Delhi District Court
State vs . Mahipal Singh Page 1 Of 18 on 17 March, 2015
1
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
STATE
Versus
Mahipal Singh
S/o Ram Singh Yadav
R/o Vill.Darbarpur,
PO Ajeraka,
DistrictAlwar, Rajasthan
Corruption Case No. : 18/2013
FIR No. : 37/2008
Case Identification No. : 02401R0391682013
Police Station : Anti Corruption Branch
Under Section : 7 &13 of Prevention of
Corruption Act, 1988
r/w/sec.384/120B of IPC
Date of Institution : 31.07.2013
Date of reserving the Order : 13.03.2015
Date of pronouncing the Order :17.03.2015
JUDGMENT
1 It is the case of the prosecution that a vehicle bearing registration No.DL1LC9481 owned by complainant Shamshad was detained at Railway Protection Force (RPF) PSTughlakabad Railway Station. Constable Mahipal Singh informed the complainant that his vehicle had been found loaded with stolen goods, but, the matter can be State Vs. Mahipal Singh Page 1 of 18 2 hushed up in case Rs.30,000/ as bribe is paid to him. On the request of the complainant, Ct. Mahipal Singh took the complainant to the office of his superior namely Ajeet Singh. After a lot of request and persuasion, Ajeet Singh settled for a bribe of Rs.20,000/ and asked the complainant to pay the same to Ct. Mahipal Singh. Complainant paid Rs. 5,000/ on that day to Ct. Mahipal Singh. Next day i.e. on 07.11.2008 complainant went to PSACB to lodge a complaint, where he was given a Digital Voice Recorder to record the conversation regarding demand of bribe, for satisfaction of correctness of his complaint. On 07.11.2008, conversation with Mahipal Singh regarding demand was recorded and on the same day later in the night Rs.10,000/ towards bribe were paid to Mahipal Singh. On 11.11.2008 conversation between Ajeet Singh and the complainant were recorded wherein he confirmed receipt of Rs. 15,000/ towards bribe, through Ct. Mahipal Singh. Subsequently on 15.11.2008 balance amount of Rs. 5,000/ was demanded by Ajeet Singh but complainant paid only Rs. 4,500/.
2 During investigation, both the accused persons were brought to PSACB and confronted with the audiovideo recordings. Both of them admitted the correctness of recordings. They were arrested. SI Rajbir Singh & ASI Ravinder of RPF PSTughlakabad were joined in the investigation. They identified the voices and faces of accused persons in the audiovideo recordings. The Micro SD cards of State Vs. Mahipal Singh Page 2 of 18 3 the recorded conversation dated 11.11.2008 & 15.11.2008 and the CD of recording dated 07.11.2008 were sent to FSL, which reported the recordings to be continuous and untampered. Prosecution sanction for accused persons were sought. However, sanction to prosecute accused Ajeet Singh was declined by the competent authority. Finding sufficient material against accused Mahipal Singh, he was charge sheeted. 3 Chalan was filed in the court on 31.07.2013. Accused Mahipal Singh was summoned to face trial. After compliance of provisions of sec.207 Cr.P.C., he was heard on Charge. Vide order dated 03.12.2013, accused Mahipal Singh was charged for offence punishable u/sec.120B of IPC, u/sec.7 of the Prevention of Corruption Act, 1988 (hereinafter called as 'the PC Act') r/w/sec.120B of IPC and u/sec.13 of the PC Act r/w/sec.120B of IPC. Accused pleaded not guilty and claimed trial.
4.1 Prosecution, in support of its case, examined 17 witnesses. However, prosecution evidence was closed by the order of the court, as PW Islamuddin was found to be physically incapable of deposing before the court.
4.2 Complainant Shamshad (PW10) identified his complaint Ex.PW10/A and deposed about the demand and acceptance of bribe by State Vs. Mahipal Singh Page 3 of 18 4 accused Mahipal Singh, in conspiracy with Inspector Ajit Singh. He also deposed having handed over the recorded conversation contained in Micro SD cards, which were seized by the IO. Anand Kumar (PW12) was a panch witness to the seizure of Micro SD cards produced by the complainant.
