Delhi District Court
Cc No. 21/2016; Cbi vs . Daya Ram Page No. 1 Of 113 on 21 October, 2019
IN THE COURT OF MS. SANTOSH SNEHI MANN,
SPECIAL JUDGE (P. C. ACT) (CBI08),
ROUSE AVENUE DISTRICT COURT, NEW DELHI
CC No. 21/2016
CIS No. 163/2019
RC No. RC DAI 2014 A 0039
Central Bureau of Investigation
Versus
Daya Ram
S/o Sh. Vish Ram
R/o RZF734, RajnagarII, Palam Colony,
New Delhi.
Permanent address:
Village Boojat, Tehsil Sikrai, PS Sikandra,
District Dausa, (Rajasthan)
New Address:
RZF839, Top Floor, RajnagarII,
Palam, New Delhi.
Date of filing of chargesheet : 31.03.2015
Date of conclusion of final arguments : 30.09.2019
Date of announcement of judgment : 18.10.2019
JUDGMENT :
1. Accused Daya Ram has been chargesheeted to face the trial for committing the offences under Section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 (P. C. Act).
CC No. 21/2016; CBI Vs. Daya Ram Page No. 1 of 113Brief facts:
2. A case was registered as PS Chanakya Puri vide FIR No.82/14 on the complaint of the American Embassy about preparation and use of fake documents, which was being investigated by accused SI Daya Ram. Complainant Harbans Singh was an accused in the said case. Allegedly, accused demanded Rs. 4 lacs from the complaint as bribe for exonerating him in the said case. Accused allegedly met the complainant couple of times at Chandigarh and demanded bribe.
3. On 27.11.2014, complainant Harbans Singh filed complaint against accused SI Daya Ram to SP, CBI, ACB, New Delhi. Genuineness of the complaint was verified and in the verification proceedings conversation between the complainant and accused was recorded, which confirmed the demand of bribe. Consequently, FIR was registered.
4. In the trap proceedings conducted on 27.11.2014, in the presence of independent witnesses, accused SI Daya Ram was allegedly caught red handed while demanding and accepting Rs. 50,000/ as part payment of bribe/illegal gratification from the complainant.
CC No. 21/2016; CBI Vs. Daya Ram Page No. 2 of 113Phenolphthalein powder treated GC notes used as bribe money were seized and hand washes of the accused were taken. Conversation between the complainant and accused at the time of transaction of bribe was recorded. Specimen voice of accused SI Daya Ram was taken after his apprehension.
5. Investigation revealed that accused SI Daya Ram during investigation of the case FIR No. 82/2014, PS Chanakya Puri, had issued notices to the complainant.
6. Handwashes of the accused SI Daya Ram were sent to the chemical division of Central Forensic Laboratory and the expert gave positive report about presence of phenolphthalein powder in those washes. Specimen voice and the questioned voice of the accused in the conversation recorded during verification and the trap proceedings was sent to CFSL for Voice identification. Voice expert gave report that the specimen voice of the accused SI Daya Ram matched with the questioned voice in the recorded conversations.
Charge:
7. Vide order dated 30.09.2015, Ld. Predecessor framed charge against accused SI Daya Ram for the offences u/s 7 and Sec. 13(2) read with Sec. 13(1)(d) of the P.C. CC No. 21/2016; CBI Vs. Daya Ram Page No. 3 of 113 Act. Accused pleaded not guilty and claimed trial. CBI was then directed to lead evidence.
Prosecution evidence:
8. CBI has examined 17 witnesses in all. 02 witnesses have been examined as PW10 (Mohan Lal and HC Mukhraj Singh). In order to avoid confusion and for clarity, witness HC Mukhraj Singh has been given the number PW10A vide proceedings dated 07.02.2019.
9. PW1 Sh. Vijay Singh, DCP, District North West, Ashok Vihar, New Delhi granted sanction to prosecute the accused SI Daya Ram vide his order Ex. PW1/A.
10. PW2 Inspector Rajesh Kumar, ATO, PS Chanakya Puri, New Delhi was entrusted with the investigation of case FIR No. 82/14, PS Chanakya Puri on 29.11.2014, which was previously investigated by accused SI Daya Ram. Vide ProductioncumSeizure memo dated 12.12.2014, Ex. PW2/A (D15), PW2 had handed over to CBI, certified copies of the case diaries from 23.04.2014 to 05.12.2014, Ex. PW2/B [D16, pages 01 to 25 (in reverse order)].
11. PW3 Sh. Pradip Singh, Alternate Nodal Officer, Vodafone Mobile Services deposed that vide his letter dated 20.12.2014, Ex. PW3/A, he had forwarded to CC No. 21/2016; CBI Vs. Daya Ram Page No. 4 of 113 Sh. Atul Hajela, Dy. S.P, CBI, New Delhi, certified copy of Customer Application Form of mobile no. 9654660038, in the name of Sh. Daya Ram, Ex. PW 3/B (D21, pages 4 & 5) and certified copy of the Call Data Record dated 27.11.2014 of this mobile number, Ex. PW3/C along with his certificate u/s 65B of the Indian Evidence Act, Ex. PW3/D. Vide his letter dated 20.12.2014 Ex. PW3/E (D22, page 1) he had forwarded to Sh. Atul Hajela, Dy. S.P., CBI, New Delhi, the certified copy of the Customer Application Form of mobile no. 8556090565 Ex. PW3/F (D22, pages 4 &
5) and certified copy of the Call Data Record dated 27.11.2014 of this mobile number, Ex. PW3/G [D22, page 3 (front & backside)] along with his certificate u/s 65B (4)(c) of the Indian Evidence Act, Ex. PW3/H (D22, page 2).
12. PW4 Sh. Harbans Singh is the complainant and a prosecution witness of verification and trap proceedings. However, he did not depose on the line of prosecution story on some aspects, so has been crossexamined by the Sr. PP for CBI.
13. PW5 Sh. Anurag Anand, Clerk, Corporation Bank, Lodhi Complex Branch, New Delhi - 110003 is an CC No. 21/2016; CBI Vs. Daya Ram Page No. 5 of 113 independent witness, who had joined investigation on 27.01.2015 at CBI Headquarter at CGO Complex. He is a witness of voice identification memo dated 27.01.2015, Ex. PW5/A and voice identificationcumtranscription memo, Ex. PW5/B.
14. PW6 Sh. Amit Jana @ Raja testified that he is in the airlines ticketing business. About 2 - 2 ½ years ago, he had gone to U.S. Embassy at Chanakya Puri along with Sapinder Singh and one Bisht. Sapinder Singh was the client of Mr. Bisht, who had applied for U.S. Visa. Sapinder Singh could not answer the questions for VISA, so the authorities made a complaint at PS Chanakya Puri, on the basis of which FIR No. 82/2014 was registered against him, Sapinder Singh, Bisht and Harbans Singh (PW4). PW6 deposed that accused Daya Ram was the I.O of the said case, who had arrested him and Sapinder Singh from U.S. Embassy.
15. PW7 Banay Singh, Inspector of Police at Vice President House, Security Unit, New Delhi was SHO at PS Chanakya Puri from 28.02.2014 to 20.06.2016, who had handed over to CBI, attested copies of various documents pertaining to case FIR No. 82/2014 registered at PS Chanakya Puri including complaint of CC No. 21/2016; CBI Vs. Daya Ram Page No. 6 of 113 American Embassy dated 23.04.2014, Ex. PW7/B, FIR Ex. PW7/E, case diaries Ex. PW2/B, approval/departure DD entries Ex. PW7/F and permission to accused to travel to Punjab Ex. PW7/H. PW7 deposed that during investigation of the said case, accused Daya Ram had issued notices u/s 41A Cr.P.C to Harbans Singh, vide Ex. PW4/M, Ex. PW2/C & Ex. PW 4/L and identified signatures of accused Daya Ram on these notices at point A. PW7 testified that the notice dated 20.07.2014, Ex. PW2/C is not mentioned in the case diary, Ex. PW2/B and that as per the case diaries, Ex. PW2/B, accused Daya Ram had not obtained any search warrant to conduct search in the premises of Harbans Singh.
16. PW7 deposed that he was called by CBI to its office, when a CD was played on the laptop in his presence, transcription of which was prepared by CBI. Witness deposed that one voice in the recorded conversation appeared to him as that of accused SI Daya Ram. PW7 identified his signatures on the voice identification memo dated 27.01.2015, Ex. PW5/A (D26) with respect to the identification of voice of accused in the recorded conversation and voice identificationcum CC No. 21/2016; CBI Vs. Daya Ram Page No. 7 of 113 transcription memo, Ex. PW5/B. PW7 identified the voice of accused Daya Ram in the memory cards Q1 (Ex. PW4/G) and Q2 (Ex. PW7/M) in the Court, during his deposition.
17. PW8 Servendra Singh was SubInspector in CBI when on 27.11.2014 he was called by S.P., CBI in his chamber and was told that Harbans Singh (PW4) had come to lodge a complaint against SI Daya Ram of Delhi Police PS Chanakya Puri. PW8 recorded the complaint, Ex. PW4/A (D1), which was marked to him for verification by S.P. Sh. Nishith Mishra. In verification proceedings, complainant made a call to the accused in the presence of an independent witness Mohan Lal which was recorded in a brand new micro S.D. card, Q1. Conversation confirmed the demand of bribe by the accused. The memory card, Q1 was put in an envelope & sealed, on which PW8 had signed along with complainant Harbans Singh and witness Mohan Lal. PW8 submitted the verification report dated 27.11.2014, Ex. PW4/B (D2) to the SP on which witness Mohan Lal and complainant Harbans Singh had signed. On the basis of verification report, FIR was registered.
CC No. 21/2016; CBI Vs. Daya Ram Page No. 8 of 11318. PW8 further deposed that he was a member of the trap team headed by Inspector Anand Swarup (Trap Laying Officer) and has deposed on the line of the prosecution story about the trap proceedings and identified his signatures on the Handing Over memorandum dated 27.11.2014, Ex. PW4/C (D4, 05 sheets), Recovery Memo dated 27.11.2014 Ex. PW4/D (D5, 6 sheets) and the rough site plan, Ex. PW8/A. Witness identified his signatures on the envelope, Ex. PW4/F containing SanDisc 4GB memory card marked Q1, Ex. PW4/H.
19. PW9 Sh. V.B. Ramteke, Senior Scientific Officer GradeI (Chemistry), CFSL, New Delhi had examined the contents of the sealed bottles marked as Ex. LHW & Ex. RHW, containing handwashes of the accused Daya Ram and gave report, Ex. PW9/A (D24) that they gave positive test for presence of phenolphthalein. He identified his signatures on the sealed bottles containing handwashes of the accused, Ex. PW9/C (Ex. LHW) & Ex. PW9/D (Ex. RHW). He also identified his initials on the cloth wrappers Ex. PW9/F & Ex. PW9/G of the sealed bottles containing handwashes.
20. PW10 Sh. Mohan Lal, Inspector in Service Tax Department, NCT of Delhi, III Commissionerate, had CC No. 21/2016; CBI Vs. Daya Ram Page No. 9 of 113 joined the verification and trap proceedings, as an independent witness on 27.11.2014. He has deposed on the line of PW8 about verification proceedings and identified his signature on the verification memo Ex. PW4/B (D2). He deposed on the line of prosecution story about trap proceedings and identified his signatures on the Handing Over memo dated 27.11.2014, Ex. PW4/C (D4), Recovery memo dated 27.11.2014, Ex. PW4/D (D5), Arrest memo of accused Daya Ram, Ex. PW10/A (D6) and site map, Ex. PW 10/B. He deposed that after the trap proceedings, specimen voice of accused was recorded in a DVR at CBI office, in which his opening and closing introductory voice was recorded along with the other witness Santosh Kumar.
21. PW10 further deposed that on 09.12.2014, he was called at CBI office, when a CD was played in which he identified his voice and complainant identified his own voice and voice of the accused. Transcription of the recording was prepared and he identified his signatures on the voice identificationcumtranscription memo, Ex. PW4/J. He also identified his signatures on the brown envelopes and memory card covers containing CC No. 21/2016; CBI Vs. Daya Ram Page No. 10 of 113 micro SD cards used in the proceedings [Q1 (Ex. PW 4/H), Q2 (Ex. PW7/M) & S1 (Ex. P2)]. He identified his signatures on the envelopes containing DVR (Ex. P
3) and currency notes [Ex. P4 (colly)] used in the trap proceedings. He produced the brass CBI seal, Ex. P1 in the Court, which was handed over to him after trap proceedings. PW10 identified his signatures on the bottles containing handwashes of the accused, [Ex. PW 9/C (Exhibit LHW) & Ex. PW9/D (Exhibit RHW)] and on the cloth pullandas used for sealing these bottles, bearing seals of CBI, Ex. PW9/F (Exhibit LHW) & Ex. PW9/G (Exhibit RHW).
22. PW 10A HC Mukhraj Singh, No. 327/ND, DCP Office, Parliament Street, New Delhi was posted as Head Constable at PS Chanakya Puri at the relevant time, who handed over to CBI, the attested copy of FIR No. 82/2014 dated 23.04.2014, PS Chanakya Puri, Ex. PW 7/E (D20, pages 02 to 06) and the attested copies of the arrival/departure DD entries dated 04.07.2014, 08.07.2014 and 12.11.2014, collectively Ex. PW7/F (colly)(D20, pages 07 to 10), vide productioncum seizure memo dated 24.12.2014, Ex. PW7/D (D20 page1).
CC No. 21/2016; CBI Vs. Daya Ram Page No. 11 of 113
23. PW11 Sh. Santosh Kumar, Inspector, Service Tax Department had joined the CBI team in trap proceedings on 27.11.2014 as an independent witness. He has deposed on the lines of PW10 Sh. Mohan Lal and identified his signatures on various documents including the Handing Over Memo dated 27.11.2014, Ex. PW4/C (D4) and Recovery Memo dated 27.11.2014, Ex. PW 4/D (D5). PW11 deposed that he was again called in the CBI office on 09.12.2014 when in the presence of witness Mohan Lal (PW10) and complainant Harbans Singh (PW4), the recorded conversation was played which contained his voice, voice of witness Mohan Lal (PW10) and also the voice of accused Daya Ram. He identified his signatures on the voice identificationcum transcription memo dated 09.12.2014, Ex. PW4/J (D13). He also identified his signatures on the brown envelopes and memory card covers containing micro SD cards used in the proceedings [Q2 (Ex. PW7/M) & S1 (Ex. P2)]. He identified his signatures on the envelopes containing DVR (Ex. P3) and currency notes [Ex. P4 (colly)] used in the trap. PW11 identified his signatures on the bottles containing handwashes of the accused, [Ex. PW9/C (Exhibit LHW) & Ex. PW9/D (Exhibit CC No. 21/2016; CBI Vs. Daya Ram Page No. 12 of 113 RHW)] and on the cloth pullandas used for sealing these bottles, bearing seals of CBI, Ex. PW9/F (Exhibit LHW) & Ex. PW9/G (Exhibit RHW).
24. PW12 Sh. Atul Hajela, Deputy Superintendent of Police, CBI, ACB, New Delhi was the Investigating Officer of this case from 01.12.2014 to 04.12.2014, who had sent the exhibits - Q1, Q2, S1 & DVR to CFSL for expert opinion and handwashes (LHW & RHW) to CFSL for chemical examination vide letters Ex. PW12/A and Ex. PW9/DA respectively. He had also sent request to the Nodal Officer, Vodafone vide his letters, Ex. PW12/B (D8) & Ex. PW12/C (D09) to provide CAF and CDRs of mobile phones used by accused Daya Ram and the complainant during verification and trap proceedings on 27.11.2014.
