW20/A also embodied inter alia the fact that MP3 digital player of Samsung make, marked Q3, later on marked as Ex PW14/A5 in prosecution evidence, had one folder namely 'Record' which subsequently had one sub folder 'Voice' and '2 songs files'; said sub folder 'Voice' had audio files namely 'REC001' and 'REC002'; said file namely 'REC001' contained recorded conversation of duration 55 minutes 35 seconds whereas file 'REC002' did not contain any recorded conversation, so was not considered for voice examination. When Ex PW14/A5 (earlier Ex Q3) was displayed in the course of final arguments on 05/06/2014 it was observed that the sub folder namely 'Record' contained four songs files and not two songs files as is mentioned in report Ex PW20/A. It was also observed that the file 'REC001' was of size 12.7 MB having properties including date of creation January 01 2005 and time 12:00:30 AM and modified on January 01 2005 at time 01:01:42 AM. The file namely 'REC002' was of size 0 bytes having RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 69/78 CBI vs Dilip Kumar Thakur properties including date of creation January 01 2005 and time 12:00:30 AM and modified on January 01 2005 at time 12:00:32 AM. It is not the case of PW14 that the recordings in aforesaid file 'REC001' were so recorded on the date and the time specified in afore elicited properties of said folder. The said MP3 player was retained by PW14 herself in unsealed manner, not submitted to any investigating agency before registration of this case. As per forwarding letter Ex PW15/DA, dated 29/04/2008 of SP Sh Ramnish to Director CFSL, CBI, New Delhi, said MP3 digital player Q3, later exhibited as Ex PW14/A5 was seized on 29/03/2008 from complainant PW14. Neither any seizure memo of Ex PW14/A5 was placed on record nor proved to depict and/or prove in what condition said MP3 player was seized. Date, time and venue of recordings in Ex PW14/A5 were neither elicited nor proved. Afore elicited facts bring into fore every reasonable probability/possibility of tampering of the recordings in file 'REC001' in MP3 player Ex PW14/A5 (earlier Ex Q3).
105. PW19 testified that from recorded conversation in DVR Ex PW13/G (earlier Ex Q1); Ex PW13/T (earlier Ex Q2) and Ex PW14/A 5 (earlier Ex Q3); the transcripts Ex PW14/A1 (D28), Ex PW14/A2 (part of D29), Ex PW14/A3 (part of D29) and Ex PW14/A6 (D30) were prepared by him (PW19) and SI Deepak Purohit but for that neither any independent witnesses of proceedings nor PW14 assisted them and PW19 himself identified voices of speakers from recorded conversations RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 70/78 CBI vs Dilip Kumar Thakur and so mentioned the initials of those speakers in the transcripts. It is beyond comprehension as to how PW19 waived any magic wand and identified (1) voices of speakers not known to him before and (2) voices of speakers who were not heard by him before, in recorded form or otherwise. Voices attributed to speakers in transcripts by PW19 have been parrot like reiterated to be of the same speakers in the forensic report Ex PW20/A of PW20, the forensic expert, who candidly admitted that his laboratory was under administrative control of CBI. Reasonable probability existed of doctoring of report Ex PW20/A, as to what suited the case of investigating agency. In course of deposition, PW13 elicited of existence of cassette in respect of recorded conversations of verification proceedings of date 26/03/2008 and sealing of such cassette. Said cassette was neither relied upon nor produced nor proved in Court by prosecution. DVR Ex PW13/G was used on 26/03/2008 as well as on 27/03/2008. After use on 26/03/2008 the DVR Ex PW13/G was alleged to be sealed in the presence of witnesses and PW14. None amongst PW13 and PW14 testified of the fact that DVR Ex PW13/G before use on 27/03/2008 was produced in a sealed condition and then opened. Coming into existence of track/audio file 02 of total duration 03 hours 02 minutes 42 seconds in DVR Ex PW13/T (previously Ex Q2) was per se improbable in case such DVR was sealed, as alleged by TLO PW15 and other prosecution witnesses, as has been discussed in detail herein above.
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 71/78 CBI vs Dilip Kumar Thakur
106. Accordingly, in view of the law laid in the case of Ram Singh (supra), the tape recorded statements in Digital Voice Recorders (DVR) Ex PW13/G (earlier Ex Q1); Ex PW13/T (previously Ex Q2) and MP3 player Ex PW14/A5 (earlier Ex Q3) are not admissible in evidence since firstly, their accuracy has not been proved by satisfactory evidence, direct or circumstantial; secondly, reasonable probability/ possibility of tampering with or erasure of part of tape recorded statements has not been totally excluded but instead is apparent and proved on the face of record, as elicited in detail hereinabove. The prosecution cannot take any benefit from the corroborative evidence of tape recorded conversations accordingly.