4.3 SI Rajbir Singh (PW14)of RPF PSTughlakabad cited as a witness to the identification of the accused persons in the audiovideo recording turned hostile. Retired ASI Ravi Karan (PW15) of RPF, PS Tughlakabad also cited and examined as witness to the identification of accused in the audiovideo recording turned hostile. However, Ashok Kumar Verma (PW11), who was a panch witness to the proceedings dated 22.11.2008, when ASI Ravi Karan had identified the accused persons in CD, proved the proceedings to have been genuinely conducted. Raj Dhan (PW13) is a panch witness to the proceedings, wherein, accused gave their consent for voice sample. 4.4 HC Jitender Singh (PW8) was the MHC (M) at PSCivil Lines. He has deposed that Inspector Avinash Sharma deposited the case property with him on 19.11.2008 & 28.11.2008. Two CDs were sent by him to FSL on 25.05.2009 through Ct. Ravinder. He again handed over one sealed Pulanda to Constable Ravinder on 23.07.2009. Ct. Ravinder Singh (PW7) has deposed that on 30.06.2009, he collected the State Vs. Mahipal Singh Page 4 of 18 5 exhibits from MHC (M) and brought the same to FSL but could not deposit the same on that day, as he was late. ExSI Karnail Singh (PW13) has been examined by the prosecution to prove the CDs, prepared by him of the audiovideo recording conducted by complainant. Dr. C.P.Singh (PW1) had examined CDs and Memory Cards at FSL, Rohini. He proved his report Ex.PW1/A. 4.5 SI K.L.Meena (PW4) was the Duty Officer at PSACB. He has proved FIR Ex.PW4/A to have been recorded by him on 18.11.2008. Constable Anil Kumar (PW6) had carried the rukka and copy of FIR and handed over the same to Inspector Avinash Sharma at RPF, PS Tughlakabad.
4.6 ASI Fateh Chand (PW5), RPF, PSTughlakabad proved DD No.40 dated 06.11.2008, vide which the vehicle of complainant had been impounded. D.R.Meena (PW2) - Security Commissioner, RPF proved grant of sanction to prosecute accused Ct. Mahipal. 4.7 ExInspector Avinash Sharma (PW17) was the first investigating officer. He has deposed about apprehending accused Ajeet Singh (not charge sheeted) and Mahipal Singh. He has further deposed that both the accused persons on being apprehended were brought to PSACB, where CDs containing recorded conversation were played to them in the presence of panch witness. Both the accused persons State Vs. Mahipal Singh Page 5 of 18 6 admitted their guilt. They were arrested. He has further deposed that the voice and faces of accused persons were got identified by SI Rajbir & ASI Ravi Karan of RPF. He has proved seizure of the Memory Cards handed over by the complainant to him. ACP Dharambir Singh (PW9) remained part IO from 30.03.2009 till July2009. He had sent the CD & Memory Cards to FSL for examination. He also get collected the FSL report. Inspector B.K.Singh (PW16) was the final IO. He collected documents regarding seizure of complainant's truck from RPF, PS Tughlakabad and had filed the Challan.
5 Incriminating evidence was put to the accused and his statement u/sec.313 Cr.P.C. was recorded. He stated that the complainant's truck was not impounded by him. He denied any conspiracy between him and Inspector Ajeet Singh. He denied having demanded or acceptance/ bribe from the complainant. He denied any conversation having been recorded on 07.11.2008 with complainant or any other person. He also denied the complainant having met Inspector Ajeet Singh or Inspector Ajeet Singh acknowledging receipt of Rs. 19,500/ as bribe. He disputed the authenticity of audiovideo recording and the FSL Report. He stated that he had been falsely implicated as complainant's truck had been impounded and its driver had been arrested for having been found in possession of stolen Railway property. Complainant was annoyed for this reason and filed the false complaint. State Vs. Mahipal Singh Page 6 of 18 7 6 Accused sought opportunity to lead defence evidence and examined two witnesses. W/HC Sita Kanojia (DW1) proved DD nos.16, 29 & 40 of RPF, PSTughlakabad. Ct. Prem Singh Rathore (DW2) was a member of the team, lead by Inspector Ajeet Singh, who went to Village Tehkhand for raid. He has deposed that vehicle of the complainant and its driver were found in possession of stolen Railway goods & they were brought to PSTughlakabad, RPF. Accused was with him through out the raid and the witness had left the Police Station at about 07:45 PM. No private person had met the accused on that day.