25. PW13 Sh. Ajit Singh, Inspector, CBI, ACB, Lucknow, U.P was assigned investigation of this case in November, 2014, when he was SubInspector and so was not competent to investigate the offences under Prevention of Corruption Act without permission of the Court. On his application, permission was granted by the Court vide order, Ex. PW13/A (D29). During investigation he had collected the sealed CD mailer containing CD of CC No. 21/2016; CBI Vs. Daya Ram Page No. 13 of 113 the recorded conversation from CFSL in reference to the letter of Director, CFSL Ex. PW13/B (D12). In the presence of the complainant Harbans Singh (PW4) and 02 independent witnesses Mohan Lal (PW10) & Santosh Kumar (PW11), he had opened the sealed CD mailer and played the CD in the official laptop. He got identified the voice of accused Daya Ram from the recorded conversation by the complainant Harbans Singh in the presence of the independent witnesses (PW 10 & PW11) and also prepared the transcriptions of the recorded conversation vide voice identificationcum Transcription memo dated 09.12.2014, Ex. PW4/J (Colly.)(D13, 09 sheets).
26. PW13 deposed that during investigation he seized from the complainant Harbans Singh vide Productioncum Seizure memo dated 09.12.2014, Ex. PW4/K (D14, 04 sheets), the notices u/s 41(A) Cr.P.C (Ex. PW4/L, Ex. PW2/C & Ex. PW4/M), which were sent to the complainant by the accused Daya Ram. PW13 had also seized various documents pertaining to the case FIR No. 82/14, PS Chanakya Puri and investigation done by the accused. During investigation, PW13 had collected CAF and CDR of mobile phone numbers 8556090565 and CC No. 21/2016; CBI Vs. Daya Ram Page No. 14 of 113 9654660038.
27. PW13 testified that during investigation, he had collected the Chemical Examination Report, Ex. PW9/A (D24) from CFSL, in reference to a letter of Director, CFSL addressed to the S.P, CBI, Ex. PW9/B (D23). PW13 also got identified the voice of accused Daya Ram through his Supervisory Officer Sh. Banay Singh, SHO PS Chanakya Puri (PW7) in the presence of independent witness Sh. Anurag Anand (PW5) vide voice identification memo, Ex. PW5/A (D26, pages 01 & 02).
28. PW14 Sh. Gajanand Bairwa, Additional SP, CBI, Jaipur, Rajasthan, was posted in CBI, ACB, New Delhi when on 20.03.2015 investigation of this case was transferred to him from SI Ajit Singh (PW13). He had taken steps for grant of sanction for prosecution of the accused SI Daya Ram from the DCP.
29. PW15 Sh. Deepak Kumar Tanwar, Principal Scientific Officer (Phy.), CFSL, CBI, New Delhi had examined the 04 sealed parcels, marked Q1, Q2 & S1 containing micro SD cards and parcel marked "DVR" containing DVR, all received from CBI for voice identification and gave his report, Ex. PW15/D (09 CC No. 21/2016; CBI Vs. Daya Ram Page No. 15 of 113 pages). He identified his signatures on the sealed envelopes, (Ex. PW10/C, Ex. PW7/J, Ex. PW10/F, Ex. PW10/H) containing the exhibits and identified the micro SD cards Ex. PW4/H (Q1), Ex. PW7/M (Q2), Ex. P2 (S1) and the DVR (Ex. P3) examined by him.
30. PW16 Inspector Anand Sarup, CBI, ACB, New Delhi was assigned investigation of this case after registration of the FIR. He received the complaint, Ex. PW4/A (D01), verification report Ex. PW4/B (D02, 02 pages) and the copy of the FIR, Ex. PW16/A and arranged 02 independent witnesses Mohan Lal (PW10) and Santosh Kumar (PW11). He constituted a trap team including the complainant (PW4), both independent witnesses (PW10 & PW11) and CBI officials. The team assembled in the CBI office at 5.45 PM and was briefed about the purpose. Complaint and the FIR was shown to the independent witnesses. PW16 deposed that complainant produced Rs. 50,000/ in cash in the denomination of Rs. 500/ (20 GC notes) and Rs. 1000/ (40 GC notes) to be used as bribe money. Number of the currency notes were noted down in the Handing Over Memo and demonstration of reaction of phenolphthalein powder with Sodium Carbonate solution was given by CC No. 21/2016; CBI Vs. Daya Ram Page No. 16 of 113 the Inspector S.K. Khullar to the team members, in which witness Santosh Kumar (PW11) touched the phenolphthalein powder treated currency notes and then dip his fingers in the colorless solution of Sodium Carbonate, which turned pink. The pink solution was then thrown away.
31. PW16 further deposed that independent witness Santosh Kumar (PW11) conducted personal search of the complainant (PW4) to ensure that nothing incriminating was carried by him. Thereafter phenolphthalein powder treated currency notes were put in the right side pant pocket of the complainant by the witness Santosh Kumar. All the trap team members washed their hands. Independent witness Mohan Lal (PW10) was instructed to remain close to the complainant as a shadow witness, to overhear the conversation and to see the transaction between the complainant and the accused Daya Ram. Complainant and the shadow witness were also instructed to give signal by rubbing face with hands after the transaction of bribe. They were also told to give missed call on the mobile phone of PW16 after transaction of bribe.
32. PW16 testified that he received from SI Servendra Singh CC No. 21/2016; CBI Vs. Daya Ram Page No. 17 of 113 (PW8) a sealed envelope marked Q1, containing recorded conversation between accused Daya Ram and complainant during verification proceedings. He received the DVR from SI Servendra Singh which was used in the verification proceedings and the CBI brass seal from independent witness Mohan Lal (PW10). PW16 arranged a trap kit from CBI Malkhana. He also arranged a new memory card which was opened in the presence of team members and was then put in the DVR. After ensuring blankness of the memory card, introductory voice of both the independent witnesses (PW10 & PW11) were recorded in the memory card through DVR. The DVR along with newly inserted memory card containing introductory voices of the independent witnesses was given in the custody of SI Servendra Singh (PW8). A memo of the proceedings, Handing Over Memorandum, Ex. PW4/C (D04, 05 pages) was prepared by PW16 on which all the witnesses signed.
33. PW16 further deposed that trap team including the complainant (PW4) and both the independent witnesses (PW10 & PW11) left CBI office at about 7.30 PM in 02 official vehicles and 01 car of the complainant for Moti CC No. 21/2016; CBI Vs. Daya Ram Page No. 18 of 113 Bagh Gurudwara. They reached near Moti Bagh Gurudwara at about 8.15 PM, where the complainant (PW4), independent witness Mohan Lal (PW10) and SI Servendra Singh (PW8) proceeded to the Moti Bagh Gurudwara, whereas the other trap team members took position outside Gurudwara.
34. PW16 deposed that at about 8.40 PM, a person in police uniform came on a motorcycle and stopped near Gurudwara. He parked his motorcycle on the road outside the Gurudwara and started talking on his mobile phone. In the meantime, complainant (PW4) and shadow witness Mohan Lal (PW10) came out of the Gurudwara, followed by SI Servendra Singh (PW8). While the complainant and the shadow witness proceeded towards the person in police uniform, SI Servendra Singh joined the other team members and informed PW16 that he had put the DVR in the recording mode in the left shirt pocket of the complainant.
35. PW16 further deposed that complainant Harbans Singh (PW4) was seen meeting the person in police uniform while independent witness Mohan Lal (PW10) followed him keeping a safe distance. Complainant and the CC No. 21/2016; CBI Vs. Daya Ram Page No. 19 of 113 person in police uniform walked together towards Gurudwara, talking to each other and then returned to the place where the motorcycle was parked. The person in police uniform by gesture questioned the shadow witness Mohan Lal about his presence there. Complainant along with person in the police uniform then walked towards the car of the complainant parked on the roadside and they sat inside the car.
36. PW16 deposed that at about 8.45 PM he got a missed call of the complainant (PW4) on his mobile, which was a predecided signal of completion of bribe transaction. He alerted all team members and they all reached near the car. PW16 opened the rear door of the car and challenged the person in uniform, who was identified by the complainant (PW4) as accused SI Daya Ram. On being challenged, accused got perplexed and threw the bribe money on the car seat, which was picked up by the independent witness Mohan Lal (PW10) on the asking of PW16. Accused SI Daya Ram was asked by PW16 to come out of the car and he was caught by his wrists by Inspector Pramod Kumar and Inspector Shitanshu Sharma.
37. PW16 further deposed that numbers of GC notes CC No. 21/2016; CBI Vs. Daya Ram Page No. 20 of 113 recovered from the car were checked by the independent witnesses with the numbers mentioned in the handing over memo and they matched. Accused was taken to one of the CBI vehicles. Complainant told PW16 about what transpired between him and the accused and also that conversation between him and the accused was recorded in the DVR, which was put in his shirt pocket by SI Servendra Singh (PW8) in the recording mode.
38. PW16 deposed that washes of left and right hand of accused SI Daya Ram were taken separately, which turned pink. Washes were transferred in separate glass bottles, marked as "LHW" (Left Hand Wash) and "RHW" (Right Hand Wash) and then sealed in the presence of witnesses. Rough site plan of the spot was prepared. The trap team returned to CBI office at about 9.45 PM along with the accused. The recorded conversation between the complainant and accused SI Daya Ram was heard in the presence of the independent witnesses, which corroborated the version of the complainant. Memory card was thereafter taken out of the DVR and was sealed in a paper envelope, which was marked as Q2. Accused SI Daya Ram was formally arrested at about 10 PM and information of his arrest was given to SHO PS Chanakya CC No. 21/2016; CBI Vs. Daya Ram Page No. 21 of 113 Puri where accused was posted at that time.
39. PW16 further deposed that sample voice of accused SI Daya Ram was recorded in a new memory card in the presence of the independent witnesses (PW10 & PW11), whose introductory and concluding voices were recorded in the said memory card after ensuring its blankness, before and after recording the sample voice of the accused SI Daya Ram. This memory card was also sealed in a brown paper envelope which was marked as S1. The bribe money was sealed in a paper envelope which was marked as "trap money". The DVR make Sony used in the trap proceedings was also sealed in a paper envelope and marked as "DVR". Sample impression of the brass seal used in the proceedings were taken in ink and in lac on separate sheets. The proceedings were recorded by PW16 in the Recovery Memo, Ex. PW4/D (D05) on which the complaint & independent witnesses signed. CBI brass seal after use in the proceedings was handed over to the independent witness Mohan Lal (PW10).
40. PW16 has proved the arrestcumpersonal search memo of accused Daya Ram dated 27.11.2014, Ex. PW10/A (D06) and site plan dated 27.11.2014, Ex. PW10/B CC No. 21/2016; CBI Vs. Daya Ram Page No. 22 of 113 (D07). He identified his signatures on the handwash bottles, Ex. PW9/C (Exhibit LHW) & Ex. PW9/D (Exhibit RHW) and on 02 cloth wrappers, Ex. PW9/G & Ex. PW9/F, which were used by him at the spot to seal the bottles containing handwashes of the accused Daya Ram. He also identified his signatures on the brown envelope, Ex. PW4/E, containing 20 old currency notes in the denomination of Rs. 500/ and 40 old currency notes in the denomination of Rs. 1000/, collectively Ex. P4 (colly.). Witness identified the currency notes as the same which were produced by the complainant for using as trap money.
41. PW16 also identified his signatures on the brown color cut open envelope, Ex. PW7/K containing the memory card (Q2) in a plastic frame make SanDisk 4GB, Ex. PW7/M kept in a hard paper memory card cover make SanDisk, Ex. PW7/L, bearing his signatures on it. Witness also identified his signatures on the brown color cut open envelope, Ex. PW10/D containing the memory card (S1) in a plastic frame make Kingston 4GB, Ex. P2 kept in a hard paper memory card cover make Kingston, Ex. PW10/E, bearing his signatures on it. He identified the brown color cut open envelope, Ex. PW CC No. 21/2016; CBI Vs. Daya Ram Page No. 23 of 113 4/F containing micro SD card (Q1), used in the verification proceedings, which was received by him in the sealed condition from SI Sarvendra Singh (PW8). PW16 also identified his signatures on the brown color cut open envelope, Ex. PW10/G containing a Digital Voice Recorder (DVR) make Sony, Ex. P3, which was used in the proceedings and was sealed by him.
42. Statement of accused was recorded u/s 313 Cr.P.C without oath. He denied the incriminating evidence against him and claimed to be falsely implicated by the complainant, because he was investigating the case FIR No. 82/2014, PS Chanakya Puri in which complainant was an accused along with Rajender Bisht. He stated that during investigation he had sent notices to the complainant to join the investigation but he never joined and in connivance with the coaccused and CBI officials falsely implicated him in this case. Accused denied that he ever demanded bribe from the complainant or that anything was recovered from him. He examined 03 witnesses in defence, including himself.
Defence evidence
43. DW1 HC Naval Singh produced the duty register of PS Chanakya Puri and filed selfattested photocopy of the CC No. 21/2016; CBI Vs. Daya Ram Page No. 24 of 113 entries dated 12.11.2014 in the register, Ex. DW1/A, according to which accused SI Daya Ram was on picket duty from 6.00 PM to 10.00 PM on 12.11.2014 at Belgium Embassy.
44. DW2 Inspector Puran Singh, CBI, ACB, New Delhi filed selfattested photocopy of the entries of the General Diary Register (November, 2014) Ex. DW2/A (Colly. 30 pages) and also filed the photocopy of carbon copy of General Diary Entries dated 27.11.2014 as Ex. DW 2/B. He deposed that entries in the General Diary register are generally made by the Duty Officer, but at times, are made by "Munshi" of the Duty Officer.
45. Accused examined himself as a defence witness DW3 and deposed that complainant Harbans Singh (PW4) has been convicted in case FIR No. 61/2009; u/s 420/120B IPC; PS Bikhi, District Mansa and his son Dharmender Singh is a Proclaimed Offender in the said case. He filed the certified copy of the entire case file as Ex. DW3/A (Colly, 79 sheets), which he had received on his application Mark DW3/P.
46. I have heard Mr. K. K. Goel, Sr. PP for CBI and Advocate B. C. Mishra, counsel for accused Daya Ram. I have perused the evidence brought on record.
CC No. 21/2016; CBI Vs. Daya Ram Page No. 25 of 113 Sanction for prosecution
47. Prosecution has filed on record the sanction order (Ex. PW1/A) of PW1 Sh. Vijay Singh, DCP, who deposed that being DCP, New Delhi District he was competent to remove the accused SI Daya Ram from service and that after carefully examining the material and discussing the matter with concerned S.P, CBI and SHO PS Chanakya Puri along with Joint C.P Sh. Mukesh Kumar Meena, he granted sanction for prosecution of the accused.
48. Ld. defence counsel has assailed the sanction order on 02 grounds, one - that PW1 DCP Sh. Vijay Singh was not competent to grant sanction and the other - that the sanction was granted by PW1 without application of mind. With respect to the competency of PW1, it was argued that PW1 has admitted in the crossexamination that he had no power to appoint a SubInspector since he was in the Junior Administrative Grade of Indian Police Service. About nonapplication of mind by PW1 while granting sanction, it was argued that before granting sanction he had discussed the matter with the concerned S.P, CBI, SHO PS Chanakya Puri and Joint C.P, New Delhi range Sh. Mukesh Kumar Meena, thus CC No. 21/2016; CBI Vs. Daya Ram Page No. 26 of 113 was influenced by them and further that PW1 had received a draft sanction order, Ex. PW1/DX from CBI which was replicated by him as Ex. PW1/A after making some cosmetic changes. It was also argued that testimony of PW1 cannot be believed because he claims to have perused CFSL result before granting sanction, which was not ready when sanction was applied by CBI and was received from CFSL after filing of the charge sheet. Defence counsel has relied on "State of Karnataka Vs. Ameerjan, (2007) 11 SCC 273" in support of his arguments.