107. Chapter 17 of Crime Manual2005 of CBI contains the Directives of Investigation of Cases by Special Police Establishment formulated pursuant to instructions issued by the Ministry of Home Affairs. Inter alia amongst other aforesaid directives was the direction contained in Rule 17.35 which is quoted here as under:
"17.35 In trap cases, it is necessary that some responsible and impartial person or persons should have witnessed the transaction and/or overhear the conversation of the suspect public servant. All public servants particularly Gazetted Officers, should assist and witness a trap whenever they are approached by the Special Police Establishment. The Head of Department/Office will, when requested by CBI/SPE, detail a suitable person/persons to be present at the scene of the trap. Refusal to assist or witness a trap on the part of a public servant will be regarded as a breach of duty and disciplinary action may be taken against him."
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 72/78 CBI vs Dilip Kumar Thakur
108. In the case in hand initial directions of TLO PW15 detailed in Ex PW13/H (D4) inter alia included directions to independent witness Sh Sanjeev Arora to act as a shadow witness and remain close to the complainant to over hear the conversations and see the transaction of bribe amount which may take place between the complainant and accused. Despite mention of such direction in elicited document Ex PW13/H (D4), neither TLO PW15 nor any other trap team member nor any supervisory officer of TLO PW15 even permitted Sh Sanjeev Arora to accompany PW14 in her car in the course of trap and it was in the car of PW14 the alleged transaction of bribe took place. Accused happened to be an Inspector of CBI. To trap accused, afore elicited directive of investigation for a trap case by CBI in Rule 17.35 was not complied but instead put to winds and no document of prosecution finds mention of any reason whatsoever for non compliance of Rule 17.35 aforesaid as to for what reasons no responsible or impartial person was arranged to witness the transaction and/or over hear the conversation of the suspect/accused. It is not the case that even arranged independent witness Sh Sanjeev Arora in any manner refused to proceed to witness the transaction and/or over hear the conversation of the suspect/accused. Fairness of investigating agency accordingly has come under the cloud of doubt. Dimensions are added to shadow of doubt when even Sh Atul Vashisht who infact shadowed the complainant PW14 in her car at the relevant time of alleged transaction of bribe and allegedly over heard the conversation inter se PW14 and accused was also not examined but RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 73/78 CBI vs Dilip Kumar Thakur dropped by the prosecution and his testimony was with held. Accused was instrumental in getting nine criminal cases registered against Sh Atul Vashisht and even on that count it could be presumed that Sh Atul Vashisht nursed animus against accused. Lone testimony of PW14 remains incorporating material facts/evidence qua alleged demand as well as alleged acceptance of bribe by accused, which are not corroborated by any other witness of prosecution including PW2, PW4, PW5, PW13, PW15, PW17 and PW19. Testimony of PW14 is suffering from numerous additions, material contradictions, severe infirmities, comprehensive improvements, flabbergasting exaggerations qua demand and acceptance of bribe, made vivid and elicited in detail in preceding paras of this judgment. The premier investigating agency i.e., CBI had itself declared PW14 as 'Undesirable Contact Man' i.e., UCM i.e., person of suspicious charactor describing her role in Ex PW19/DC that for her work, she visited government officials, used to influence and entice them, specially the male public servants and if they do not fall in her line, she takes different recourse to sideline the concerned officials and also Ex PW19/DC described the mode of PW14 for corrupting officers by offering bribe and seducing. The recorded conversations relied upon by the prosecution embody inter alia offer of PW14 to accused for consumption of alcohol, intimacy between PW14 and accused. PW14 coaxed and cajoled accused to receive the bribe money. On the other hand, accused treated PW14 as his source and had developed such source for own official purposes being Inspector of CBI.