7.1 Sh.B.B.Bhasin, Ld. Addl. PP for the State has argued that though, complainant Shamshad (PW10) is the solitary witness examined by the prosecution; yet, his statement can not be discarded only for want of corroboration. Prosecution is justified in not having examined his friends Pappu & Islamuddin; as Pappu had expired & Islamuddin had become incapable of being examined. The testimony of Shamshad (PW10) is corroborated by the circumstantial evidence and the recorded conversation dated 11.11.2008 & 15.11.2008. It is submitted that the recording dated 07.11.2008 may be hit by the Provisions of sec.65B of the Indian Evidence Act, but the remaining electronic record is admissible u/sec.64 of the Indian Evidence Act and is relevant as it corroborates complainant's oral testimony. Prosecution has proved that complainant's truck had been impounded and was in State Vs. Mahipal Singh Page 7 of 18 8 custody of official of RPF, PSTughlakabad. Complainant Shamshad (PW10) has deposed that on reaching Police Station, accused demanded bribe from him, which was confirmed by Inspector Ajit Singh. Part of the demanded amount was paid to the accused Mahipal on the same day and some amount on the next day. Damand & acceptance of part bribe amount by Ct. Mahipal is corroborated in the recording dated 15.11.2008 between complainant & Inspector Ajeet Singh. Conspiracy between Ajeet Singh & Mahipal can also be gathered from the recorded conversations dated 11.11.2008 & 15.11.2008. Complainant's oral testimony as PW10 has no reasons to be disbelieved, wherein, he has deposed about the conspiracy between the accused persons for demand & acceptance of bribe.
7.2 Sh.H.R.Dhamija, ld. defence counsel has strongly contested the prosecution case. It is submitted that the charge u/sec.120B of IPC can not be established in the absence of second accused, who is not facing trial. There is no direct evidence of any meeting between the accused and Inspector Ajeet Singh. There is also no direct evidence of any conspiracy between the two. There is no video recording of GC notes having been handed over to accused Mahipal. It is next argued that the complainant's story of release of vehicle is an imaginary story. Complainant, being a transporter of more than 20 years experience, can be presumed to know that there was no power State Vs. Mahipal Singh Page 8 of 18 9 with the accused to release the vehicle. It was only the court, which could have granted Superdari of vehicle to the complainant. 7.3 It is next argued that prosecution case of handing over of bribe to the accused on 06.11.2008 by the complainant is disproved by the complainant in his own previously recorded statement. During an enquiry by Inspector Ugersen of RPF complainant deposed that he was at Bareily between 05.11.2008 to 07.11.2008. The complainant's testimony before this court, of having met the accused on 06.11.2008 and handing over money to him on the same day is, thus, proved to be a blatant lie. It is further argued that the electronic record of recorded conversation dated 07.11.2008 is hit by the Provisions of sec.65B of the Indian Evidence Act, as neither the original recording nor certificate u/sec.65B of Indian Evidence Act is available. Similarly, the recorded conversation dated 11.11.2008 is also not admissible in view of the original having not been examined by FSL. Moreover, the recorded conversation dated 15.11.2008 can also not be read in evidence as there is no evidence of the recording having been kept and transported in safe custody to the FSL. It is also argued that the competent authority D.R.Meena (PW2) had initially declined grant of sanction to prosecute the accused Mahipal, which was subsequently granted by him, on obtaining his signatures by the IO on a proforma sanction. State Vs. Mahipal Singh Page 9 of 18 10 7.4 Sh.Dhamija has relied upon the law laid down in Sanjaysinh Ramrao Chavan Vs. Dattatray Galabrao Phalke & Ors. reported as I (2015) SLT 436 and Surender Singh Vs. State (NCT of Delhi) reported as Crl. A. 684 of 2008 decided on 16.10.2014. 8 .1 I have heard Ld. Addl. PP for the State & Ld. defence counsel for the accused Mahipal Singh and with their assistance perused the evidence on record. On the basis of evidence on record and the arguments raised, prosecution case needs to be tested on the strength of statement of complainant Shamshad (PW10) and corroborating circumstances.