49. Sr. PP for CBI argued that PW1 was competent to grant sanction since criteria of competence of the sanctioning authority u/s 19 of P.C Act is "removability" and that sanction granted by him is valid, which was granted on the basis of material and due application of mind. It was argued that discussion by PW1 with his senior officer Joint C.P Sh. Mukesh Kumar Meena and concerned S.P, CBI shows his due indulgence while granting sanction. Reliance is placed on "C.S. Krishnamurthy Vs. State of Karnataka, (2005) 4 SCC 81" and "M. W. Mohiuddin Vs. State of Maharashtra, (1995) 3 SCC 567". With respect to mention of CFSL result in the sanction order, CC No. 21/2016; CBI Vs. Daya Ram Page No. 27 of 113 Sr. PP submitted that CFSL result was not part of the material submitted for sanction, as it was not ready by that time and argued that defence counsel should have confronted the witness and I.O in this regard.
50. In Ameerjan (Supra), the Apex Court considered the interpretation and, application of Section 19 of P.C. Act. It was held:
................................................................ ................................................................
9. We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.
10. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayukta............................................................
........................................................................... ........................................................................... ........................................................................... ........................................................................... Ordinarily, before passing an order of sanction, the entire records containing the materials CC No. 21/2016; CBI Vs. Daya Ram Page No. 28 of 113 collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as (sic to) the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced.
(emphasis supplied)
51. In C.S. Krishnamurthy (Supra), with respect to the obligation on the sanctioning authority for exercise of power to grant sanction for prosecution, it was held -
7. This sanction order was proved by Mr V. Parthasarthy, Deputy General Manager of Bangalore Telecom as PW 40, he was competent authority to accord sanction and he accorded the sanction for prosecution of the accused for the alleged offence on 2821990 as per Ext. P83. He deposed that SP, CBI sent a report against the accused and he perused the report and accorded the sanction as per Ext. P83. He deposed that he was satisfied that there was a case for prosecuting the accused for the alleged offence. He admitted that he received a draft sanction order and a draft sanction order was also examined by the Vigilance Cell and then it was put up before him. He also deposed that before according sanction he discussed the matter with the Vigilance Cell. He also admitted that he was not a law man, therefore, he discussed the legal implication with a legally qualified officer in the Vigilance Cell. He has denied the suggestion that he did not apply his mind in according sanction. It is no doubt true that sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant (sic) from harassment. But, the sanction should not be CC No. 21/2016; CBI Vs. Daya Ram Page No. 29 of 113 taken as a shield to protect corrupt and dishonest public servant...................................................... ........................................................................... ........................................................................... ........................................................................... When sanction order itself is eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction was accorded by a competent person with due application of mind.
8......................................................................... ........................................................................... ...........................................................................
9. Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order.............................. ........................................................................... ...........................................................................
(emphasis supplied)
52. In M.W. Mohiuddin (Supra) it is held by the Hon'ble Supreme Court that person competent to remove the accused from service at the relevant time is the competent authority to grant sanction. This legal position has been reiterated by the Apex Court in a later judgment "State of Madhya Pradesh Vs. Pradeep Kumar Gupta, AIR 2011 SC 2334". Relevant para is reproduced as under:
13. That being the position, it is clear from the CC No. 21/2016; CBI Vs. Daya Ram Page No. 30 of 113 provisions of Section 19 of the Prevention of Corruption Act, 1988 that the authority who is competent to remove the person concerned is competent to grant sanction. Unfortunately, the High Court, without considering these aspects of the Act and the Rules, relied only on the judgment of Ashok Baijal [1998 Cri LJ 3511 (MP)] in coming to an erroneous finding.
(emphasis supplied)
53. Sanction for prosecution of a public servant under the P.C. Act is mandatory. Under Section 19 P.C. Act, there is a legal bar on taking of cognizance of certain offences punishable under the P.C. Act, except with the previous sanction. In the present case, Section 19(1)(c) P.C. Act is applicable, according to which previous sanction of the authority competent to remove the accused from the office is required.
54. PW1 has maintained throughout his examination including crossexamination that being DCP he is competent to remove the accused SI Daya Ram, though it has come in his crossexamination that he had no power to appoint a SubInspector since he was in Junior Administrative Grade of Indian Police Service.
55. The mandate of the law under Section 19 P.C Act is that the sanction should be granted by the authority competent to "remove" the accused. There is no CC No. 21/2016; CBI Vs. Daya Ram Page No. 31 of 113 challenge to the competency of PW1 in this regard. For the sake of arguments, presuming that only a person competent to appoint will be the person competent to remove, Section 12 of the Delhi Police Act, 1978 pertaining to appointment of SubInspector of the Delhi Police is relevant. Relevant portion reads as under:
12. Appointment of subordinate ranks.--
Subject to such general or special orders in writing as the Administrator may make in this behalf,--
(a).................................................................. .......................................................................
(b) SubInspectors of Police and other officers of subordinate rank may be appointed by the Deputy Commissioner of Police, Additional Deputy Commissioner of Police, Principal of the Police Training College, or of the Police Training School, or any other police officer of equivalent rank.
(emphasis supplied)
56. Section 12 Delhi Police Act, empowers a Deputy Commissioner of Police to appoint a SubInspector. There is no dispute or contest to the fact that PW1 was a Deputy Commissioner of Police when he granted sanction. I am unable to comprehend, how an administrative grade granted to PW1 will dilute competency of his basic rank in the cadre. Any administrative order or rule to the contrary cannot prevail on the statute i.e. The Delhi Police Act in this CC No. 21/2016; CBI Vs. Daya Ram Page No. 32 of 113 case, in such like matters. Therefore, this Court is satisfied that PW1 was competent to grant sanction for prosecution of the accused, who was competent to remove the accused.
57. With respect to validity of the sanction, just because PW1 had discussed the matter with his senior and S.P, CBI, will not lead to presumption for nonapplication of mind. Rather it shows that PW1 was diligent and indulgent to understand the matter before granting sanction. There is no suggestion in the cross examination to the PW1 by the defence that his opinion was influenced due to such discussion or due to presence of his senior, Joint C.P. Mere suggestion that the sanction was granted mechanically without application of mind, which was denied by PW1, will not lead to any inference about nonapplication of mind. Discussion before grant of sanction does not mean that sanction is granted under influence. Reliance is placed on C.S. Krishnamurthy (Supra) in this regard.
58. With respect to the draft sanction order submitted by CBI along with material for grant of sanction, PW1 has stated in the crossexamination that he had read the draft sanction order and made some changes. Copy of CC No. 21/2016; CBI Vs. Daya Ram Page No. 33 of 113 the draft in which changes were made by PW1 in his own handwriting is filed as Ex. DW1/DX1. The fact that the changes were made in the draft by PW1 himself shows that he did not sign the draft sanction order mechanically. It has come in his crossexamination that after making the corrections, the sanction order was redrafted. This fact is proved on perusal of the draft sanction order, Ex. DW1/DX, the draft sanction order bearing correction Ex. DW1/DX1 and the final sanction order Ex. PW1/A. Receiving a draft sanction order from CBI along with other material doesn't mean sanction was granted without application of mind. Reliance is placed on C.S. Krishnamurthy (Supra) in this regard.
59. Ld. Sr. PP for CBI fairly conceded that CFSL report was not received when the sanction was applied and that it was not the part of the material placed for the sanction order. Therefore statement of PW1 in the cross examination that he had examined the CFSL result regarding the voice identification of the accused is factually incorrect, because PW1 could not have seen and examined the CFSL result which was not in existence at that time. Effect of this contradiction needs CC No. 21/2016; CBI Vs. Daya Ram Page No. 34 of 113 to be examined.
60. Sanction order, Ex. PW1/A which runs into 02 pages gives the brief background facts, gist of complaint against the accused and trap proceedings in the presence of independent witnesses. The documents submitted to PW1 for grant of sanction included FIR, various memos, statements of witnesses etc, which were sufficient for PW1 to make opinion for grant or refusal of sanction without having CFSL result. There is no cross examination of PW1 on these facts and the material produced before him. On the face of it, the sanction order, Ex. PW1/A, is selfexplanatory and shows due application of mind by PW1, who was the competent authority.
61. It seems mention of CFSL report has come in the sanction order Ex. PW1/A because it is mentioned in the draft sanction order Ex. DW1/DX submitted by CBI. Mention of CFSL result in the draft Sanction is a mistake committed by IO. He should not have mentioned it in the draft, when it was not received from CFSL. Moreover, defence should have confronted PW1 about CFSL result, which it failed to do. The mistake of I.O. does not go to the root of the matter so as demolish the CC No. 21/2016; CBI Vs. Daya Ram Page No. 35 of 113 credibility of the sanction order Ex. PW1/A and can be safely ignored. In this regard reliance is placed on "Karnel Singh Vs. State of M.P, AIR 1995 2472"
wherein while dealing with the mistakes committed by the Investigating Officer, the Apex Court observed that :
5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. Any investigating officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizurememo in regard to the 'chaddi'.
That is the reason why we have said that the investigation was slipshod and defective.
6. We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injury.
(emphasis supplied)
62. It is also to be noted that objection about competence of the sanctioning authority and validity of the sanction CC No. 21/2016; CBI Vs. Daya Ram Page No. 36 of 113 order is taken at the stage of final arguments. In view of Section 19(4) P.C. Act, I see no reason why it could and should not have been raised at an earlier stage of the trial when PW1 was examined as a witness. In view of deposition of PW1 and above discussion, it is held that there is a valid sanction of the competent authority to prosecute the accused Daya Ram in this case, which has been granted by the competent authority with due application of mind.
Demand and Acceptance
63. It is the case of the prosecution that accused SI Daya Ram had demanded Rs. 4 lacs as bribe from the complainant for giving him clean chit in case FIR No. 82/2014, and in pursuance to the demand, he accepted Rs. 50,000/ as partpayment. In order to prove demand and acceptance of bribe by the accused from the complainant (PW4), prosecution has relied on the oral testimony of complainant (PW4), independent witnesses Sh. Mohan Lal (PW10) & Sh. Santosh Kumar (PW11), testimony of CBI officials - PW8 SI Servender Singh (Verification Officer) & PW16 Inspector Anand Sarup (Trap Laying Officer) and the electronic evidence CC No. 21/2016; CBI Vs. Daya Ram Page No. 37 of 113 of the recorded conversation between the accused and the complainant.
64. Complainant Harbans Singh (PW4) is the star witness, but has been crossexamined by Sr. PP for CBI since he did not support the prosecution case on some aspects. Therefore in order to analyze and appreciate his testimony, it is deemed necessary to refer to relevant portions of his deposition. They are reproduced as under:
PW4 Harbans Singh [Deposition dated 26.02.2016 (examinationinchief)] ....................................................................................................... .......................................................................................................
After 4 or 5 months, one person namely, Daya Ram visited my house at Chandigarh. I had purchased my mobile phone with my residential address. After seeing my address on the same, Daya Ram visited my house. Daya Ram demanded a sum of Rs.4 lacs from me for the purpose of getting my name cleared from the investigation saying to me that I was named in the FIR of Delhi Police and he is investigating that case. (At this stage, witness has correctly identified the accused Daya Ram, present in the court today.) When he demanded the aforesaid amount from me, I visited the office of CBI at Delhi on 27.11.2014, in the morning at about 10:00 am. I lodged a complaint in the office CBI in respect of demand made from me by SI Daya Ram. The same is Ex.PW4/A (D1), which bears my signature at point 'A'. In order to verify the complaint, I was directed to made a call to SI Daya Ram. Accordingly, I made a call to him. The said call was recorded in the said instrument.............................................................................. ....................................................................................................... ..................................................................................During the said conversation, I told SI Daya Ram that I am coming from Chandigarh and at what place I had to come with money demanded CC No. 21/2016; CBI Vs. Daya Ram Page No. 38 of 113 by him. Daya Ram also told me the place where he will meet me i.e. near Dhaula Kuan, New Delhi.
I handed over Rs.50,000/ consisting 40 currency notes in the denomination of Rs.1000/ each and 20 currency notes in the denomination of Rs.500/ each, to CBI.
On Court Question, I state that this was agreed to be the first installment, out of the aforesaid amount of Rs.4 lacs.
Some powder was sprinkled on the said currency notes and a demo was given................................................................................ ....................................................................................................... ....................................................................................The said GC notes treated with powder were put in my right side pants pocket by myself. Thereafter, a call was also made to SI Daya Ram. ....................................................................................................... ....................................................................................................... ....................................................................................................... ...................................From CBI office we reached near the Gurudwara Moti Bagh and I got down from the vehicle of CBI aur mattha teka. We reached near the Gurudwara at about 08:00 p.m. Thereafter, I made a call to SI Daya Ram. He came there and sat in my car and talked to me in respect of the said bribe. Thereafter, I handed over the said amount to SI Daya Ram. After taking the bribe amount from me, SI Daya Ram put the same in right side pocket of his pants. When SI Daya Ram accepted the bribe amount from me, I made a call to CBI officials. The CBI officials came there and they caught SI Daya Ram from my car, which was hired by me. Thereafter, SI Daya Ram was brought to the Gypsy of CBI, where the washes of his hands were taken. On doing so, the said water turned into reddish (lal lal sa ho gaya tha) and the said water was kept in the bottles separately and thereafter, the said water was sealed in the bottles. I think in one bottle. Thereafter, I alongwith one Inspector sat in my car and the accused SI Daya Ram was in the Gypsy of CBI and we proceeded to office of CBI, where statements of witnesses were recorded. The money was counted and sealed in CBI office and I also signed the memos and the envelope the said GC notes were sealed.
....................................................................................................... ....................................................................................................... .......................................................................................................
(At this stage, MHCM, Ct. Finny Sam has produced a CC No. 21/2016; CBI Vs. Daya Ram Page No. 39 of 113 khaki colour envelope, sealed with the seal of CBI. After seeing the same witness states that the said envelope bears his signature at point 'A' and the same is Ex.PW4/E.) On opening the said envelope, it is found containing 40 GC notes of Rs.1000/ in denomination each and 20 GC notes of Rs.500/ in denomination each. After seeing the same and after tallying the numbers mentioned in the Handing Over Memo, I state that these are the same GC notes, which were handed over by me to CBI and recovered from the SI Daya Ram.
....................................................................................................... ....................................................................................................... PW4 Harbans Singh (Deposition dated 28.04.2016) ...................................................................................................... ..................................................................................................... ..................................................................................................... ....................................................................................................
The telephone number by which I had made calls on 27.11.2014 is 8556090565. This telephone number stands in the name of my tenant Deepak. I started using the said phone number because I started receiving threatening calls on my own phone numbers. I used this phone number for 04 to 05 months.
I have seen the attested copy of a Prepaid Customer Information Sheet in respect of mobile no. 8556090565. The same is now marked as Ex.PW4/N (Objected to). This photocopy reflects the photograph of Deepak Kumar, my tenant, at point 'A'. It contains address i.e. 1762, Dadu Majra, Chandigarh, UT. It is my house in which Sh. Deepak used to reside as tenant.
(At this stage, Ld. Sr. PP submits that the witness is not telling complete truth and he may be allowed to crossexamine the witness. Heard. Allowed.) XXXXX By Sh. Manoj Shukla, Ld. Senior Public Prosecutor for CBI.
....................................................................................................... .......................................................................................................
I cannot say if my conversation with Daya Ram was recorded through DVR placed in the car. (On specific clarification by this court) such conversation was recorded in the device kept in the car. It is correct that after reaching the Moti Bagh Gurudwara, I was asked to made a call to Daya Ram and I did make a call to CC No. 21/2016; CBI Vs. Daya Ram Page No. 40 of 113 Daya Ram. On reaching there, Daya Ram also made a call to me and asked about my whereabouts. I told him that I was near park of the Gurudwara Moti Bagh. Daya Ram reached there. I met him in front of gate of Gurudwara and from there we went towards the car hired by Raja Ram and Bisht, which was parked near the park of Moti Bagh Gurudwara. I sat on the front side seat of the vehicle, whereas Daya Ram sat on the back seat................................................................................................. ..................................................................................................... .....................................................................................................
It is correct that CBI had given me an instrument (i.e. DVR) for recording of conversation between myself and Daya Ram and that conversation was recorded by me when both of us were sitting in the car. It is also correct that later on, I had handed over the said instrument to CBI, which was sealed by CBI....................... ....................................................................................................... ....................................................................................................... ......................................................................................................