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 74/78 CBI vs Dilip Kumar Thakur It so appears from evidence on record that lust prevailed upon accused who developed intimacy with PW14 per contra to norms and crossed official limits in developing source for official purposes and paid heavy price by getting dismissed from service. But fact remains that evidence clearly points to the fact that accused never demanded nor accepted the bribe sum. Elicited sequence of events project every probability of tainted GC notes to have been thrust upon the accused in the present set of facts and circumstances. From the evidence of PW14, it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely different from the context and the background against which they are made. PW14 accordingly can be classified as a wholly unreliable witness as categorized in the case Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 since elicited severe infirmities, inherent improbabilities, material contradictions, numerous additions, comprehensive improvements and flabbergasting exaggerations in her testimony go to the root of the matter to check and shake the basic version of the prosecution case and such testimony of PW14 cannot be made basis of conviction of accused.
109. DW4, Incharge SP in Special Unit of CBI as well as DW5, Incharge Reception in CBI Headquarter in ground floor testified that the Visitor Register of Special Unit of CBI, Visitor Register of Reception RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 75/78 CBI vs Dilip Kumar Thakur of CBI, Head Office Building respectively contain no entry of visit of PW14 on 26/03/2008 as as well as on 27/03/2008. DW5 testified that entry bearing serial number 37 at page no. 340 of Visitor Register of Reception of CBI, Head Office building contained entry of official visit of PW14 to TLO PW15 on 28/03/2008 at 3.10 pm and had there been any visit of PW14 on 26/03/2008 and 27/03/2008 then entry for such visit should have been there in the aforesaid Visitor Register as whenever a visitor enters the gate of Reception of CBI, whether to go to office of ACI or any other unit, then the entry of such visitor should be in such Visitor Register of Head Office of CBI. Despite directions and summons, DW6 SP ACI, CBI did not produce Daily Diary / General Diary / Roznamcha Register of period of March 2008, used by ACUI of CBI, New Delhi. For that, plea taken by DW6 was that such register was not traceable and the search for said register was started on 09/04/2014 after receipt of orders of this Court in this case while from November 2011 till 09/04/2014 no pains were taken by DW6, Supervisory Officer of Record Room of ACUI of CBI, New Delhi to search said register and no loss of such register was brought to book. Aforesaid Daily Diary / General Diary / Roznamcha Register of period of March 2008 used by ACUI of CBI, New Delhi was in the control/custody of CBI officials whose supervisory officer was DW6. Since aforesaid Visitor Register was withheld by officers of premier investigating agency, there is no option but to presume in accordance with Illustration (g) of Section 114 of The Evidence Act, 1872 that the withheld register, aforesaid, if RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 76/78 CBI vs Dilip Kumar Thakur brought on record by investigating agency/prosecution, which could have been brought on record by the investigating agency/prosecution, would have been unfavourable to investigating agency/prosecution and instead favourable to defence on relevant fact of no visit of PW14 in ACUI of CBI, New Delhi on 26/03/2008 and 27/03/2008. It further strengthens shadow of doubt casted over the presented case of prosecution. The substratum of the prosecution case has several holes which cannot be plugged. No new story can be reconstructed by this Court. The elicited intrinsic circumstances speak volumes against the prosecution case and raise enormous amount of suspicion in mind regarding the complicity of the accused in the commission of alleged offences. The elicited severe infirmities, inherent improbabilities, material contradictions, flabbergasting exaggerations, significant improvements/additions in testimony of PW14 render the prosecution version unacceptable regarding the complicity of accused in offences charged. The pieces of incriminating evidence and the evidence of material prosecution witnesses are not reliable, evidence not clinching nor suffice to reach no other conclusion but only of guilt of accused.
110. Accordingly, I am of the considered opinion that prosecution has failed to prove its case against accused Dilip Kumar Thakur beyond reasonable doubt. Accused is given benefit of doubt and is accordingly acquitted for the offences charged. His bail bond is cancelled. Surety is discharged.
RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 77/78 CBI vs Dilip Kumar Thakur
111. Rs. 2 lacs in the form of 105 GC notes of denomination of Rs 1000/ collectively Ex PW13/J and 190 GC notes of denomination of Rs 500/ collectively Ex PW13/K have been claimed solely by PW14. It is directed that after expiry of period of appeal, if no appeal is preferred or in case if appeal is preferred, then subject to decision of the appeal the aforesaid sum of Rs. 2 lacs be given to PW14.
112. A copy of judgment be given to the Central Bureau of Investigation.
113. Ahlmad is directed to page and bookmark the file so as to enable digitization of the entire record.
114. File be consigned to record room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 30/10/2014 Patiala House Court, New Delhi. Deepika RC No. ACI/2008/A0002/CBI/ACUI/NEW DELHI CC No. 31/12 78/78