8.2 I shall first deal with the circumstantial & indirect evidence, relied upon by the prosecution. Prosecution in the present case has relied upon electronic evidence in the shape of Audio recordings of conversations between the accused, complainant, complainant's friend and Inspector Ajit Singh (not charge sheeted). First Audio recording is stated to have been made on 7.11.08 between accused Mahipal and friends of complainant namely Pappu and Islamuddin. It is the admitted case of the prosecution that the original recording on the digital voice recorder was not retained and CD was prepared of this recording by Karnail Singh (PW3). No certificate U/s 65 (B) of the State Vs. Mahipal Singh Page 10 of 18 11 Indian Evidence Act was issued by Karnail Singh about the contents transferred by him from Digital Voice Recorder to the CD. In view of settled law in Anvar P.V. Vs. P.K.Basheer reported as Manu/SC/0834/2014's case the Audio recording on 7.11.08 and its transcript Ex. PW17/D have no evidentiary value and are summarily rejected.
8.3 Audio recording dated 11.11.08 of conversation between Inspector Ajit Singh (not charge sheeted) & Islamuddin and its transcript Ex.PW17/E have been relied upon by the prosecution to prove the charge of conspiracy between accused Mahipal and accused Inspector Ajit Singh. Similarly, Audio recording dated 15.11.08 of conversation between Inspector Ajit Singh and complainant Shamshad and its transcript Ex.PW17/F have also been relied upon by the prosecution to establish conspiracy between the accused persons. Fortunately for prosecution, originally stored recordings dated 11.11.2008 & 15.11.2008 in Micro SD cards were available and sent to FSL for analysis. However, the conversation dated 11.11.08 could not be analysed at the FSL and the Report Ex.PW1/A in para (4) of the final analysis records that the audio files were in different recording formats and 'in the absence of recording devices the same were incapable of analysis'. Thus rendering Audio recording of conversation dated 11.11.08 and its transcript, of no evidentiary value. The third Audio recording on 15.11.08 between the State Vs. Mahipal Singh Page 11 of 18 12 complainant and Inspector Ajit Singh has been opined by Dr. C.P Singh (PW1) in his report Ex.PW1/A, to be unaltered and unimpeached. However, Ld. defence Counsel has successfully demonstrated that even this Audio recording or its transcript is not beyond suspicion. 8.4 It is pointed out by Sh. Dhamija that there is no link evidence to establish the integrity of storage device, during the period it remained in Malkhana or its transit from Malkhana to the FSL. HC Jitender Singh (PW8) incharge Malkhana PSCivil Lines, has proved the relevant extract from Register no. 19, regarding deposit of case property. He has proved entry at serial no. 68/788 which records deposit of two CDs and two Micro SD cards containing the recorded conversation dated 11.1108 and 15.1108. He has further proved entry dated 25.05.09 whereby two CDs were handed over to Ct. Ravinder for deposit in the FSL. He has further proved entry dated 23.07.09 regarding sending one sealed Pulanda to FSL Rohini through Ct. Ravinder. He further proved Road Certificates dated 25.05.09 and 23.07.09 regarding the aforesaid articles having been sent to FSL on 25.05.09 and 23.07.09. On cross examination he admitted that there was an overwriting as regards the date of 25.05.09 in the malkhana register. He volunteered to state that the Road Certificate was issued on 25.05.09 but the exhibits were received at FSL on 23.07.09.