PW4 Harbans Singh (Deposition dated 10.05.2016) XXXXX By Sh. B. C. Mishra, Advocate for the accused Daya Ram.
....................................................................................................... ....................................................................................................... .....................................................................I came to Delhi on 27.11.2014 and met him in front of an office building. Later I came to know that it was CBI office building. I went inside the CBI office building along with Rajender Bisht. After reaching CBI office, I sat in a cabin and Rajender Bisht went to meet some people there. I remained seated in the said cabin and I did not meet anyone. I personally did not make any complaint to anyone. I did not meet Daya Ram prior to 27.11.2014, when I went to CBI office. I never conversed with Daya Ram on telephone prior to going to CBI office.
When I was in CBI office, I had a telephonic conversation with Daya Ram at around 1:00 pm. Call was firstly made by Rajender Bisht but Daya Ram did not pick the phone and later on Daya Ram called back......................................................... ....................................................................................................... .......................................................................................................
CC No. 21/2016; CBI Vs. Daya Ram Page No. 41 of 113 ..............................When we reached Moti Bagh Gurdwara, Rajender Bisht called Daya Ram and told that we are in Moti Bagh Gurudwara and our vehicle broke down and asked Daya Ram to come to Moti Bagh Gurudwara. Daya Ram reached there and met me near Gurudwara. Daya Ram asked me, where is Bisht. I told Daya Ram that he is near vehicle. The said vehicle was of Bisht. When we reached near vehicle, Bisht was not in the vehicle. Daya Ram asked from driver sitting in the vehicle that where is Rajender Bisht. He asked the driver to make phone call to Bisht. Driver called Bisht but he did not pick up the phone. In the meantime, 4 or 5 people of CBI came near the vehicle and we all came back to CBI office.............................................................................................. ...................................................................................................... .......................................................................................................
It is correct that prior to 27.11.2014, Daya Ram never demanded any bribe from me. It is also correct that at Gurudwara also Daya Ram not demanded any money from me. After 27.11.2014, CBI personnel never visited Chandigarh to meet me. I never gave any money to CBI. It might have been given by Bisht. The statement given by me today is the correct one and statement give by me on 26.2.2016 is incorrect. I had given the statement on 26.2.2016 under the pressure of CBI. It is correct that I had identified the documents during my examination in chief only on seeing my signatures and I am not aware as to what was written in them.
....................................................................................................... ....................................................................................................... XXXXX by Sh. Manoj Shukla, Ld. Sr. PP for CBI ....................................................................................................... ......................................................................................................
65. Defence counsel has assailed the prosecution evidence on the grounds interalia that complainant (PW4) has turned hostile and has stated in the crossexamination that he did not make any complaint and that he did not meet accused before 27.11.2014; complainant (PW4) has stated in his crossexamination that his phone did CC No. 21/2016; CBI Vs. Daya Ram Page No. 42 of 113 not have the facility of loudspeaker; averments in the complaint are not proved; PW8 SI Servendra Singh was not competent to conduct verification proceedings; independent witnesses PW10 & PW11 have stated that the conversation between accused and the complainant was in Punjabi whereas the transcript is in Hindi; demand and acceptance not proved beyond reasonable doubts; time and place of the transaction is not proved; there are different versions of the witnesses about demand and acceptance; there are material contradictions in the statements of the witnesses; transcript Ex. PW4/J is manipulated since witnesses have signed after a gap on the transcript; except the complainant (PW4), no other witness has identified the accused during trial and that according to PW8, PW10 & PW11 and that there was one more person present at the time of alleged proceedings, whose identity has not been disclosed by the prosecution. Defence counsel has relied on the following judgments in support of the arguments :
1. "B. Jayaraj Vs. State of Andhra Pradesh, (2014) 13 Supreme Court Cases 55";
2. "Mukhtiar Singh Vs. State of Punjab, (2017) 8 CC No. 21/2016; CBI Vs. Daya Ram Page No. 43 of 113 Supreme Court Cases 136";
3. "P. Parasurami Reddy Vs. State of Andhra Pradesh, (2011) 12 Supreme Court Cases 294";
4. A. Subair Vs. State of Kerala, (2009) 6 SCC 587"
5. State of Kerala and Another Vs. C.P. Rao, (2011) 6 Supreme Court Cases 450";
6. "State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede, (2009) 15 Supreme Court Cases 200";
7. "Nepal Singh Rawal Vs. CBI, 2011 (4) CC Cases (HC) 41" and
8. "Roshan Lal Saini Vs. CBI, 2010 SCC OnLine Del 3573".
66. Sr. PP has argued that despite the fact that the complainant (PW4) turned hostile on some points, his testimony has remained unshaken on demand and acceptance of bribe by the accused. It was argued that complainant (PW4) identified the accused in the Court and his version on demand and acceptance has been corroborated by the recorded conversation in Exhibits Q1 & Q2 and transcript Ex. PW4/J. It was argued that Verifying Officer SI Servendra Singh (PW8) had only verified the complaint on the direction of S.P and that verification of complaint before registration of FIR is not CC No. 21/2016; CBI Vs. Daya Ram Page No. 44 of 113 investigation. It was argued that testimony of PW4 about his meeting the accused at Moti Bagh Gurudwara has remained unshaken, who is corroborated on this fact by other witnesses. It was argued that testimony of PW4 cannot be discarded merely for the reason that he has not supported the prosecution story on some aspects. It was argued that plea of alibi introduced by the accused in his crossexamination as DW3 that he was not present at Moti Bagh Gurudwara and was apprehended from Shanti Path crossing traffic lights on the ring road has not been proved and neither any such suggestion was given to any of the prosecution witnesses in the crossexamination. Accused did not say this fact in his statement u/s 313 Cr.P.C and the onus is on him to prove the plea of alibi. It was argued that the transcript Ex. PW4/J with respect to Q1 & Q2 show clear understanding of the purpose and context of the conversation between the accused and the complainant. It was argued that visit of the accused to Chandigarh at the residence of the complainant is proved by the case diaries (Ex. PW2/B) of case FIR No. 82/14 and its denial by the accused in his deposition as DW3 is contrary to the record, which makes his plea of alibi and CC No. 21/2016; CBI Vs. Daya Ram Page No. 45 of 113 deposition untrustworthy. It was argued that the testimony of all the prosecution witnesses is consistent on material facts of the case and minor variations/contradictions, if any are inconsequential. Sr. PP has relied on following judgments in support of the arguments -
1. "Mrinal Das and Ors. Vs. State of Tripura, (2011) 9 Supreme Court Cases 479;
2. "Niranjan Singh Vs. State, 2014 Cri.L.J. 3289";
3. "S.C. Goel Vs. State through CBI, (2016) 13 Supreme Court Cases 258";
4. "Chaitanya Prakash Audichya Vs. CBI, (2015) 7 Supreme Court Cases 720"
67. Before proceeding to analyze, testimony of PW4 and other evidence in the light of arguments putforth, it is deemed necessary to refer to the basic law u/s 7 & 13 of P.C. Act. Taking illegal gratification/bribe by a public servant is an offence u/s 7 & 13 of P.C. Act. Relevant portions of sections are reproduced as under:
7. Public servant taking gratification other than legal remuneration in respect of an official act. -
Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or CC No. 21/2016; CBI Vs. Daya Ram Page No. 46 of 113 forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine. Explanation - (a) ...............
(b) ................
(c) ................
(d) ...............
(e) ...............
13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct, -
(a)...............
(b)...............
(c).............
(d) if he, -
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e)..............
Explanation - .......................... (2) Any public servant who commits criminal CC No. 21/2016; CBI Vs. Daya Ram Page No. 47 of 113 misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to [ten years] and shall also be liable to fine.
68.Distinction in the ambit and scope of Section 7 & 13 of P.C. Act was explained in detail by the Bombay High court in Rajendra Shinde Vs. State of Maharashtra 2018 SCC OnLine Bom 55. Relevant paras are as under:
20. As can be seen, both these Sections are defining as well as penal sections by themselves. The sentence provided under Section 7 is lesser than the one provided under Section 13. In this context, it may be noticed that Section 13(1)(a) refers to Section 7 specifically and Section 13(1)(a) and (b) are aggravated forms in the sense the repeated commission of offences by a public servant is envisaged. Under these two clauses, there is reference to the word "habitually". Section 13(d) uses the word "obtains", which would mean that "acceptance of bribe money" is included in Section 13 (1)(d).
Here the words "agrees to accept" and "attempts to obtain" are conspicuously absent. Therefore, under Section 13 (1)(d), the emphasis is on the acceptance. The penal provision under Section 13 is Subsection 2 of Section 13.
(emphasis supplied)
21. Section 7 on the other hand, is wider and uses the words "accepts" or "obtains" or "agrees to accept"
or "attempts to obtain". All these four words or phrases are used for specific purposes, thus Section 7 envisages that acceptance of bribe money is covered under the words "accepts" or "obtains". However, the use of the phrases "agrees to accept" or "attempts to obtain" would clearly cover the case of demand. In these eventualities, there may or may not be acceptance and yet the offence is complete as per CC No. 21/2016; CBI Vs. Daya Ram Page No. 48 of 113 Section 7. Thus there is no manner of doubt to hold that the demand is covered under Section 7. Similar phrases are used in Section 13 (1)(a) and 13 (1)
(b), thus under both these clauses, mere demand without acceptance is envisaged for which punishment is provided. Therefore, it cannot be said that mere demand is not an offence."
(emphasis supplied)
69. In B. Jayaraj (Supra) it was held that mere possession and recovery of currency notes is not sufficient to constitute the offence u/s 7 & 13(1)(d)(i) & (ii). Relevant para is as under:
8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused....................................................................
............................................................................... ..................................................In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
(emphasis supplied) CC No. 21/2016; CBI Vs. Daya Ram Page No. 49 of 113
70. In Mukhtiar Singh (Supra) it was held that proof of demand of illegal gratification is the gravamen of offence u/s 7 & 13 (1)(d)(i) & (ii) of P.C. Act and failure of prosecution to prove demand for illegal gratification would be fatal as mere recovery of amount from the accused would not entail his conviction.
71. In P. Parasurami Reddy (Supra), it was held when prosecution has not been able to prove that accused had fixed time and place to receive bribe money and raiding party constituted of 09 persons was not able to recover phenolphthalein treated currency notes thrown away by the accused in open, which were allegedly taken away by public persons, accused cannot be convicted on the sole evidence of handwashes of the accused in Sodium Carbonate turning pink.
72. In A. Subair (Supra), it was held that the Court cannot find its own reason for nonexamination of the complainant and in the absence of the complainant, accused cannot be convicted for want of substantive evidence to prove the factum of demand. Relevant paras are as under:
19. We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for the non examination of the complainant, it was not open to CC No. 21/2016; CBI Vs. Daya Ram Page No. 50 of 113 the courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the court.
28. 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.
(emphasis supplied)
73. In C.P. Rao (Supra), it was held that mere recovery of tainted money is not sufficient to convict a person u/s 7, 13(2) and 13(1)(d) P.C. Act. It was further held that when there is no corroboration of testimony of complainant regarding demand of bribe by the accused, evidence of complainant cannot be relied on.
74.In Dnyaneshwar Laxman Rao Wankhede (Supra), for invoking the provision of Section 20 P.C. Act, it was held that :
16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the CC No. 21/2016; CBI Vs. Daya Ram Page No. 51 of 113 presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused visàvis the standard of burden of proof on the prosecution would differ.
Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. .............................................................................. ..............................................................................
22. It is also a wellsettled principle of law that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail. (See Dilip v. State of M.P. [(2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] and Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516 : (2008) 1 SCC (Cri) 109].) (emphasis supplied)
75. In Nepal Singh Rawal (Supra), it was held by the Delhi High Court when there is no consistency in the statements of the witnesses and every witness is parroting differently, accused cannot be held guilty for committing the offence u/s 7 and 13(2) r/w 13(1)(d) of P.C. Act.
76. In Mrinal Das (Supra), the Apex Court dealt with the evidentiary value of testimony of a hostile witness and it CC No. 21/2016; CBI Vs. Daya Ram Page No. 52 of 113 was held that :
66. In the case on hand Ganesh Kol (PW 2), Satyendra Tanti (PW 9), Ramakanta Paul (PW 10) and Prabhir Biswas (PW 12) were declared as hostile witnesses.
67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to crossexamine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.
(emphasis supplied)
77. In Niranjan Singh (Supra), Hon'ble Delhi High Court relied on Mrinal Das (Supra) and held that it is a settled legal position that testimony of a hostile witness is not washed off the record completely and that so much version of such witness, which supports the line of CC No. 21/2016; CBI Vs. Daya Ram Page No. 53 of 113 prosecution and confirms to it, can be read. It was asserted that it is the bounded duty of the courts to sift the grain from the chaff and to find out the truth.
78. In S. C. Goel (Supra), while appreciating the testimony of a hostile witness with respect to demand of bribe, the Apex Court held that :
5. We have read and considered the evidence of PW 5 in its entirety. So far as demand made by the accused is concerned, PW 5 is clear and categorical in stating that the demand of Rs 10,000 was made.
Merely because PW 5 was declared hostile with regard to certain other aspects of the evidence tendered by him, the entire evidence cannot be discarded. The evidence tendered by the said witness with regard to the demand in question can be accepted if the same is otherwise worthy of trust. We are of the view that the evidence of PW 5 insofar as demand of bribe is concerned passes the aforesaid test and commends to us for acceptance.
(emphasis supplied)
79.In Chaitanya Prakash Audichya (Supra), Hon'ble Supreme Court distinguished P. Parasurami Reddy (Supra) and held that no prior fixing of time and place for receiving bribe is inconsequential. Relevant paras are:
14. The complaint, Ext. 34 preferred on 3052003 itself disclosed that the money was demanded and that the complainant was asked to make the payment by 3052003 itself. Given the assertions in the complaint, the submission that no preliminary investigation could be undertaken because of paucity CC No. 21/2016; CBI Vs. Daya Ram Page No. 54 of 113 of time is well founded. At the same time the incongruity in the timing when services of panch witnesses were sought for also pales into insignificance. It is true that the complaint did not state or suggest any time and place at which the complainant was supposed to fulfil the demand.
Though in P. Parasurami Reddy v. State of A.P. [(2011) 12 SCC 294 : (2012) 1 SCC (Cri) 552] there are certain observations that there was no prior commitment fixing the time and place for receiving the bribe, the decision discloses that there were various other circumstances which weighed with this Court. In any case, the facts in the present case show otherwise.
15. It was asserted by the complainant in his examination that he was asked by the appellant to see him at his residence after the office hours. Further, when PW 1 and PW 2 went to the house of the appellant, the conversation which PW 1 had with the wife of the appellant clearly shows that the visit of PW 1 was quite expected. On this issue there was no effective crossexamination at all. It would therefore be inconsequential if no prior commitment regarding fixing of the time and place for receiving the bribe was mentioned in the complaint.
16. In the present case the versions of PW1 and PW 2 are completely consistent establishing the basic ingredients of demand and acceptance. The tainted currency notes were found on the person of the appellant. The explanation given by him soon after the incident through his letter dated 1062003 is completely different from the theory put forth while the appellant examined himself as DW 2. In our view, the demand and acceptance thus not only stand fully established but the presumption invocable under Section 20 of the Act also stood unrebutted.
(emphasis supplied) CC No. 21/2016; CBI Vs. Daya Ram Page No. 55 of 113
80. In Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646 while dealing with the effect and consequences of contradictions, inconsistencies, discrepancies and omissions in the statements of the witnesses, it was held by the Hon'ble Supreme Court as under:
68. From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contradistinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution.
69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes it CC No. 21/2016; CBI Vs. Daya Ram Page No. 56 of 113 may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
(emphasis supplied) Analysis of evidence
81. As per the complaint dated 27.11.2014, Ex. PW4/A, accused had visited Chandigarh and met the complainant 34 times and had demanded the bribe. It has come in the deposition of PW4 that accused visited his house at Chandigarh and demanded Rs. 4 lacs for giving him a clean chit in the investigation of a case by telling him that he was named in the FIR, which accused was investigating.
82. It is not disputed that accused Daya Ram was investigating the case FIR No. 82/2014 registered as PS Chanakya Puri in which complainant Harbans Singh (PW4) was one of the accused persons. It is not disputed that 03 notices u/s 41A Cr.PC (Ex. PW2/C, Ex. PW4/L & Ex. PW4/M) were issued by the accused to the complainant during investigation of the said case.
83. Case diary of FIR No. 82/2014 dated 17.11.2014, CC No. 21/2016; CBI Vs. Daya Ram Page No. 57 of 113 Ex. PW2/B (colly) show that accused had gone to Chandigarh and had met complainant Harbans Singh at his house on 15.11.2014, when a notice was delivered to the complainant personally by the accused to appear for investigation on 18.11.2014. The case diary dated 08.07.2014, Ex. PW2/B (Colly), shows that accused had gone to the house of the complainant at Chandigarh on 05.07.2014 when he met Smt. Kuldeep Kaur, wife of the complainant, to whom a notice u/s 41A Cr.P.C for appearance of the complainant at PS Chanakya Puri, New Delhi on 10.07.2014 was given. It has come in the deposition of PW4 that he received 03 notices from the accused, Ex. PW2/C dated 20.07.2014, Ex. PW4/L dated 03.09.2014 and Ex. PW4/M dated 05.07.2014. Accused has admitted in the crossexamination as DW that these notices were given to the complainant by him.
84. Defence plea is that accused never met the complainant in person before 27.11.2014 and a suggestion to this effect was given to the complainant (PW4) in the cross examination which he admitted. It was argued that prosecution has failed to prove that accused met the complainant at Chandigarh on 12.11.2014.
85. With respect to the Case diaries Ex.PW2/B (colly) and CC No. 21/2016; CBI Vs. Daya Ram Page No. 58 of 113 service of notices u/s 41A Cr.P.C to the complainant during investigation of FIR No. 82/2014, accused as DW3 has stated in the crossexamination that notice Ex. PW4/M was served on the wife of the complainant by HC Gurmeet Singh on his behalf. He admitted the case diaries according to which the notices were served by him personally, but claimed, that is the way of writing the case diary. However, this explanation is not substantiated by the accused by either examining HC Gurmeet Singh as a witness or by placing any evidence on record to show or suggest that the case diary is to be written as claimed by the accused. I am unable to comprehend that if the notice(s) were served on the complainant or his wife by HC Gurmeet Singh, why it was not mentioned so in the case diary. There is no reason to not believe and accept the content/text of the case diary the way it is recorded. The evidence on record proves that accused had visited the house of the complainant at Chandigarh on 15.11.2014 and 05.07.2014 and he met the complainant Harbans Singh (PW4) on 15.11.2014, when he personally delivered notice to the complainant.
86. The fact for consideration is whether accused met the CC No. 21/2016; CBI Vs. Daya Ram Page No. 59 of 113 complainant at Chandigarh before 27.11.2014, when he could have made a demand. Even if visit of the accused to Chandigarh on a particular date i.e. 12.11.2014 is not proved, there is sufficient evidence to prove that accused visited house of the accused at Chandigarh on 05.07.2014 & 15.11.2014. Lack of evidence about visit of the accused to Chandigarh on 12.11.2014 is inconsequential.
87. This is also to be noted that accused sought permission to go outstation at Punjab vide Ex. PW7/H, during investigation of case FIR No. 82/2014, PS Chanakya Puri for arresting complainant Harbans Singh (PW4) from Punjab. Accused as DW3 admitted in his cross examination by the Sr. PP for CBI in reference to the above document that a decision for arrest of the complainant in case FIR No. 82/2014 was taken on 24.04.2014. However the case diaries Ex. PW2/B (colly) show that instead of arresting the complaint, accused personally served 02 notices at Chandigarh thereafter on 15.11.2014 and 05.07.2014. Though accused as DW3 tried to explain that, he had issued notice to the complainant on the advice of his seniors, but no document with respect to such advice has been CC No. 21/2016; CBI Vs. Daya Ram Page No. 60 of 113 filed on record. It is difficult to comprehend that when there was a written permission for arrest of the complainant, how the accused could issue notices to the complainant on oral advice of seniors. It is to be noted that all the 03 notices Ex. PW4/M, Ex. PW2/C, Ex. PW 4/L were issued by the accused to the complainant subsequent to 24.04.2014, when a decision for arrest of the complainant was taken. These notices are not disputed by the accused, who has admitted his signatures on the notices at point A.
88. Evidence on record in the form of case diary of case FIR No. 82/2014, Ex. PW2/B (colly) prove that accused had visited the house of the complainant at Chandigarh twice, complete denial of this fact by the accused leads to adverse inference against him. In the given circumstances when accused was the investigating officer of the case FIR No. 82/2014, in which the complainant was an accused, an order to arrest the complainant was a tool in the hands of the accused to demand bribe from the complainant. It is mentioned in the complaint Ex. PW4/A that demand for bribe was made by the accused and the testimony of the complainant as PW4 is also specific and clear in this CC No. 21/2016; CBI Vs. Daya Ram Page No. 61 of 113 regard. Testimony of PW4 about these facts cannot be washed away, just because in the crossexamination by the defence counsel he stated that his statement in the examinationinchief was under pressure from CBI, when his version in the examinationinchief is corroborated by other evidence.
89. Testimony of PW4, documentary and circumstantial evidence prove strong motive of the accused to demand bribe from the complainant by abusing his position.
90. It has come in the deposition of PW4 that when accused SI Daya Ram demanded bribe, he went to CBI office on 27.11.2014 in the morning at about 10.00 AM and made complaint Ex. PW4/A (D1) about demand made by accused SI Daya Ram. PW4 correctly identified the accused in the Court during his deposition and deposed that during verification of his complaint, on the asking of CBI, he made a call to the accused SI Daya Ram in the presence of others, which was recorded in an instrument and further that in the said conversation, he told accused SI Daya Ram that he was coming from Chandigarh and at what place should he (PW4) reach to deliver the money demanded by him. It has come in the deposition of PW4 that accused SI Daya Ram told CC No. 21/2016; CBI Vs. Daya Ram Page No. 62 of 113 him to meet him near Dhaula Kuan, New Delhi.
91. PW4 is corroborated by PW8 & PW10 about his presence at CBI office on 27.11.2014, filing of complaint Ex. PW4/A and his conversation with the accused on the mobile phone kept on loudspeaker, which was recorded simultaneously. Contradiction in the statement of PW4 about the time when he visited CBI office is inconsequential, in view of testimony of PW8 & PW10 and the Verification Memo Ex. PW4/B, according to which complainant had made mobile phone call to the accused at 4.58 PM. PW10 Sh. Mohan Lal has corroborated PW4 about the content of conversation between the accused and the complainant that it was a about money being short and complainant was told by the person on the other side in the call to reach at Dhaula Kuan.
92. PW10 was crossexamined at length by the defence counsel about alleged telephonic conversation between accused and the complainant and it has come in the crossexamination of PW10 that though he cannot understand Punjabi language, he can understand a bit of it, if spoken with Hindi mix. It has very specifically come in the crossexamination of PW10 that in the CC No. 21/2016; CBI Vs. Daya Ram Page No. 63 of 113 conversation with the accused during verification proceedings, complainant was speaking in Punjabi accent and further that transcription of the recorded conversation, Ex. PW4/J is in Hindi because the complainant had spoken to the accused in Hindi with Punjabi accent. This leaves no doubt that conversation between the accused and the complainant during verification proceedings was not only heard by PW10, he also understood the content and context of the conversation.
93. Though it has come in the crossexamination of PW4 by the defence counsel that his mobile phone did not have the provision of loudspeaker, his deposition in this regard is falsified not only by the testimony of PW8 and PW10, but also by his own deposition during examinationinchief, where he clearly deposed that his mobile phone conversation with the accused was simultaneously recorded in an instrument.
94. Verification proceedings were conducted by PW8, who has deposed on the lines of prosecution story and has proved the verification memo Ex. PW4/B. He is corroborated by independent witness PW10 who identified his signatures on the verification memo Ex.
CC No. 21/2016; CBI Vs. Daya Ram Page No. 64 of 113 PW4/B. Defence counsel has assailed the proceedings conducted by PW8 on the ground that he was not competent to carry out the proceedings.
95. According to Section 17(a) P.C. Act (ChapterIV -
Investigation into the cases under the Act), in the case of the Delhi Special Police Establishment, no police officer below the rank of an Inspector of Police shall investigate any offence punishable under the P.C. Act without the order of a Metropolitan Magistrate. PW8 SI Servendra Singh was SubInspector when he conducted verification proceedings and hence was not competent to investigate without the order of a Metropolitan Magistrate. Now the point for consideration is, whether verification proceedings conducted by PW8 would be part of "investigation" of this case under the P.C. Act.
96. Term "investigation" is not defined in the P.C. Act, therefore it has to be understood as defined in the Code of Criminal Procedure (Cr.P.C). Section 2(h) Cr.P.C defines "investigation" and its Chapter X deals with the power of police for investigation, which starts from Section 154 - Information in cognizable cases. Which means police can investigate a cognizable offence only after registration of FIR. Hence, an act of a police officer CC No. 21/2016; CBI Vs. Daya Ram Page No. 65 of 113 before registration of FIR will not be an act of investigation by a police officer. Therefore, the verification proceedings conducted by PW8 is not investigation so as to hit at his competency. The act of PW8 in the verification proceedings was not his independent act, which was done by him on the direction of S.P. Verification of complaint under the P.C. Act before registration of FIR is a procedural safeguard against false prosecution of a public servant. Therefore, proceedings conducted by PW8 are valid.
97. Besides the oral testimony of the complainant and the witnesses, prosecution has led electronic evidence on record to prove that on 27.11.2014, during verification proceedings, complainant Harbans Singh had made a phone call from his mobile no. 8556090565 to the accused at his mobile no. 9654660038 at about 4.58 PM.
98. PW3 Sh. Pradip Singh, Alternate Nodal Officer, Vodafone Mobile Services Ltd. has deposed that he had sent to CBI, the Customer Application Forms (CAF) and CDRs of mobile phone numbers 9654660038 and 8556090565 for 27.11.2014 along with his certificate u/s 65B of Indian Evidence Act. CAF of mobile phone no. 9654660038 is Ex. PW3/B according to which this CC No. 21/2016; CBI Vs. Daya Ram Page No. 66 of 113 particular no. was issued to Daya Ram. Accused while testifying as defence witness (DW3) admitted in the crossexamination by Sr. PP for CBI that on 27.11.2014 he was using the mobile phone no.9654660038. Nothing has come in the crossexamination of PW3 to create any doubt about the CDR, Ex. PW3/C of this number dated 27.11.2014, neither it is disputed.
99. PW3 has proved its Customer Application Form (CAF), Ex. PW3/F, according to which this number was issued in the name of Deepak Kumar. It has come in the examinationinchief of the complainant as PW4 that on 27.11.2014, he was using the above number, which was in the name of his tenant Deepak Kumar. PW4 has deposed that he took the number in the name of his tenant because he was getting threatening calls on the mobile no. in his own name, thus explaining the reason for using the mobile phone number issued in the name of Deepak Kumar. PW4 identified photo of Deepak Kumar on the Customer Application Form (CAF), Ex. PW3/F and stated that the address in the application - 1762, Dadu Mazra, Chandigarh UT is his house address where Deepak Kumar was a tenant. Deposition of PW4 about facts has gone unrebutted.
CC No. 21/2016; CBI Vs. Daya Ram Page No. 67 of 113 There is no dispute or contest to the CDR Ex. PW3/G of this number dated 27.11.2014.
100.CDRs Ex. PW3/C & Ex. PW3/G establish that on 27.11.2014 at 16.58 (4.58 PM) complainant had called the accused and spoke to him for about 67 seconds. This corroborates PW8 & PW10 that on the above date and time, complainant had spoken to the accused, when demand was confirmed.
101.It is a settled legal position that deposition of the hostile witness is not washed off the record completely and so much version of such witness, which supports the line of prosecution, can be relied. On the joint reading of testimony of PW4, PW8 and PW10 along with the CDRs of the mobile phones used by the accused and the complainant, prosecution has been able to establish that there was demand for bribe of Rs. 4 lacs by the accused from the complainant on and before 27.11.2014.
102.PW4 has deposed on the line of the prosecution story that he handed over to CBI Rs. 50,000/ in the denomination of Rs. 1000/ G.C notes (40 currency notes) and Rs. 500/ G.C notes (20 currency notes), which was to be given to the accused as first installment of Rs. 4 lacs. PW4 also deposed that some powder was CC No. 21/2016; CBI Vs. Daya Ram Page No. 68 of 113 sprinkled on those currency notes and it was demonstrated that if any person would touch those notes, his handwash would give pink color. PW4 stated that after demonstration, the pink water was thrown away and the powder treated G.C notes were put by him in his right side pant pocket. PW4 deposed that after preparations at the CBI office, they left the CBI office at about 6.30 PM, in 02 CBI vehicles and his car. Contradictions in the deposition of PW4, a hostile witness, as to who had kept the phenolphthalein powder treated currency notes in his pant pocket is inconsequential, in view of testimony of independent witness Sh. Santosh Kumar (PW11) & Trap Laying Officer Inspector Anand Sarup (PW16) that money was kept in the pant pocket of PW4 by PW11, which is consistent and is on the line of Handing Over Memo, Ex. PW4/C. Testimony of independent witnesses PW10 & PW11 and Trap Laying Officer PW16 is consistent on the fact that the number of the currency notes were mentioned in the Handing Over Memo Ex. PW4/C.
103. PW10 Sh. Mohan Lal has corroborated PW16 Inspector Anand Sarup, Trap Laying Officer that before leaving CBI office, he was instructed by PW16 to act as a CC No. 21/2016; CBI Vs. Daya Ram Page No. 69 of 113 shadow witness and to remain close to the complainant and try to overhear the conversation between the complainant and the accused and also to see the transaction between the two. It has also come in his deposition that he was instructed to give signal after completion of the transaction by rubbing his face with his hands. Nothing has come in the crossexamination of PW10 to shake his testimony on these facts.
104.It has come in the deposition of PW4 that they reached near Gurudwara Moti Bagh at about 8.00 PM, where he made a call to accused SI Daya Ram, who came and sat in his car. It has come clearly in the deposition of PW4 that accused talked to him about bribe and thereafter he handed over the bribe amount to the accused, which was kept by him in the right side pocket of his pant. PW4 then made a call to CBI officials, who came and caught accused SI Daya Ram from the car.
105.PW4 deposed that accused SI Daya Ram was brought to the Gypsy of CBI where his handwashes were taken and the water turned reddish, which was kept in the bottles separately and were sealed. Thereafter they all returned to the CBI office where statements of the witnesses were recorded, the money was counted and sealed. PW4 CC No. 21/2016; CBI Vs. Daya Ram Page No. 70 of 113 signed the memos and the envelope in which the said GC notes were sealed.
106.PW4 identified his signatures on the Verification Memo dated 27.11.2014 Ex. PW4/B (D2, pages 1 & 2), the Handing Over memo dated 27.11.2014, Ex. PW4/C (D4) and the Recovery Memo dated 27.11.2014, Ex. PW4/D (D5). PW4 also identified his signatures at point A on the sealed Khakhi envelope, Ex. PW4/E which contained 40 GC notes of Rs. 1000/ denomination and 20 GC notes of Rs. 500/ denomination. PW4 identified the GC notes kept in the envelope as the same which were handed over by him to CBI and were recovered from accused SI Daya Ram.