State Vs. Mahipal Singh Page 12 of 18 13 8.5 It may be noticed that this witness whose testimony is extremely important as regards the integrity of case property, omitted to depose that case property remained intact and untampered, so long as it remained in his custody. Sh. Dhamija then referred to FSL report Ex.PW1/A, which records the exhibits to have been received in the laboratory on 25.05.09 and 23.07.09 through Ct. Ravinder Singh. Then referring to the testimony of Ct. Ravinder Singh (PW7) it is pointed out that the witness has not deposed having carried the exhibits to FSL Rohini on 25.05.09 or on 23.07.09. The witness has rather deposed having carried the exhibits to FSL Rohini on 30.06.09. It is thus argued by Sh. Dhamija that there is total lack of link evidence, for transporting the storage devices from malkhana to FSL Rohini. In the absence of any carrier of exhibits from malkhana to FSL, stating that he carried the exhibits to laboratory & during the period of transit the integrity of exhibits was maintained; a doubt is created regarding its integrity. This fear or suspicion is further amplified, when the malkhana incharge does not depose that the articles remained safe in his custody at the malkhana. Sh. Dhamija, therefore, argued that the conversation dated 15.11.08 between complainant and Inspector Mahipal cannot be read in evidence. This court finds no reasons to reject this argument of Sh. Dhamija, as he has clearly demonstrated the possibility of case property having been tempered with. The accused accordingly draws benefit of State Vs. Mahipal Singh Page 13 of 18 14 doubt on this count. The circumstantial evidence or indirect evidence, thus, relied upon by the prosecution to establish conspiracy between accused Mahipal & Inspector Ajit is rendered inadmissible or doubtful. 9.1 I shall now deal with the direct evidence relied upon by the prosecution. Shamshad (PW10) has deposed that on 06.11.2008 he received a call from his driver Shahid informing him that his truck bearing registration number DL 1 LC 9481 had been taken away to RPF PS Tuglaqabad by Ct. Mahipal. He along with his friends Pappu and Islamuddin went to PSTuglaqabad, where they met Ct. Mahipal who demanded Rs.30,000/ as bribe for releasing the vehicle and the driver. They, then, met Inspector Ajit Singh who settled the amount at Rs. 20,000/ and directed the same to be paid to Ct. Mahipal. They paid Rs. 5000/ to accused Mahipal on the same day, at that very time and Rs. 10,000/were paid to accused Mahipal on the same day, later in the night. On being cross examined by Addl. PP, he stated that he did not distinctly remember, if he had paid the amount of Rs.10,000/ to Mahipal on 07.11.2008. He stated that, as far as he remembered, it was paid on 06.11.2008. His attention was drawn to his complaint Ex.PW10/A where amount of Rs.10,000/ was stated to have been paid on 07.11.2008. He admitted the contents of his complaint to be correct. However, on being crossexamined by Ld. defence counsel, he stated that his truck was not picked up in his presence. He was at the time State Vs. Mahipal Singh Page 14 of 18 15 travelling to Delhi from Bareily. He had gone to Bareily on 05.11.2008 and had returned on 06.11.2008 by his personal car and had reached Delhi by 4.00pm. He had telephonically called Islamuddin and Pappu to his shop. They had then gone to RPF PS Tuglaqabad. They did not meet Inspector Ajeet Singh on that day, despite trying to meet him. They could meet him only on 15.11.2008 at about 3.30pm. On being further crossexamined he admitted having made a statement on 13.01.2009 (Ex.PW10/DA) to Inspector Ugar Sen of RPF, wherein he had stated that he went to Bareily on 5.11.2008 and returned on 07.11.2008. He volunteered that the statement was wrongly recorded by Inspector Ugarsen and was not read over to him. He has further deposed that complaint Ex.PW10/A is not in in his hand writing and the same was scribed by an official of PSACB. He also deposed that the transaction dated 07.11.08 of handing over Rs. 10,000/ to accused was not recorded electronically. He denied that the there was no recording done on 07.11.08 on the second occasion, as there was no transaction of demand and acceptance of bribe.