107.Independent witness PW10 Sh. Mohan Lal has corroborated PW4 Harbans Singh that after reaching Moti Bagh Gurudwara, complainant had spoken to the accused by keeping his mobile phone on the loudspeaker mode and that in the said conversation complainant had spoken that his vehicle has gone to airport after dropping him and called the accused to come to Gurudwara to which accused agreed. It has further come in the deposition of PW10 that after about 1015 minutes, a call came on the mobile phone of the CC No. 21/2016; CBI Vs. Daya Ram Page No. 71 of 113 complainant from accused Daya Ram, who informed him that he had reached at Gurudwara and was standing outside.
108.It has come in the deposition of PW16 Inspector Anand Sarup that around that time they saw a person in police uniform came on a motorcycle outside the Gurudwara and then he was seen talking on a mobile phone. It has come consistently in the testimony of independent witnesses PW10 & PW11 & Trap Laying Officer PW16 that complainant was seen walking towards the person in police uniform who had come on a motorcycle and then they were both seen talking.
109.It has come in the deposition of PW10 that the person in police uniform was later on identified as accused Daya Ram and that he followed the complainant and the accused as was instructed and on his constant following them, accused started staring at him and asked him where he was going. It has further come in the deposition of PW10 that on the questioning of accused, he told him that he was going on his way. PW10 then moved towards the market area and stood at a distance to watch activities and saw them proceeding towards the car of the complainant. Deposition of PW8, PW11 and CC No. 21/2016; CBI Vs. Daya Ram Page No. 72 of 113 PW16 is consistent on the fact that they saw accused and the complainant getting into the parked car and sat on its rear seat.
110.Deposition of PW16 and PW8 is consistent on the line of the prosecution story that on receiving a signal of missed call from the complainant (PW4), the entire trap team rushed to the car in which the accused and the complainant were sitting on the rear seat of the car. Deposition of PW16 has remained unshaken in the crossexamination that when he confronted the accused, he became perplexed and threw the phenolphthalein powder treated G.C. notes on the car seat, which were recovered by independent witness PW10 on his direction. PW10 has corroborated PW16 on this fact. Deposition of PW10, PW11 & PW16 is consistent on the line of the prosecution story that the number of the recovered currency notes were tallied by the independent witnesses with the Handing Over Memo Ex. PW4/C and they matched.
111. Since transaction of bribe took place inside the car, it could not have been witnessed by any person other than the complainant himself. Testimony of complainant (PW4) is clear and specific that he handed over the CC No. 21/2016; CBI Vs. Daya Ram Page No. 73 of 113 bribe money to the accused while sitting in the car, when accused had demanded. PW4 has deposed that after the transaction of bribe when accused was putting inside his pant, he had given a missed call to PW16, when CBI people came and apprehended the accused. His testimony is consistent with the deposition of PW16 that he received a missed call from PW4 and rushed to the car along with the team, when he saw the money in the hands of the accused, who threw the money on the car seat, when he was confronted by PW16.
112.Deposition of independent witnesses PW10 & PW11 is consistent with the testimony of Trap Laying Officer PW 16 that handwashes of accused were taken at the spot in the CBI vehicle, which turned pink and the pink solution was put in 02 glass bottles at the spot and sealed. Testimony of all witnesses is consistent on the fact that team then returned to the CBI office taking along the accused, where the recovered money was sealed in an envelope and further proceedings were conducted by PW16.
113.Contradiction in the statement of PW4 that solution was put in one glass bottle is inconsequential in the light of deposition of other witnesses in this regard.
CC No. 21/2016; CBI Vs. Daya Ram Page No. 74 of 113 Inconsistency in the statement of independent witness PW10 Sh. Mohan Lal, who had recovered the bribe money from the car seat on the asking of PW16 about time when he had recovered the money, is inconsequential in over all facts and circumstances.
114.PW12 Sh. Atul Hajela, DSP, CBI has proved that vide letter Ex. PW9/DA he had sent 02 sealed bottles containing handwashes of the accused to CFSL. PW9 Sh. V.B. Ramteke, Senior Scientific Officer GradeI (Chemistry), CFSL, New Delhi, by way of his report Ex. PW9/A has proved that the solution in the sealed bottles received at CFSL for chemical analysis was found containing phenolphthalein. Defence has not been able to put any serious challenge to the fact that the bottles Ex. PW9/C (Ex. LHW) & Ex. PW9/D (Ex. RHW) contained handwashes of the accused, which were taken at the spot in the presence of the witnesses. Presence of phenolphthalein in the handwashes leads to the inference that phenolphthalein powder came on the hands of the accused through the phenolphthalein powder treated currency notes which he had received from the complainant while sitting on the rear seat of the car. There is no merit in the argument of the defence CC No. 21/2016; CBI Vs. Daya Ram Page No. 75 of 113 counsel that wash of the car seat was not taken because the fact that notes were recovered from the car seat after they were thrown by the accused on being challenged by Trap Laying Officer PW16 Inspector Anand Sarup is proved by oral testimony of the witnesses, which has remained unshaken in the crossexamination.
115.The defence plea is that the accused was apprehended by some persons while he was standing at the traffic light of Shanti Path crossing at the ring road. It is to be noted that this plea of alibi has been taken by the accused for the first time during his crossexamination by the Sr. PP for CBI. No such suggestion was made to any of the witnesses, who deposed that accused was apprehended outside Moti Bagh Gurudwara. Onus is on the accused to prove that he was present at Shanti Path crossing traffic lights at the ring road and not on Moti Bagh Gurudwara, which he has failed to discharge. Moreover, as already discussed in the previous part of the judgment that tower location chart shows presence of accused and the complainant at one place around the time of the alleged transaction of bribe, which also contradicts the defence plea that accused was not present at Moti Bagh Gurudwara and was at some other CC No. 21/2016; CBI Vs. Daya Ram Page No. 76 of 113 place.
116.Testimony of complainant (PW4), independent witnesses PW10 Sh. Mohan Lal & PW11 Sh. Santosh Kumar, PW8 SI Servendra Singh and PW16 Inspector Anand Sarup is consistent on the fact that on 27.11.2014, after verification proceedings, the trap team including them had reached at Moti Bagh Gurudwara, where accused came on motorcycle and met the complainant when the bribe money was allegedly accepted by the accused from the complainant in the private car of the complainant. Presence of accused and the complainant at one place is proved by CDRs of their mobile phones Ex. PW3/C & Ex. PW3/G respectively, according to which on 27.11.2014 at about 8.40 PM tower location of their mobile phone was same i.e. 404110012657621.
117.Accused has been identified by the complainant (PW4) during his testimony. Identity of accused has never been in dispute during entire trial and therefore, there was no need for the other witnesses to formally identify him in the Court during their deposition. The arrest memo of the accused Ex. PW10/A bears his signatures which the accused identified during his crossexamination as CC No. 21/2016; CBI Vs. Daya Ram Page No. 77 of 113 DW3. List of articles recovered from the possession of the accused at the time of arrest includes RC of vehicle no. DL6SAG9569 and accused has admitted during his crossexamination that at the time of his arrest he was using the above motorcycle. All the prosecution witnesses while deposing in the Court have referred to the accused by his name leaving no doubt about his identity whom they saw in police unifrom at the time of incident and thus no need for formal proof of identity of accused by them during trial.
118.Defence counsel made effort to discredit the deposition of the prosecution witnesses by saying that there was one more person present along with the complainant during verification and trap proceedings, whose identity has not been disclosed by the prosecution. I am unable to comprehend how it will make any difference to the prosecution story or the defence, even if it is believed that there was one more person present along with the complainant during the proceedings.
119. Mobile phone conversation between the accused and complainant during verification proceedings (Q1) and trap proceedings (Q2) clearly show conversation between the two to decide the time and meeting place, CC No. 21/2016; CBI Vs. Daya Ram Page No. 78 of 113 which was initially Dhaula Kuan during verification proceedings and then was changed to Moti Bagh Gurudwara during trap proceedings. Therefore, there is no merit in the defence argument that there was no fixing of time and place between the accused and the complainant.
120. On the joint reading of the testimony of PW4, PW8, independent witnesses PW10 & PW11 and Trap Laying Officer PW16, they are found consistent and on the line of the prosecution story that pursuant to the demand of the accused, he received Rs. 50,000/ from the complainant as partpayment of bribe amount of Rs.4 lacs.
121. Besides the oral testimony of the witnesses, prosecution has relied on the electronic evidence, credibility, admissibility and relevance of which is necessary to be examined.
Integrity of recorded conversation
122. PW8 SI Servendra Singh has deposed that on 27.11.2014 during verification proceedings, conversation between accused and complainant Harbans Singh (PW4) was recorded in a brand new memory CC No. 21/2016; CBI Vs. Daya Ram Page No. 79 of 113 card through a DVR in the presence of independent witness Mohan Lal (PW10), when complainant made a call from his mobile phone to the accused on his mobile phone by keeping his mobile phone on loudspeaker mode. It has come in the testimony of PW8 that the said memory card used for recording the conversation was marked as "Q1" and was sealed in the presence of the complainant and the independent witness Mohan Lal (PW10). During his testimony in the Court, PW8 identified the memory card Q1 used by him in the verification proceedings as Ex. PW4/H. It has further come in his testimony that after registration of FIR, he handed over the sealed envelope containing micro SD card Q1 and the verification memo, Ex. PW4/B to Inspector Anand Swarup (PW16), to whom investigation was assigned.
123. PW16 Inspector Anand Sarup has corroborated PW8 that after registration of FIR (Ex. PW16/A) investigation of this case was assigned to him and he had received from SI Servendra Singh (PW8) a sealed envelope marked Q1. PW16 also received CBI brass seal from the independent witness Mohan Lal (PW10), which was given to PW10 by PW8 after sealing the CC No. 21/2016; CBI Vs. Daya Ram Page No. 80 of 113 envelope containing Q1 in the verification proceedings.
124. It has come in the testimony of PW16 that in the trap proceedings, he arranged a newly packed memory card from the CBI office which was opened in the presence of independent witnesses and then was put in the DVR. Blankness of this memory card was ensured and thereafter introductory voice of the independent witness was recorded. This DVR, containing micro SD card was given in the custody of PW8, who had handed it over to the complainant (PW4) in the recording mode before the transaction of bribe, which was kept by the complainant (PW4) in his shirt pocket. It has further come in the testimony of PW16 that after the bribe transaction, DVR was taken back from the complainant (PW4) by PW8 and was switched off. DVR containing micro SD card was taken from PW8 by PW16 after returning to CBI from the trap spot. PW8 has corroborated PW16 on these facts. It has further come in the deposition of PW16 that at the CBI office the memory card was taken out from the DVR by him and was sealed in an envelope which was marked as "Q2".
125. It has come in the testimony of PW16 that at the CBI office sample voice of accused was recorded in another CC No. 21/2016; CBI Vs. Daya Ram Page No. 81 of 113 new memory card through DVR, in which introductory and concluding voices of the independent witnesses were recorded before and after the sample voice of the accused. The said memory card was marked as "S1"
and was sealed in an envelope. The DVR used in the trap proceedings was also put in an envelope and sealed which was marked as "DVR". The proceedings were recorded in the recovery memo, Ex. PW4/D by PW16 on which witnesses had signed. PW16 had testified that the CBI brass seal used in the trap proceedings was handed over to the independent witness Mohan Lal (PW10). During his testimony in the Court, PW16 identified the micro SD card Q2 (Ex. PW7/M), micro SD card S1 (Ex. P2) and DVR (Ex. P3) which was used by him in the trap proceedings.
126. PW12 Sh. Atul Hajela, DSP, CBI, ACB, New Delhi has deposed that investigation of this case was assigned to him on 01.12.2014 and during investigation on 03.12.2014, he had prepared 02 letters on behalf of SP, one for sending the Exhibits Q1, Q2, S1 & DVR to CFSL and another for sending handwashes Mark LHW & RHW to CFSL. He proved the forwarding letter of SP dated 03.12.2014, Ex. PW12/A vide which he had sent CC No. 21/2016; CBI Vs. Daya Ram Page No. 82 of 113 the Exhibits Q1, Q2, S1 & DVR to CFSL.
127.PW13 Inspector Ajit Singh, CBI, ACB, who was assigned investigation of this case after PW12 DSP Sh. Atul Hajela, has deposed that during investigation, a letter of Director, CFSL dated 08.12.2014, Ex. PW13/B, addressed to SP, CBI, ACB, Delhi was received, asking the CBI to collect the recorded conversation in a CD for investigation purposes and he collected a sealed CD mailer containing CD of the recorded conversation from CFSL, CGO Complex. It has come in the deposition of PW13 that on 09.12.2014, he had opened the sealed CD mailer in the presence of complainant (PW4) and 02 independent witnesses Sh. Mohan Lal (PW10) & Sh. Santosh Kumar (PW11) and prepared the transcription of the recorded conversation therein vide memo, Ex. PW4/J. He is corroborated on this fact by PW10 & PW11 who identified their signatures of the transcript Ex. PW4/J. Nothing has come in the crossexamination of these witnesses to create any doubt about preparation of the transcript.
128.PW15 Dr. Deepak Talwar has testified that on 03.12.2014 vide a forwarding letter of SP, CBI, ACB, New Delhi addressed to Director, CFSL, Ex. PW12/A, CC No. 21/2016; CBI Vs. Daya Ram Page No. 83 of 113 04 sealed parcels marked Q1, Q2, S1 & DVR were received along with transcript of the recorded conversation and seal impressions. This letter and the 04 sealed parcels (Q1, Q2, S1 & DVR) were put up before him being H.O.D (Physics) on the same day which he had marked to his junior staff for checking and receiving. He filed the photocopy of this letter from his record, Ex. PW15/A which bears his endorsement at point A on the top. It has come in the deposition of PW15 that he marked the parcels for examination to Dr. Manisha Kulshrestha, SSOII (Physics) and proved the certified copy of his office record, Ex. PW15/B in this regard. PW15 deposed that Dr. Manisha Kulshrestha had opened all the sealed exhibits on the same day and filed the copy of opening sheet, Ex. PW15/C, which mentions description of the parcels, number of seals on the parcels, contents of seal impressions and contents of the parcels. It is mentioned in Ex. PW15/C that parcel Mark DVR was marked as Mark R1 by Dr. Manisha Kulshrestha.
129.PW15 further deposed that Dr. Manisha Kulshrestha could not examine the parcels as she proceeded on leave. Thereafter, the parcels were taken up for CC No. 21/2016; CBI Vs. Daya Ram Page No. 84 of 113 examination by him with the approval of the Director, CFSL. He examined the exhibits and gave detailed report, Ex. PW15/D. During deposition in the Court, PW15 identified his signatures on the micro SD cards Q1 (Ex. PW4/H), Q2 (Ex. PW7/M), S1 (Ex. P2) and the DVR (Ex. P3).
130.As per forwarding letter, Ex. PW12/A, one of the queries (query no. 2) raised in the letter is - "whether any of the memory cards/conversation has been tampered with or not". Response to this query in the report, Ex. PW15/D on page 08 is as under:
Regarding Query No. 1.......................................................................... .......................................................................... .......................................................................... ..........................................................................Regarding Query No. 2
Waveform, spectrographic and critical auditory examination of the audio recordings contained in micro SD card marked exhibits 'Q1', 'Q2' & 'S1' reveal that the audio recordings are continuous and no form of tampering detected.Regarding Query No. 3
........................................................................... ........................................................................... ........................................................................... ...........................................................................
(emphasis supplied)
131.With respect to DVR, which was Marked Ex. R1 during analysis, it is mentioned in the CFSL result, Ex. PW CC No. 21/2016; CBI Vs. Daya Ram Page No. 85 of 113 15/D that Ex. R1, the DVR make Sony, was found empty. It has come in the deposition of PW15 that the recordings in micro SD cards Q1, Q2 & S1 could have been used for recordings in micro SD card through this DVR.
132.Defence counsel argued that conversation recorded in micro SD cards Q1 & Q2 cannot be believed because the verification memo, Ex. PW4/B & recovery memo, Ex. PW4/D do not mention the fact that the conversations were recorded in the micro SD cards Q1 & Q2 respectively. Credibility of report, Ex. PW15/D is assailed on the ground that as per the transcriptioncum voice identification memo, Ex. PW4/J, transcript of the recorded conversation in Exhibits Q1 & Q2 was prepared on 09.12.2014, whereas PW15 has deposed in the Court and has mentioned in his report, Ex. PW15/D that copy of transcription was received on 03.12.2014 along with 04 sealed parcels. It was argued that if the transcript was prepared on 09.12.2014, its copy could not have been sent to CFSL along with sealed exhibits on 03.12.2014. And if a copy of transcript was sent along with sealed exhibits to CFSL on 03.12.2014, preparation of transcript on 09.12.2014 stands demolished. Micro CC No. 21/2016; CBI Vs. Daya Ram Page No. 86 of 113 SD cards and the DVR were not deposited in the malkhana. Hence, it was argued that micro SD cards Q1 & Q2 were tampered and their genuineness is highly doubtful. Defence counsel has relied on "Valsala Vs. State of Kerala, 1993 Supp (3) Supreme Court Cases 665"
133.Sr. PP for CBI argued that memos Ex. PW4/B & Ex. PW 4/D clearly show that the conversations were recorded. With respect to the deposition of PW15 about receipt of copy of transcript along with exhibits, Sr. PP argued that the forwarding letter of S.P, CBI to the Director, CFSL, Ex. PW12/A vide which the sealed parcels were sent to CFSL does not say that the copy of the transcript was included. It was argued that copy of the transcript was not forwarded along with sealed exhibits vide forwarding letter, Ex. PW12/A and that the person who had sent the exhibits to CFSL, has not been cross examined by the defence counsel on this aspect.
134.It is clearly mentioned in the Verification Memo Ex. PW4/B that conversation between the complainant and accused was simultaneously recorded in micro SD card Q1 through DVR. On complete reading of the Recovery Memo Ex. PW4/D, it is clear that conversation CC No. 21/2016; CBI Vs. Daya Ram Page No. 87 of 113 between the accused and the complaint during trap was simultaneously recorded in the micro SD card Q2 through DVR. Hence, there is no merit in the defence argument in this regard.
135.Forwarding letter of S.P, CBI dated 03.12.2014 Ex. PW12/A shows that 04 sealed exhibits were sent to Director, CFSL vide this letter. It does not say that a copy of transcript was also sent along with the exhibits. The sealed exhibits were sent to CFSL by PW12 and he does not say that copy of transcript was also sent along with the exhibits. Endorsement of receipt by an official of CFSL at point B on the bottom of first page of the forwarding letter, Ex. PW12/A reads as - "received 04 sealed parcels in Physics Division". If copy of the transcript of the recorded conversation was also received at CFSL along with the sealed exhibits vide the forwarding letter, it was bound to be mentioned in the endorsement of acknowledgement of receipt. It is relevant to take note that Ex. PW15/A is the copy of the original forwarding letter which was received at CFSL on 03.12.2014 along with the exhibits and as per endorsement at the top center of its first page, it was marked to H.O.D (Physics) on the same day. On the CC No. 21/2016; CBI Vs. Daya Ram Page No. 88 of 113 right side of this endorsement, there is endorsement of PW15 with his signatures dated 03.12.14 at point A, which reads as - "Please check and receive the case exhibit". This endorsement also doesn't mention about receipt of the transcript. It is pertinent to mention that there is another endorsement of PW15 also dated 03.12.14 on the first page of the forwarding letter at the topleft, as is apparent from his signatures, which reads as "The IO of the case assured to provide the transcription after providing the office copy of the memory cards/conversation of CFSL/CBI/ND". This endorsement of PW15 clearly shows that the transcription of the recorded conversation was not sent by CBI to CFSL along with forwarding letter, Ex. PW12/A, which was to be provided by CBI after receiving the copy of recordings in the memory cards from CFSL. This fact is further proved by the testimony of PW13 Inspector Ajit Singh, who has deposed that during investigation, a letter of Director, CFSL dated 08.12.2014 addressed to S.P, Ex. PW13/B was received, asking the CBI to collect the copy of recorded conversation in CD for investigation purposes. PW13 further deposed that in reference to this letter he had collected sealed CD mailer CC No. 21/2016; CBI Vs. Daya Ram Page No. 89 of 113 containing CD of the recorded conversation from CFSL. It has come in the deposition of PW13 that the CD received from CFSL was then opened by him on 09.12.2014 in the presence of the complainant Harbans Singh (PW4) and 02 independent witnesses Sh. Mohan Lal (PW10) and Sh. Santosh Kumar (PW11), when it was played and transcription of the recorded conversation in it was prepared vide Ex. PW4/J. There is no crossexamination of PW13 on these facts, which goes unrebutted.
136.On joint reading of testimony of PW12 DSP Sh. Atul Hajela, PW13 Inspector Ajit Singh and PW15 Sh. Deepak Kumar Tanwar, it is clearly established that only
04 sealed parcels were sent to CFSL vide letter dated 03.12.2014, Ex. PW12/A. Investigation copy of the recorded conversation in micro SD cards Q1 & Q2 was prepared by CFSL in a CD, which was received by PW13 on 08.12.2014. This CD was opened by PW13 in the presence of independent witnesses on 09.12.2014 and transcription was prepared vide memo, Ex. PW4/J (Colly). Nothing has come in the crossexamination of any of these witnesses to break the chain of custody of the sealed exhibits or to create any doubt that the CC No. 21/2016; CBI Vs. Daya Ram Page No. 90 of 113 exhibits were tampered at any stage.
137.In view of above evidence, deposition of PW15 that the sealed exhibits were received along with the copy of transcription on 03.12.2014, is factually incorrect. It can be safely inferred that copy of the transcript Ex. PW4/J was sent to CFSL only after 09.12.2014. However, it was required that Investigating Officers, PW13 and PW14 should have spoken about this. It was also required from the prosecution that when a contradictory fact about receipt of the transcript along with exhibits was introduced by PW15 during his deposition in the Court, he should have been reexamined on this fact to avoid any confusion. However, considering the entire evidence in this regard as discussed above, contradiction in the testimony of PW15 about transcript is inconsequential, which does not shake his credibility and his report, Ex. PW15/D.
138.It was also argued by the defence counsel that there is contradiction in the statements of witnesses as to when was the DVR switched on and who had switched off the DVR after the trap proceedings. I am unable to comprehend what difference would it make if the DVR was switched off by the complainant (PW4) or by PW8, CC No. 21/2016; CBI Vs. Daya Ram Page No. 91 of 113 until & unless something is brought on record to create doubt that it would have bearing on the credibility of the recording in the micro SD card (Q2). Any contradiction and inconsistency in the testimony of witnesses about the time of switching on the DVR would be inconsequential since electronic evidence on this fact will prevail, subject to the credibility of the evidence.
139.In Valsala (Supra), a case under NDPS Act, deposition of the police officer who had seized contraband was absolutely silent as to what he did with the seized material till it was produced in the Court. In these circumstances, it was held that it was doubtful whether same material was sent to Chemical Examiner that was seized. In the case in hand testimony of PW8, PW16 and PW12, clearly establish the custody and moment of the sealed exhibits Q1, Q2, S1 & DVR leaving no doubt that same exhibits were sent.
140.In view of testimony of PW15 and his report, Ex. PW 15/D, there is no reason to doubt the integrity of micro SD cards, Q1, Q2 & S1. Prosecution has established by way of evidence that recordings in them are neither edited nor doctored. It is also established that recordings in these micro SD cards was done through DVR (Ex.P3).
CC No. 21/2016; CBI Vs. Daya Ram Page No. 92 of 113 Evidentiary value of recorded conversation and speaker identification:
141.PW15 Sh. Deepak Kumar Tanwar, Principal Scientific Officer (Phy.), CFSL, CBI, New Delhi has deposed that there was 01 audio file in micro SD card Q1, which was marked by him as Ex.Q1(3)(D) and 03 audio files in micro SD card Q2, which were marked by him as Ex. Q 2(3)(D), Ex. Q2(4)(D) & Ex. Q2(5)(D). By auditory and voice spectrographic technique he had examined the questioned voice of accused Daya Ram in the audio files in micro SD cards Q1 and Q2, with respect to his specimen voice in micro SD card S1. On comparison after examination, on the basis of the linguistic/phonetics and other general spectographic parameters, PW15 found that questioned voices of Sh. Daya Ram in all the 04 audio files in micro SD cards Q1 & Q2 tallied with his specimen/sample voice in the micro SD card S1. Relevant portion of his report, Ex. PW15/D is :
........................................................................... ...........................................................................
8. RESULT OF EXAMINATION Regarding Query No. 1 (I) The auditory examination of questioned voices marked exhibits Q1(3)(D), Q2(3)(D), Q2(4) CC No. 21/2016; CBI Vs. Daya Ram Page No. 93 of 113 (D) & Q2(5)(D) and specimen voice of Shri Daya Ram marked exhibit S1(D) reveal that questioned voices marked exhibits Q1(3)(D), Q 2(3), Q2(4)(D) & Q2(5)(D) are similar to the specimen voice marked exhibit S1(D) in respect of their linguistic and phonetic features.
(ii) The voice spectrographic examination of questioned voice samples marked exhibits Q2(5) (D)(1), Q2(5)(D)(2), Q2(5)(D)(4), Q2(5)(D) (5), Q2(5)(D)(6), Q2(5)(D)(7) & Q2(5)(D) (8) and specimen voice samples marked exhibits S1(D)(1), S1(D)(2), S1(D)(3), S1(D)(4), S1(D)(5), S1(D)(6), S1(D)(7) & S1(D)(8) reveal that the questioned voice samples marked exhibits Q2(5)(D)(1), Q2(5)(D)(2), Q2(5)(D) (3), Q2(5)(D)(4), Q2(5)(D)(5), Q2(5)(D)(6), Q2(5)(D)(7) & Q2(5)(D)(8) are similar to specimen vice samples marked exhibits S1(D)(1), S1(D)(2), S1(D)(3), S1(D)(4), S1(D)(5), S1(D)(6), S1(D)(7) & S1(D)(8) respectively in respect of their formant frequencies distribution, intonation pattern, no. of formants and other general visual features in voice grams.
Hence, the voices marked exhibits Q1(3) (D), Q2(3)(D), Q2(4)(D) & Q2(5)(D) are the probable voice of the person (Shri Daya Ram) whose specimen voice is marked exhibit S1(D).
Regarding Query No. 2.......................................................................... ..........................................................................
Regarding Query No. 3.......................................................................... ..........................................................................
(emphasis supplied) CC No. 21/2016; CBI Vs. Daya Ram Page No. 94 of 113
142.Line of crossexamination of PW15 has been about his qualification and expertise besides percentage accuracy of voice identification by voice spectography technique, which according to PW15 is 95%. PW15 also explained that the expression "probable" has been used in his report for positive identification and that expression "probable" in his report means "positive" and does not mean "may be" or "may be not". It has come in the deposition of PW15 that his report, Ex. PW15/D is based on the examination conducted by him and denied the suggestion that he gave report under pressure of CBI. It has come in detail in deposition of PW15 about the procedure adopted by him for analysis, which is also mentioned in his report, Ex. PW15/D.
143.Defence counsel argued that complainant (PW4) has not supported the prosecution case about identification of voice of the accused in the questioned recorded conversations in Q1 & Q2 and PW7 Banay Singh Meena could not have identified voice of the accused in the recordings because he had never heard the recorded voice of the accused before this case. Hence recorded conversation cannot be relied. Reliance has been placed on "Ram Singh and Others Vs. Col. Ram Singh, AIR CC No. 21/2016; CBI Vs. Daya Ram Page No. 95 of 113 1986 Supreme Court 3" and "Nilesh Dinkar Paradkar Vs. State of Maharashtra, (2011) 4 Supreme Court Cases 143". Sr. PP for CBI argued that voice of the accused has been duly identified by PW7 Banay Singh Meena, during trial. It was argued that identification of voice of accused by PW7 Banay Singh Meena, meets the standards laid down by the Supreme Court.
144.In Ram Singh (Supra), the Apex Court laid down the conditions for admissibility of tape recorded statement. Relevant para is as under:
32. Thus, so far as this Court is concerned the conditions for admissibility of a taperecorded statement may be stated as follows:
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker.
Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the taperecorded statement has to be proved by the maker of the record by satisfactory evidence -- direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
CC No. 21/2016; CBI Vs. Daya Ram Page No. 96 of 113 (4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody. (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
145.In Nilesh Dinkar Paradkar (Supra), the Apex Court has dealt with the evidence of voice identification, its proof and reliability. Relevant para is :
31. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.
(emphasis supplied)
146.Relevancy and admissibility of tape recorded conversation was examined by Hon'ble Supreme Court in "R. M. Malkani v. State of Maharashtra AIR 1973 Supreme Court 157" wherein it was held :
23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of CC No. 21/2016; CBI Vs. Daya Ram Page No. 97 of 113 the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the taperecord. A contemporaneous taperecord of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae.
It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act...................................................... ................................................................................ ................................................................................
(emphasis supplied)
26. ...........................................Just as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secure scrupulous conduct and behaviour on behalf of the Police. The reason is that the Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge...................................................................... .............................................................................
(emphasis supplied)
27. When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. The fact that tape recorded conversation can be altered is also borne in mind by the Court while admitting it in evidence.
(emphasis supplied)
147.In "Mahabir Prasad Verma V. Dr. Surinder Kaur, (1982) 2 SCC 258", it was held by the Apex Court that CC No. 21/2016; CBI Vs. Daya Ram Page No. 98 of 113 tape recorded evidence can only be used for corroboration, as under:
22. ..........................................................................
.............................Taperecorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the taperecorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady; and in the absence of any such conversation, the taperecorded conversation could be no proper evidence...................................... ................................................................................ ................................................................................
(emphasis supplied)
148.In "Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra, (1976) 2 SCC 17", on the aspect of speaker identification, it was held by the Hon'ble Supreme Court that voice of the person alleged to be speaking must be duly identified by either the maker of the record or by any other person who knows the speaker. Relevant para is as under:
19. We think that the High Court was quite right in holding that the taperecords of speeches were 'documents', as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
(a) The voice of the person alleged to be speaking must be duly identified by the maker CC No. 21/2016; CBI Vs. Daya Ram Page No. 99 of 113 of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subjectmatter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."
(emphasis supplied)
149.Legal position with respect to the evidentiary value of electronic evidence and speaker identification on the basis of above judgments is that precautions are required to be taken while placing reliance on the electronic evidence because of possibility of tampering. However, once it is proved that recorded conversation proved is not tampered or edited or doctored, it is as good as real evidence, which can be relied upon as corroborative evidence of conversation.
150.Micro SD card Q1 (Ex. PW4/H) was played in a laptop during deposition of PW4. It contained 03 files, file no. 141127_001 - introductory voice of Mohan Lal (PW10), file no. 141127_002 - telephonic ring and file no. 141127_003 - conversation between accused and the complainant. PW4 deposed that he is unable to identify any of the voices.
151.Though complainant Harbans Singh (PW4) did not CC No. 21/2016; CBI Vs. Daya Ram Page No. 100 of 113 identify the voice of the accused during trial and has turned hostile on this point, but in his examination in chief, it has come that during verification of his complaint against accused Daya Ram at CBI office, he had made a mobile phone call to the accused, which was simultaneously recorded. It has also come in his examinationinchief that during trap proceedings also, he had mobile phone conversation with the accused and admitted during crossexamination by Sr. PP for CBI that this conversation with the accused was also recorded in an instrument kept in the car, which he had handed over to the CBI after the proceedings.
152.Besides the testimony of PW4 on the recording of conversation between him and the accused, it has been independently proved by the witnesses SI Servendra Singh (PW8), Inspector Anand Sarup (PW16) and independent witnesses Sh. Mohan Lal (PW10) & Sh. Santosh Kumar (PW11) that conversation between the complainant and the accused during the verification and trap proceedings were recorded in the micro SD cards Q1 & Q2 respectively. Nothing has come in the cross examination of any of the witnesses to create any doubt about this fact.