9.2 To prove demand and acceptance of bribe by the accused Mahipal on 06.11.2008 and 07.11.2008, no other witness has been examined by the prosecution. Pappu is reported to have expired before filing of Challan. Islamuddin, though cited as a witness was not examined, as he was found by the Court to be physically incapable of State Vs. Mahipal Singh Page 15 of 18 16 making a statement. There is thus no other direct evidence of this fact. Prosecution of course, has tried to draw support from the electronic record, which evidence has already been trashed by this court. This leaves the court only with the uncorroborated testimony of Shamshad (PW10). To hold the accused guilty on an uncorroborated statement of the complainant, the evidence ought to be of sterling quality. The question arises whether the testimony of Shamshad PW10 can be held to be of sterling quality. In my opinion, the quality of his testimony falls short of the required quality, so as to be sufficient to record conviction solely on his testimony.
9.3 Though, he has disputed his statement Ex.PW10/DA and denied its contents, stating that he is illiterate and the statement was not read over to him. He has also not deposed before this Court that complainant Ex. PW10/A was read over to him before he signed the same. Prosecution having withheld the scribe of Ex. PW10/A, cannot claim that the contents of Ex.PW10/A were read over to the complainant or that he had accepted them to be correct. Thus introducing a doubt in the integrity of complaint Ex. PW10/A. Shamshad (PW10) has also faltered by stating that the amount of Rs. 15,000/ was paid to the accused on 06.11.08, whereas it is the case of the prosecution that Rs. 5,000/ was paid on 6.1108 and Rs. 10,000/ was paid on 7.11.08. Even on being crossexamined by Ld. Addl. PP witness stated that 'as far as he State Vs. Mahipal Singh Page 16 of 18 17 remembered the amount of Rs. 15,000/ was paid on 6/11/08'. Of course, recording of handing over any of the amounts i.e. Rs. 5,000/ or Rs.10,000/ to the accused, was not made by the complainant. This is not a case where the complainant was not comfortable in handling the AudioVideo recording devices. He has conducted two such recordings on his own with the help of his friend. Thus, the fact of handing over Rs. 15,000/ to accused on 6.11.08 or 7.11.08 has an element of doubt in the testimony of Shamshad (PW10). Shamshad (PW10) has also contradicted his complaint Ex.PW10/A, as regards the factum & date of meeting Inspector Ajit Singh. In the complaint, it is stated that they met Inspector Ajit on 06.11.2008, when he negotiated & settled the bribe amount at Rs.20,000/. On the contrary in his deposition as PW10, he deposed that they could meet Inspector Ajit only on 15.11.2008 at about 03:30 PM - 04:00 PM. It will be, therefore, totally unsafe to record conviction on the basis of uncorroborated statement of complainant, which statement itself is not of unimpeachable character. 10 For the reasons stated in paras8 & 9 above, I am of the considered view that prosecution has failed to prove the charges against the accused Mahipal. The direct evidence of complainant Shamshad (PW10) can not be said to be of sterling quality and the indirect evidence in the shape of electronic record is either inadmissible electronic record or of poor integrity. Conversation dated 15.11.2008 is State Vs. Mahipal Singh Page 17 of 18 18 not proved to be incapable of having been tempered with. I, therefore, hold that the accused Mahipal is entitled to benefit of doubt. He is accordingly acquitted of the charges u/sec.120B of IPC, u/sec.7 of the PC Act r/w/sec.120B of IPC and u/sec.13 of the PC Act r/w/sec.120B of IPC.
11 In terms of sec.437 (A) Cr.P.C., accused Mahipal is directed to furnish a bail bond for the amount of Rs.25,000/ with one surety in the like amount, to appear before the appellate court, as and when such notice is issued, in respect of any appeal, which may be filed against this judgment.
File be consigned to Record Room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 17.03.2015 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Mahipal Singh Page 18 of 18