CC No. 21/2016; CBI Vs. Daya Ram Page No. 101 of 113
153.Complainant as PW4 identified his signatures on the voice identificationcumtranscription memo Ex. PW4/J dated 09.12.2014, though he deposed that he never went to CBI after the trap proceedings. But PW4 has not offered any explanation about signing the document Ex. PW4/J on 09.12.2014, whereas his presence at CBI office on 09.12.2014 has been proved by the IO (PW13) and independent witnesses Sh. Mohan Lal (PW10) & Sh. Santosh Kumar (PW11).
154.During investigation, voice of the accused in the recorded conversations in Q1 & Q2 was identified by PW7 Inspector Banay Singh Meena, vide voice identification memo dated 27.01.2015, Ex. PW5/A (D26). Micro SD cards Q1 (Ex. PW4/H) & Q2 (Ex. PW7/M) were played in a laptop during his testimony in the Court and he identified the voice of the accused in one file of micro SD card Q1 and in 02 files of micro SD card Q2, by saying that one of the voices in the conversation seems to be of accused Daya Ram. PW7 identified his signatures on the voice identification memo dated 27.01.2015, Ex. PW5/A. He also identified his signatures on the voice identificationcum transcription memo Ex. PW5/B and deposed that it was CC No. 21/2016; CBI Vs. Daya Ram Page No. 102 of 113 the correct transcription of the recorded conversation, which was heard by him in the Court, containing voice of the accused. Nothing has come in the cross examination of this witness to shake his testimony on these facts.
155.Since recorded conversation in Exhibit Q1 and Exhibit Q2, as per the prosecution case include mobile phone conversations between the accused and the complaint, electronic evidence about users of the mobile phones at the relevant time and place is relevant.
156.There is no dispute that on 27.11.2014, accused was using the mobile no. 9654660038 and Ex. PW3/C is its CDR of that date. It is also not disputed that on 27.11.2014, complainant was using mobile phone no. 8556090565 and Ex. PW3/G is its CDR of that date. CDRs show that there were 04 calls between the accused and the complainant on 27.11.2014. Second call was at about 4.58 PM, which was made by the complainant to the accused during verification proceedings, by keeping his mobile phone on loudspeaker mode, a fact which has been proved by the prosecution witnesses PW8 and PW10. Third call between the accused and the complainant was at 8.28 PM, when complainant and the CC No. 21/2016; CBI Vs. Daya Ram Page No. 103 of 113 trap team had reached Moti Bagh Gurudwara and complainant had asked the accused to reach here. Fourth call was at about 8.40 PM when accused had called the complainant after reaching Gurudwara to inform that he had reached. At the time of third & fourth call, mobile phone of the complainant was on loudspeaker mode and the fact about these calls is proved by the independent witnesses and CBI officials. CDRs show that at the time of fourth call, tower location of mobile phones used by the accused and the complainant was same, which proves their presence at the same spot.
157.Accused while testifying as DW3 did not dispute the above calls on 27.11.2014 at the given time between him and the phone no. 8556090565, but claimed that those calls were with Rajinder Bisht and not with the complainant (PW4). Since accused introduced Rajinder Bisht as the user of mobile no. 8556090565, onus was on him to prove this fact, which he failed to do and is contradicted by the evidence on record that mobile phone no. 8556090565 was used by the complainant (PW4) at the relevant and no one else. Evidence on record has established that on 27.11.2014, mobile phone CC No. 21/2016; CBI Vs. Daya Ram Page No. 104 of 113 calls between the accused and the complainant during verification and trap proceedings were simultaneously recorded in the Micro SD cards Q1 (Ex. PW4/H) & Q2 (Ex. PW7/M) through DVR, integrity of which has been proved.
158.Above evidence sufficiently establish that 02 voices in the recorded conversation were of accused and the complainant, ruling out any other voice. Since accused had worked under PW7 Banay Singh Meena at PS Chanakya Puri and so was familiar with his voice. Hence PW7 was competent to identify the voice of accused. Just because PW7 had not heard the recorded voice of accused before this case, is no reason to disbelieve him. In the light of other evidence on record, deposition of PW7 Banay Singh Meena that one of the voices appeared to be of the accused is sufficient to seal the identity of the questioned voice of the accused.
159.In view of testimony of the witnesses, CDRs of the mobile phones used by the accused and complainant on 27.11.2014 and the expert report Ex. PW15/D, I am of the opinion that prosecution has proved that voice attributed to the accused in Micro SD cards Q1 and Q2 is of the accused.
CC No. 21/2016; CBI Vs. Daya Ram Page No. 105 of 113 What can be heard in the recorded conversation
160. PW13 Inspector Ajit Kumar is the maker of the transcript, Ex. PW4/J, of the alleged recorded conversation in Q1 (Ex. PW4/H) & Q2 (Ex. PW7/M) between the accused and the complainant (PW4) during verification and trap proceedings and it is reproduced as under:
C stands for complainant Harbans Singh (PW4) SI stands for accused Daya Ram UN stands for independent witness Mohan Lal (PW10) Exhibit Q1 (Micro SD card Ex. PW4/H) 141127 - 003 SI - Hello.
C - Sir, namaskar ji. Sir main airport par dedh baje chal pada tha. Sardar ko chhodne jana tha.
SI - Haan.
C - Paise to taiyaar hain chaar mein se 20 hazar kam hain par chalo baad mein de denge.
SI - Kitne baje pahunch jaaoge C - Main saade 6 ya 7 ke kareeb aa jaaunga SI - (unclear) C - Nahi, nahi, abhi shaam ko jaana nahi, jaana nahi ji meri bhatiji ki shadi hai SI - Abhi aa rahe ho C - Pakka aa raha hoon. Saat ya sawa saat baje enter karke phone kar deta hoon.
SI - (unclear) C - Dedh baje chal pada tha. Kisi ke sath aa gaya tha ji main. SI - Chalo theek hai C - Main aa jaunga ji, fir kahan se aakar phone karun ji SI - Airport, Dhaula Kuan aakar C - Theek hai sir, main pahunch kar phone karta hoon. Theek hai CC No. 21/2016; CBI Vs. Daya Ram Page No. 106 of 113 sir thank you.
Exhibit Q2 (Micro SD card Ex. PW7/M) 141127002 SI - Kahan pahunch gaye.
C - Sir vo gurudwara sahib ji, main apna motibagh wale ke pas. SI - Acha Moti Bagh aa gaye. To theek hai. Moti Bagh se seedhe Chanakya Puri nikal jaao. Moti Bagh nahi hai, Moti Bagh Gurudwara.
C - Vo kya hai na sir, vo gaadi to mere ko chhod kar chali gayi hai airport. Aap aa jao idhar tab tak main mathha tek leta hoon. SI - Kya ho gaya C - Main kya ji mathha tek leta hoon. Aap aa jao idhar. Kitni door aa gaye.
SI - Moti Bagh ke Gurudware par ho aap.
C - Haan ji, haan ji Phone kar dena, bahar aa jaunga ji, mathha tek kar. SI - Aur kaun hai saath mein.
C - Ji main akele hi hoon. Vo gaadi wale to chale gaye airport mujhe chhodkar.
SI - Moti Bagh mein Gurudwara, kitne Gurudware hain Moti Bagh mein. Ek hi hai na.
C - Haan ji, vahi jo Main Road par hai SI - Theek hai main dekhta hoon C - Theek hai sir 141127004 C - Haan ji, sir.
SI - Gate par hoon.
C - Gate par, aata hoon sir.
141127005 Gurudware ki aarti C - Janba, aur sir kya haal hain. Ha, ha, ha. Thand bahut kar di. Aur theek ho ji. Aa jao ji. Idhar hi aa jao. Aap gaadi aao udhar lekar. Apna hi munda hai. Vo Chhod kar aaya tha na airport par.
Vahi munda hai. Apna taxi.
CC No. 21/2016; CBI Vs. Daya Ram Page No. 107 of 113 SI - Taxi. Ye kaun hai.
C - Mujhe pata nahi. Main to mathha tek kar aaya. Haan ji, andar hi aa jao gaadi me.
SI - Ye kaun hai. Pata nahi. Mere ko nahi pata kaun hai ji. SI - Vo kaun hai jo tumhare sath khada tha banda. Vo kaun tha. C - Pata nahi ji. Munda aaya hai apni gaadi hai. Betho do minute. SI - Yahi hai paas main hi hai. (unclear) C - Aur theek hai sahab ji badiya.
SI - Kaun hain ye. Aa ja idhar aa ja.
C - Hamare ko nahi pata ji. Chalo sir udhar le lo. C - Mujhe doubt ho raha hai. Police wale hain. SI - Thane chal na. Yahan se thana thodi door hai. Yahan se thodi door hai.
C - Hai ji.
SI - Thana, thodi door hai. Yahan se thodi door hai. C - Haan ji.
SI - Aage thodi door airport hai.
C - Acha ji.
SI - Idhar ki taraf wo hai. Apna kya bolte hain. Agla AIMS nahi hai. (coughing) C - Paise gaadi main beth ke leve ji. Aage le aau gaadi. Paise udhar pade hain. Le aaun jaa ke. Usme se kuch to mere paas hain. SI - Ye kaun hai. Ye fir aa gaye ?
C - Main nahi janta kisi ko.
SI - Ae C - Main nahi jaanta kisi ko.
SI - Kaun hai ye.
C - Pata nahi, pooch lo kaun hai. Poocho kaun hai. SI - Kaun hai aap log ?
UN - Kya ?
SI - Aap log kahan se hain ?
C Vo pooch rahe hain kaha se ho ? Kisko dhoond rahe ho. UN - Main to road par jaa raha hoon.
SI - Ja ja C - Ki honda hai. (unclear) SI - Ye log kaun hai fir piche lag gaye.
C ...............(abusing), tum gaadi ke paise to nikalo. Main bhi nikalu. Wahi pegg pilaan doon.
SI - Pegg kidhar se layega.
C - There was soovi laavenda. Ek pegg dilwa do.
CC No. 21/2016; CBI Vs. Daya Ram Page No. 108 of 113 SI - Aaj disc band hai. 45 disc hain aaj sab band hai. C - Gaadi le aao. Fir kisko koi fayeda nahi hai. SI - Kitne hai.
C - Chaar hain, 15 kam, 15000 fir kabhi de. Aatejaate de doonga aapko.
SI ....... (abusing) Ranjan ka baap, High Court se dismiss ho gai (unclear) C - Aa ja. Gaadi khol de. Gaadi khol de mudeya. Aao chhod ke aao rishtedar hain ji. Aao chhod ke aao airport. Mere sath hain ji. Aao bethe. Khol dena. (unclear).
C - Aa jao sir. Aao mere mard. ...... (abusing) log bhi na ji, Delhi ka hai bhi sala chakkar hai. Delhi mein hai bhi chakkar hai. Koi lifafa hai kya ?
SI - Kuch nahi hai, lifafa mere pas. Diggi hai usme ger denge ya tumhare paas nahi hai koi bag ? Ye de mujhe la. C - 50 hai. ................. kaise da. Local mein hai. Bahar nikal gaya munda.
SI - Baad mein kar liyo ise.
C - Main bula raha hoon.
SI - Kisko C - Chaabi bagerah hai na iske paas. Paisa pada hai udhar. SI - Driver ko, driver ko kya ?
C - Haan ji, haan ji SI - Vo raha driver C - O khol yaar SI - Uska baap aa gaya to chargesheet agle mahine bana doonga. C - Le yaar chaabi de uthe.
C - ye kaun aa gaye. Ye kaun aa gaye. Kaun aa gaye. Paise ye gaya ................. Gaadi ka shor.
(emphasis supplied)
161. Credibility of the tape recorded conversation in the micro SD card Q1 (Ex. PW4/H) and micro SD card Q2 (Ex. PW7/M) has been upheld in the earlier part of the judgment. Transcript (Ex. PW4/J) has been proved by PW13 and its authenticity has been proved by PW7 in the Court as Ex. PW5/B, which is the copy of Ex. PW CC No. 21/2016; CBI Vs. Daya Ram Page No. 109 of 113 4/J. This Court has come to the conclusion that the recorded conversations include voice of the accused. In conversation between accused and the complainant, recorded in micro SD card Q1 (Ex. PW4/H)(file no. 141127003), during verification proceedings, complainant tells the accused that money was ready and that Rs. 20,000/ was less from the amount which would be given later. Accused asks the complainant when would he reach and there is a talk about the meeting place when accused tells the complainant to speak to him after reaching Airport Dhaula Kuan.
162.Transcript of the recorded conversation between accused and the complainant in Q2, in file no. 141127003 shows, the accused is asking the complainant where has he reached. Conversation clearly gives an impression that complainant is on the move who has come from outstation and complainant is persuading the accused to come to Moti Bagh Gurudwara. File No. 141127005 of Q2 in the transcript of the recorded conversation between accused and the complainant is about their conversation on meeting at Moti Bagh Gurudwara in which accused is sounding over apprehensive about people around. Complainant is asking the accused to CC No. 21/2016; CBI Vs. Daya Ram Page No. 110 of 113 take money after sitting in the car. At one place accused is asking the shadow witness PW10 Sh. Mohan Lal, who as per the prosecution story was instructed to stay near to over hear conversation and watch the bribe transaction, as to who he was and from where has he come, to which the shadow witness (PW10) responded that he was going on the road. At one place accused asks who these people were, who were after them, indicating his restlessness about movement of the shadow witness around him. The transcript shows that when accused asks the complainant - "how much", complainant replies that - "there is four and 15 is less" and that "15000 he will give subsequently". Thereafter there is a casual talk between the complainant and the accused including cuss words and then complainant asks the accused if he has any envelope, to which accused denies and says that it can be kept in diggi and also asks the complainant if he has any bag.
163. This conversation has to be read in the background of a criminal case against the complainant which was being investigated by the accused, who despite an order for arrest of the complainant, had not arrested him and rather had visited him at Chandigarh and was issuing CC No. 21/2016; CBI Vs. Daya Ram Page No. 111 of 113 notices to him. The demand of bribe cannot be expected to be in a scripted text. Clear intention of demand is to be assessed and inferred in the over all facts and circumstances. The transcript of the recorded conversation in Q1 & Q2 is very clear about talk of money between the accused and the complainant. There is also a talk of fixing a place - Moti Bagh Gurudwara, where the bribe money was given by the complainant to the accused on his demand. Therefore the content of the recorded conversation in Q1 & Q2, corroborates the deposition of prosecution witnesses about demand and acceptance of bribe by the accused from the complainant.
Conclusion
164. In view of the evidence on record and above discussion, prosecution has succeeded in proving beyond reasonable doubts that on and before 27.11.2014, accused SI Daya Ram had demanded Rs. 4 lacs as bribe from the complainant Harbans Singh (PW4) to exonerate the complainant from a criminal case registered at PS Chanakya Puri vide FIR No. 82/2014 which was being investigated by the accused and in pursuance of the said CC No. 21/2016; CBI Vs. Daya Ram Page No. 112 of 113 demand, he agreed to accept Rs. 50,000/ as part payment of the bribe amount and was caught red handed at Moti Bagh Gurudwara on 27.11.2014 after about 8.45 PM while accepting it. Prosecution has successfully proved beyond reasonable doubts that accused Daya Ram while posted as SubInspector at PS Chanakya Puri, a public servant, obtained illegal gratification of Rs. 50,000/ from the complainant as a motive or reward to exonerate the complainant from the criminal case.
165. Accused SI Daya Ram is thus held guilty for committing the offences punishable under Section 7 and 13(2) r/w 13(1)(d) of the P.C. Act and is convicted accordingly.
166. Convict shall be heard on point of sentence on 21.10.2019.
Announced in the open Court (Santosh Snehi Mann) th on 18 October, 2019 Special Judge (PC Act), CBI08, Rouse Avenue Courts Complex, New Delhi.
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